Porta-Fab Corp. v. Young Sales Corp.

Decision Date25 February 1997
Docket NumberNo. 69740,PORTA-FAB,69740
Citation943 S.W.2d 686
PartiesCORP., Respondent, v. YOUNG SALES CORP. Appellant.
CourtMissouri Court of Appeals

Dean R. Gallego, Clayton, for appellant.

Richard B. Scherrer, St. Louis, for respondent.

RHODES RUSSELL, Presiding Judge.

Defendant, Young Sales Corporation ("Young") appeals from a judgment of the trial court entered on a $240,000 jury verdict in favor of plaintiff, Porta-Fab Corporation ("Porta-Fab"), for breach of a settlement agreement. Young contends the trial court submitted an erroneous verdict director and failed to grant its directed verdict. We find that the verdict director was erroneous and reverse and remand for a new trial. 1

The following evidence was adduced at trial: In 1987, Porta-Fab purchased office buildings and manufacturing facilities located in Chesterfield. Subsequently, Young was hired to install a new roof over the existing roof of Porta-Fab's manufacturing facility. Young presented a written proposal outlining the installation specifications. At trial, there was evidence that Young had presented two different installation specification proposals. The parties disputed which specifications were ultimately agreed upon. The contract price for the new roof was approximately $123,000.

Young began installing the new roof in November 1987. After Young completed installation of the roof, Porta-Fab experienced recurring problems with water leaking through the roof.

Acknowledging that Young had not properly installed the new roof, Young and Porta-Fab entered into an agreement entitled "Settlement Agreement, Warranty, and Guarantee" in December 1989. Under the terms of the settlement agreement, Young agreed to repay Porta-Fab $15,000 of the price paid under the original contract and to forgive an additional $15,000 that was due under the original contract. Paragraph three of the settlement agreement further provided:

Young Sales does hereby agree to warrant and guarantee all material and workmanship associated with Young Sales' performance or nonperformance in installing the roof until March 1, 1998, and to make all repairs necessary to stop leaks or correct other problems with the roof which result from any omission or commission on the part of Young Sales within that period of time. Said repairs shall be commenced within ten (10) days of notification by Porta-Fab of any agent of Young Sales.

After the execution of the settlement agreement, Porta-Fab continued to experience problems with the leaking roof. Young responded to approximately forty calls from Porta-Fab concerning the leaking roof between December 1989 and 1993. Despite Young's attempts to fix the roof, Young never successfully stopped the leaks on a permanent basis.

In an effort to resolve the problem, Porta-Fab hired a roofing consultant to perform an inspection and analysis of the roof. The roofing consultant determined that Young had not installed the roof in accordance with the specifications, and that Young's attempted repairs since the execution of the settlement agreement had not corrected the problems with the roof. The roofing consultant concluded that the roof needed to be replaced.

Porta-Fab eventually hired Werner Brothers Roofing Company ("Werner Brothers") to repair the leaking portions of the roof. Although the repairs performed by Werner Brothers were effective, Werner Brothers also recommended that the entire roof needed to be replaced. Werner Brothers offered to replace the roof for $301,269.

Porta-Fab subsequently filed suit against Young in December 1993 for breach of contract, seeking damages for the replacement of the roof and attorney fees incurred in enforcing the settlement agreement.

Trial began in the Circuit Court of St. Louis County on October 2, 1995. Porta-Fab's position at trial was that under the terms of the settlement agreement, it was entitled to have the roof replaced. Porta-Fab maintained that Young's agreement to warrant and guarantee meant that if Young could not permanently fix the roof, then Young was obligated to construct a new roof. Young's position at trial was that Porta-Fab was not entitled to a new roof. According to Young, the settlement agreement was a maintenance contract in which it was required to repair the roof when it leaked.

Young's motion for a directed verdict at the close of the evidence was denied. The trial court then submitted, over Young's objection, Porta-Fab's verdict director, Instruction Number 7. Instruction Number 7 provided:

Your verdict must be for the plaintiff if you believe:

First, defendant agreed to warrant and guarantee all performance and workmanship associated with defendant's performance or nonperformance in installing the roof until March 1, 1998, and to make all repairs necessary to stop leaks or correct other problems with the roof which result from any omission or commission on the part of defendant within that period of time, and

Second, defendant did not fulfill its agreement to warrant and guarantee all materials and workmanship associated with defendant's performance or nonperformance in installing the roof, or defendant failed to make all repairs necessary to stop leaks, or

defendant failed to correct other problems with the roof which resulted from any omission or commission on the part of defendant, and

Third, plaintiff was thereby damaged.

unless you believe that plaintiff is not entitled to recover by reason of Instruction Number 9.

MAI 26.02 [1980 Revision] Modified Submitted by Plaintiff

Young's attorney objected to the submission of Instruction Number 7 because it was based upon MAI 26.02. Young contended that the proper verdict director for Porta-Fab's cause of action should be based upon MAI 26.06. Young also argued that the instruction was argumentative and unduly emphasized certain evidentiary facts. Finally, Young objected to the submission of the instruction because the second paragraph of the verdict director provided the jury with a roving commission.

After a six day trial, the jury returned a verdict in favor of Porta-Fab, awarding damages in the amount of $240,000 and $99,000 in attorney fees. Young filed a motion for judgment notwithstanding the verdict or in the alternative, a motion for a new trial. The trial court denied Young's motion for j.n.o.v. and new trial. The trial court entered judgment in accordance with the jury's verdict. This appeal follows.

In its first two points, Young contends the trial court erred in submitting Instruction Number 7. Since we find merit in Young's second point that the trial court erred in submitting Instruction Number 7 because it was patterned after MAI 26.02 rather than MAI 26.06, we do not discuss Young's first point.

In its second point, Young contends the trial court erred in submitting Instruction Number 7 because it was patterned after MAI 26.02. Young argues that Instruction Number 7 should have been patterned after MAI 26.06 rather than MAI 26.02 because the terms of the settlement agreement were disputed.

MAI 26.02 is to be used only where there is no dispute concerning the terms of the agreement and the sole question for the jury to decide is whether the defendant has breached the agreement. James O'Brien & Associates v. American Sportsman Travel, Inc., 819 S.W.2d 62, 64 (Mo.App.1991). MAI 26.06 is appropriate where there is a dispute as to 1) what agreement was made and 2) whether that agreement was breached. Cranor v. Jones Co., 921 S.W.2d 76, 82 (Mo.App.1996). Where the terms of an agreement are at issue, the appropriate instruction to use is MAI 26.06. American Sportsman, 819 S.W.2d at 64. The submission of MAI 26.02, when MAI 26.06 is the applicable instruction, constitutes prejudicial error. Id.

Young argues that the trial court erred in submitting an instruction based upon MAI 26.02, rather than MAI 26.06 because Porta-Fab's verdict director failed to: 1) hypothesize its version of the contract; 2) require a finding that Porta-Fab performed its agreement; and 3) include MAI 26.06's paragraph third requiring the jury to find "Defendant failed to perform [its] agreement." Young argues that Porta-Fab's failure to use a mandatory approved instruction (MAI 26.06) was erroneous and prejudicial.

In its brief, Porta-Fab argues that the trial court did not err in submitting Instructing Number 7 because it was not based upon MAI 26.02, but MAI 26.06. Porta-Fab states that Instruction Number 7 was a modified version of MAI 26.06, not MAI 26.02. Porta-Fab contends that although its verdict director was a modified version of MAI 26.06, the instruction was improperly identified as a modification of MAI 26.02. Porta-Fab argues that the mistaken notation on the instruction could not have prejudiced Young because Young had tendered instructions based on both MAI 26.02 and 26.06, and therefore, could not have been confused by the erroneous notation on the instruction.

When reviewing cases for instructional error resulting from a deviation from MAI format, we apply the following principles: 1) where MAI prescribes a particular instruction, the...

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8 cases
  • A.G. Edwards & Sons, Inc. v. Drew
    • United States
    • Missouri Court of Appeals
    • July 31, 1998
    ...and terms of a contract are undisputed and the sole issue is whether defendant breached the contract. Porta-Fab Corp. v. Young Sales Corp., 943 S.W.2d 686, 689 (Mo.App.1997). MAI 26.06 is appropriate where there is a dispute as to 1) what agreement was made, and 2) whether that agreement wa......
  • Ross-Paige v. Saint Louis Metro. Police Dep't
    • United States
    • Missouri Supreme Court
    • June 28, 2016
    ...This includes s respondent defending a challenge to instructional errors raised by an appellant. See Porta–Fab Corp. v. Young Sales Corp., 943 S.W.2d 686, 690 (Mo.App.E.D.1997) (holding respondent was bound by theory presented at trial concerning instruction that deviated from the MAI). Not......
  • Oliver v. Ford Motor Credit Co.
    • United States
    • Missouri Court of Appeals
    • August 19, 2014
    ...breached the contract.” A.G. Edwards & Sons, Inc. v. Drew, 978 S.W.2d 386, 393 (Mo.App.1998) (citing Porta–Fab Corp. v. Young Sales Corp., 943 S.W.2d 686, 689 (Mo.App.1997). “MAI 26.06 is appropriate where there is a dispute as to 1) what agreement was made, and 2) whether that agreement wa......
  • Carroll v. Kelsey
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    • Missouri Court of Appeals
    • August 14, 2007
    ...raised in the motion only provide a specific basis for the general objection made at trial. They properly cite Porta-Fab Corp. v. Young Sales Corp., 943 S.W.2d 686 (Mo.App.1997), for the proposition that a general objection to an instruction at trial may be later specified in a motion for a......
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