Rosehill Gardens Inc. v. Luttrell

• Decision Date: 29 January 2002
• Docket Number: No. WD 59489.,WD 59489.
• Citation: 67 S.W.3d 641
• Parties: ROSEHILL GARDENS, INC., Respondent, v. David LUTTRELL, Appellant, and Nancy Luttrell, Defendant.
• Court: Missouri Court of Appeals

67 S.W.3d 641

ROSEHILL GARDENS, INC., Respondent, v. David LUTTRELL, Appellant, and Nancy Luttrell, Defendant.

No. WD 59489.

Missouri Court of Appeals, Western District.

January 29, 2002.

Robert B. Best, Jr., Anne Schiavone, Kansas City, for Respondent.

Tony Shapiro, Overland Park, for Appellant.

Before SPINDEN, C.J., EDWIN H. SMITH, J., and TURNAGE, Sr.J.

EDWIN H. SMITH, Judge.

David Luttrell appeals the judgment of the Circuit Court of Jackson County awarding damages of $55,148 plus contractual interest and attorney's fees to the respondent, Rosehill Gardens, Inc., on its breach of contract claim against the appellant and his then wife, Nancy Luttrell.¹ With respect to its contract claim, the respondent alleged in its petition and the trial court found that the appellant and his ex-wife had failed to pay, as contracted, for the landscaping work done by the respondent at their then residence.

The appellant raises two points on appeal. In Point I, he claims that "[t]he trial court erred in entering judgment for Respondent because [he] had expressly told Respondent that he was not authorizing Respondent's work and that any work done by Respondent would have to be paid by Nancy Luttrell, thus Respondent's legal theories, whether they are based on contract, apparent or implied authority, or quantum meruit, must fail." In Point II, he claims that the trial court erred in entering judgment against him and awarding the respondent damages in the total amount of its invoices, for breach of the landscaping contract signed by his ex-wife, because: (1) in doing so, the trial court misapplied the law in that he was not a party to the contract since he had not signed it; and (2) even if he was a party and bound by the contract, under the warranty provided therein, he was due a set-off for the plants that had died at the time of trial.

We dismiss the appeal and sustain the respondent's motion for an award of attorney's fees on appeal, remanding to the trial court for the sole purpose of determining the reasonable amount of the award.

Facts

In March of 1999, the appellant and his then wife, Nancy Luttrell, contacted Charlie Hopper, an employee of the respondent, requesting him to provide a landscaping plan for their residence at 5300 Belleview, Kansas City, Missouri, which at that time they jointly owned. In response to the request, Hopper submitted a landscaping proposal on April 6, 1999, to the appellant and Nancy, incorporating their suggestions. The proposal was never signed due to the appellant's desire to make changes thereto. In that regard, the appellant believed that he could save money by doing some of the work and providing some of the materials provided for in the proposal through his construction company.

Between April 1999 and October 1999, Hopper met with the appellant and Nancy once or twice a month to discuss desired changes to the landscaping proposal. Sometimes he would meet with both of them and sometimes just with Nancy. On October 6, 1999, Hopper submitted a second proposal to the appellant and Nancy for their acceptance and signatures. On November 16, 1999, Hopper met with the appellant at the residence and made several revisions to the second proposal. The appellant indicated to Hopper that he wanted to get the proposal signed and commence work as soon as possible, but that Hopper needed to meet with Nancy and get her to sign off on the proposal because "she was the boss." The following day, Hopper met with Nancy and discussed the changes the appellant wanted made to the second proposal. After Hopper and Nancy had discussed the changes, she telephoned the appellant and went over the details of the revised second proposal with him. After talking with the appellant, Nancy signed the revised second proposal and authorized the respondent to begin work. The revised second proposal was never signed by the appellant.

The respondent began work at the appellant's residence on November 17, 1999, unaware that the appellant had moved out of the residence in October 1999, intending to dissolve his marriage to Nancy. After several days of delivering trees and shrubs, and preparing the soil for planting, Hopper called the appellant's construction company to inquire as to when the topsoil, which was to be provided by the appellant, would be delivered to the residence. An employee of the appellant, Tim Cupp, spoke with Hopper and informed him that the appellant and Nancy were getting a divorce and that the appellant would no longer be providing the topsoil for the project. At this time, nearly 30% of the first phase of the project had been completed. At that point, Hopper told the respondent's employees to cease work until he figured out who would be providing the topsoil. Hopper then contacted Nancy, who informed him that she would call him back after discussing the problem with the appellant. A few minutes later, Nancy called Hopper back and told him that the topsoil was to be provided by the respondent. The respondent made arrangements for the necessary topsoil to be delivered, at which time the landscaping work continued.

Hopper saw the appellant almost every other day while the landscaping was being done, and the appellant would frequently answer questions that arose in regard thereto. Hopper testified that the appellant "took the lead on the majority of what went on during the project and the decisions with the money."

The respondent sent an initial invoice for $33,198 to the appellant's residence on November 29, 1999, which reflected the cost of the goods and services provided by the respondent during the first few weeks of work. The respondent completed the work in early December 1999. A second invoice for $21,950, dated December 16, 1999, which reflected the cost of the remaining goods and services that had been provided, was sent to the appellant's residence. The respondent never received any payment on the first or second invoice from either the appellant or Nancy.

Having failed to receive payment as agreed, the respondent filed a two-count petition against the appellant and Nancy on September 5, 2000, in the Circuit Court of Jackson County, alleging breach of contract and quantum meruit. The appellant filed his answer to the respondent's petition on October 6, 2000, raising several affirmative defenses to the breach of contract claim, including that he was not a party to the contract and that Nancy lacked the express or implied authority to contract with the respondent on his behalf.

A one-day bench trial was held on December 7, 2000. After hearing the evidence, the trial court found that the appellant and Nancy were jointly and severally liable under the landscaping proposal signed by Nancy and awarded the respondent damages in the entire amount of its invoices plus interest, attorney's fees and expenses, as provided in the agreement.² On December 8, 2000, the trial court entered its judgment for the respondent awarding it $55,148 for labor and materials; $7,457.48 for attorney's fees and expenses; and $9,740.41 in accrued interest.

This appeal follows.

Standard of Review

Our review of a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). As such, we will affirm the trial court's award in favor of the respondent unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32; Laclede County v. Douglass, 43 S.W.3d 826, 827 (Mo. banc 2001).

I.

In Point I, the appellant claims:

The trial court erred in entering judgment for Respondent because Appellant David Luttrell had expressly told Respondent that he was not authorizing Respondent's work and that any work done by Respondent would have to be paid by Nancy Luttrell, thus Respondent's legal theories, whether they are based on contract, apparent or implied authority, or quantum meruit, must fail.

Before addressing the merits of the appellant's claim in this point, we first must address whether his point relied on substantially complies with Rule 84.04(d)³ so as to properly preserve his claim for review.

Rule 84.04(d) sets forth the requirements for valid points relied on, and reads:

(1) Where the appellate court reviews the decision of a trial court, each point shall:

(A) identify the trial court ruling or action that the appellant challenges;

(B) state concisely the legal reasons for the appellant's claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

The point shall be in substantially the following form: "The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error ], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error]."

Rule 84.04(d). "`Thus, the rule requires that each point relied on: (1) identify the trial court's ruling or action that the appellant is challenging on appeal; (2) state the legal reasons for the appellant's claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.'" Wilson v. Carnahan, 25 S.W.3d 664, 666 (Mo.App.2000) (quoting Hall v. Mo. Bd. of Prob. & Parole, 10 S.W.3d 540, 543 (Mo.App.1999)). "`The function of this rule is to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review.'" Id. "Rule 84.04(d) `sets forth a form for a point relied on that satisfies the [rule's] requirements.'" Id. (quoting In re Marriage of Wright, 990 S.W.2d 703, 708 (Mo.App.1999)).

In his point relied on, the appellant fails to specify the legal reason or reasons for his claim of error, as required by the rule. It is well settled that:

[c]ompliance with Rule 84.04 briefing requirements is...