393 S.W.3d 68
Mo. Ct. App.2012Background
- Contractor and Owner entered into a February 28, 2007 cost-plus contract to renovate a historic Springfield building.
- Project relied on historic tax credits; Exhibit 29 documented final project costs though not signed or attested.
- Owner leased the building to Inspired Commerce, LLC (Tenant) under a 33-year master lease with occupancy expectations around December 2008.
- Contractor was terminated January 29, 2009 for cause; dispute included alleged overcharges and defective work; judgment awarded net $228,138.72 to Owner after offset.
- Trial evidence included Day’s defect inspections (basement slab, windows, tuck-pointing) and Martin’s testimony valuing diminution in value at $450,000.
- Trial court found Contractor breached, awarded Owner costs for repair/diminution, and denied Contractor’s claims for attorney fees and interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages from leasehold and rent impact | Owner sustained damages beyond merely rent; leasehold interest remained exploitable and damages accrued. | Owner’s damages depended solely on rent loss under the master lease; Tenant's duties obviated Owner's liability. | Point denied; Owner could recover damages beyond rent. |
| Waiver of notice to cure termination | Waiver of the 10-day cure notice was intended by Buche’s email; proper authorities support waiver. | No explicit waiver of cure rights; termination for cause remained valid regardless of form. | Point denied; clear waiver established; termination for cause proper. |
| Labor cost mark-up (30%) recoverability | Contractor’s labor costs, including burden, were within the cost of work; 30% markup justified by contract terms. | 30% markup was not supported by the contract; wages defined narrowly; markup not recoverable. | Point denied; 30% markup not allowed; damages limited to actual costs. |
| Diminution in value vs. cost of repair | Diminution or repair cost both applicable; evidence supported diminution and repair costs for windows and basement floor. | Evidence insufficient to prove diminution amounts; preferred measure is cost of repair where feasible. | Point denied; trial court properly balanced diminution and repair costs with evidence; no prejudice. |
| Attorney fees and interest | Contractor breached; Owner entitled to remedies including attorney fees under the agreement. | Contractor was not prevailing party or breach did not warrant fees; interest may not apply. | Point denied; contract breach by Contractor barred fee recovery; interest denied. |
Key Cases Cited
- McCullough v. Doss, 318 S.W.3d 676 (Mo. banc 2010) (standard of review in bench trials)
- Grider v. Tingle, 325 S.W.3d 437 (Mo.App. S.D.2010) (definition of substantial evidence)
- Houston v. Crider, 317 S.W.3d 178 (Mo.App. S.D.2010) (against-the-weight-of-the-evidence standard)
- Wildflower Cmty. Ass’n, Inc. v. Rinderknecht, 25 S.W.3d 530 (Mo.App. W.D.2000) (deference to trial court findings of witness credibility)
- Tower Prop. Co. v. Allen, 33 S.W.3d 684 (Mo.App. W.D.2000) (judgment affirmed under any reasonable theory supported by the evidence)