Trident Group v. Mississippi Valley Roofing

• Decision Date: 30 January 2009
• Docket Number: No. ED 90268.,ED 90268.
• Citation: Trident Group v. Mississippi Valley Roofing, 279 S.W.3d 192 (Mo. App. 2009)
• Parties: TRIDENT GROUP, LLC and Fazimo, Inc., Plaintiffs/Respondents, v. MISSISSIPPI VALLEY ROOFING, INC., Defendant/Appellant.
• Court: Missouri Court of Appeals

279 S.W.3d 192

TRIDENT GROUP, LLC and Fazimo, Inc., Plaintiffs/Respondents, v. MISSISSIPPI VALLEY ROOFING, INC., Defendant/Appellant.

No. ED 90268.

Missouri Court of Appeals, Eastern District, Division Four.

January 30, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 10, 2009.

The Hullverson Law Firm, James E. Hullverson, Jr., St. Louis, MO, for Appellant.

Federer and Federer, Ian Christopher Simmons, St. Charles, MO, for Respondent.

Before BOOKER T. SHAW, P.J., and KATHIANNE KNAUP CRANE, J., and MARY K. HOFF, J.

OPINION

PER CURIAM.

Mississippi Valley Roofing, Inc. (Defendant) appeals from the judgment resulting from a suit for roof damages to two commercial buildings, Brookwood Shopping Center (Brookwood) and Poor Richards Building (Poor Richards), owned by Fazimo, Inc. (Fazimo) and managed by Trident Group LLC, (Trident) (collectively Plaintiffs). The judgment awarded Fazimo a total of $89,500 in damages, plus costs, and awarded Trident $0 in damages.

On appeal, Defendant argues the trial court erred in: (1) overruling its objection to the admission of a roofing report provided by Steven Gray (Gray), a roofing consultant, as hearsay; (2) overruling its objections to Instructions 13 and 16, modeled after MAI 26.02; (3) overruling its objections to Instructions 29 and 34, modeled after MAI 17.02; (4) sustaining Plaintiffs' objections that Defendant's cross-examination of several witnesses was "beyond the scope of direct examination"; (5) overruling its objection that Mark Vigna (Vigna), Poor Richards tenant, was a "surprise witness"; (6) overruling its objection that Plaintiffs "misstated the law" during closing argument; (7) overruling its objection to Plaintiffs' submitting multiple "theories" of recovery, in tort and contract, which resulted in double recovery; (8) denying its objection to the verdict, as inconsistent and contradictory, and demand for mistrial; and (9) denying its motion to dismiss Trident for lack of standing. We affirm in part, reverse in part, and remand with directions.

Factual and Procedural Background

The record, viewed in the light most favorable to the jury verdict, reveals Plaintiffs and Defendants had a long-standing work relationship since the mid-1990s. On or about June 12, 2002, Plaintiffs entered into a roofing contract with Defendant whereby Defendant agreed to install a GAF Ruberoid Roofing System on Brookwood. The contract price was $39,200. The contract was signed by Defendant but not by Plaintiffs. Defendant began work on Brookwood sometime around August of 2002 and was paid in full for the work performed. On or about June 3, 2003, Plaintiffs entered into a roofing contract with Defendant whereby Defendant agreed to install a GAF Ruberoid Roofing System on Poor Richards. The contract price was $24,980. The contract was signed by both Defendant and Plaintiffs. Plaintiffs paid in full for the work performed on Poor Richards.

Shortly following the installation of the roofing systems, Plaintiffs began complaining of leaks. Despite numerous calls to Defendant, who allegedly attempted to repair the leaks, the problems with the roof continued.

Eventually, Plaintiffs filed an eight-count petition seeking damages for breach of contract and negligence against Defendant. Defendant moved to dismiss Trident, as property manager, for lack of standing to sue alleging that only the owner of real property had standing to sue for damages. Defendant also moved to dismiss the action in that the breach of contract and negligence claims were improperly united. The trial court denied Defendant's motions.

Defendant then filed motions to strike and for more definite pleadings, particularly allegations concerning building code violations and special damages and reiterated the objection that Trident lacked standing to sue as well as that the breach of contract and negligence claims were improperly united. The trial court granted Defendant's motion only as to the building code violations.

Plaintiffs then filed their First Amended Petition. In Count I, Plaintiffs alleged breach of contract and warranties with respect to Brookwood in the amount of $100,833. In Count II, Plaintiffs alleged professional negligence with respect to Brookwood in the amount of $25,000. In Count III, Plaintiffs alleged defective performance with respect to Brookwood in the amount of $25,000. In Count IV, Plaintiffs alleged breach of contract and warranties with respect to Poor Richards in the amount of $53,077. In Count V, Plaintiffs alleged professional negligence with respect to Poor Richards in the amount of $25,000. In Count VI, Plaintiffs alleged defective performance with respect to Poor Richards in the amount of $25,000. In Count VII, Plaintiffs alleged fraudulent misrepresentation with respect to both buildings in the amount of $25,000. In Count VIII, Plaintiffs alleged negligent misrepresentation with respect to both buildings in the amount of $25,000.

Defendant renewed its motions and objections to Plaintiffs' Amended Petition, including that Trident lacked standing to sue. Defendant also objected to allegations of special damages by class and to fraudulent misrepresentation and ordinance violations pleadings, and argued special damages had to be limited to those pled. The trial court denied Defendant's motion, but ordered Plaintiffs to specify damages in discovery.

In its Answer to Plaintiffs' Amended Petition, Defendant denied it entered into a contract on June 12, 2002, to repair the Brookwood roof, but admitted the existence of the June 3, 2003, contract to repair the Poor Richards roof. Under its "affirmative defenses," Defendant repeated objections related to Trident's lack of standing.

Plaintiffs filed a motion to strike Defendant's affirmative defenses arguing that they were not true defenses and/or were improperly pled. The trial court granted Plaintiffs' motion.

Thereafter, Defendant filed written motions for directed verdict at the close of Plaintiffs' case and again at the close of Defendant's case arguing that Plaintiffs failed to establish the existence of a June 12, 2002, contract, relating to Brookwood, or that they sustained any actionable damage resulting from the performance of any contract between themselves and Defendant. The trial court denied Defendant's motions.

Following the close of all evidence and argument by both parties, the jury found in favor of Fazimo for breach of contract on the Brookwood and Poor Richards properties (Verdicts C and D, $39,200 and $24,980, respectively) and for professional negligence (Verdicts G and H, $12,660 and $12,660, respectively) and assessed damages in the amount of $89,500. The jury found in favor of Trident for breach of contract (Verdicts A and B) and assessed percentage of fault at 50% for Trident on the professional negligence claims (Verdicts E and F) but assessed $0 damages. The trial court entered judgment on the verdicts. Defendant filed timely post-trial motions, which the trial court denied. This appeal follows.

Inconsistent Theories of Recovery

Defendant asserts numerous claims on appeal. However, we initially address Defendant's point regarding the issue of "election of inconsistent theories of recovery" as a threshold matter.

In Point VII, Defendant argues the trial court erred in overruling its objection to Plaintiffs submitting multiple "theories" of recovery, in tort and contract. Specifically, Defendant contends the trial court erred in allowing Plaintiffs to submit to the jury multiple "theories" with separate damages lines thereby inviting "impermissible and inconsistent double recoveries." We agree.

Under the election of inconsistent theories of recovery doctrine, a party must elect between theories of recovery that are inconsistent, even though pled together as permitted by Rule 55.10, before submitting the case to the trier of fact.¹ Trimble v. Pracna, 167 S.W.3d 706, 710 (Mo. banc 2005); Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 506-07 (Mo. banc 1993). "If two counts are so inconsistent that proof of one necessarily negates, repudiates, and disproves the other, it is error to submit them together." Id. (citing Whittom, 851 S.W.2d at 507). Determination of when two theories are inconsistent depends heavily upon the facts of each case. Id. "Theories are inconsistent and require an election only if, in all circumstances, one theory factually disproves the other." Id.

Under the facts of this case, Plaintiffs could not sue Defendant to recover separately for damages resulting from breach of the contract and recover additional damages resulting from Defendant's negligence in installing the roofing system. See Newell Rubbermaid, Inc. v. Efficient Solutions, Inc., 252 S.W.3d 164, 175 (Mo. App. E.D.2007) (not error to submit negligence and breach of the parties contract as alternative verdict directors). A plaintiff is only entitled to be made whole once, and the election of theories doctrine is intended to prevent a plaintiff from recovering more than one full recovery for the same harm. Trimble, 167 S.W.3d at 711.

Here, under Verdicts C and D, the jury found for Plaintiffs concluding that Defendant breached the contract and that Plaintiffs were entitled to damages in the amounts of $39,200 and $24,980, respectively, from the failure to complete the work in a good and workmanlike manner, according the GAF installation requirements, and BOCA Building Codes. Having so found, the jury could not also find under Verdicts G and H that Plaintiffs were entitled to additional damages in the amounts of $12,660 and $12,660, respectively, for negligence. Based on the facts of this case, Plaintiffs were receiving double recovery for the same damages in submitting both claims for breach of contract and claims for professional negligence, without making an election prior to submitting the matter to the jury or electing after the jury verdicts. We reverse as to Verdict G and Verdict...