Percy's High Performance, Inc. v. Krough
2013 Mo. App. LEXIS 1260
| Mo. Ct. App. | 2013Background
- Krough and Baker appeal a judgment in Percy’s favor on contract breach, challenging the damages awarded and seeking reversal; Percy’s moves for appellate attorney’s fees under Special Rule 14.2, which the court grants and remands for a fee-determination hearing.
- Contract for Deed dated March 1, 2008: purchase price $305,000 with $1,000 down and monthly payments of $1,710; balloon payment of $304,000 due October 1, 2009.
- Krough and Baker failed to secure financing, State Farm appraisal valued the property at $235,000, leading to a loan denial.
- Percy’s notified default on November 6, 2009 and provided cure options; Krough and Baker vacated in mid-November 2009; Percy’s took possession and attempted to sell the property.
- A June 2010 letter to resolve the matter elicited continued nonpayment; an auction in May 2010 yielded no bids.
- The trial court found breach and awarded Percy’s $69,000 damages (difference between $304,000 and $235,000) and $8,000 in trial attorney’s fees; on appeal, issues focus on remedies, weight of the evidence, and defenses, with additional fee-inevitable issue on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contract permitted damages rather than specific performance | Krough/Baker: contract lacked damages remedy; specific performance implied | Percy’s: damages remedy supported by trial; specific performance not required | Point I & II denied; invited-error doctrine applies |
| Whether the damage award is supported by the evidence | Damages not proved beyond dispute; value evidence conflicting | Trial court resolved conflicts; value of $235,000 supported by evidence | Point III denied; damages within range of evidence |
| Whether the evidence supports cancellation/affirmative defenses | Evidence shows contract cancelled; Percy’s had no need for remedy | Krough/Baker bore burden to prove cancellation; credibility determinations favor Percy’s | Point IV denied; trial court credibility findings supported judgment for Percy’s on defenses |
| Attorney’s fees on appeal | N/A | N/A | Motion granted; remand to determine reasonable appellate attorney’s fees; judgment to be adjusted accordingly |
Key Cases Cited
- Pierson v. Kirkpatrick, 357 S.W.3d 293 (Mo.App.S.D.2012) (invited error doctrine applies when party objects to evidence supporting other remedy)
- Lau v. Pugh, 299 S.W.3d 740 (Mo.App.S.D. 2009) (binding positions at trial limit appellate relief)
- Howsmon v. Howsmon, 77 S.W.3d 752 (Mo.App.S.D.2002) (invited error; can't complain of error invited by own conduct)
- White v. Director of Revenue, 321 S.W.3d 298 (Mo. banc 2010) (burden of proof on affirmative defenses; if not believed, other party may prevail)
- Crabby’s Inc. v. Hamilton, 244 S.W.3d 209 (Mo.App.S.D.2008) (measure of seller’s damages for buyer’s breach of land contract is purchase price minus fair market value at breach)