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Roy v. MBW Construction, Inc.

Court of Appeals of Missouri, Western District, Third Division

November 3, 2015

H. DAVID ROY, Appellant,
v.
MBW CONSTRUCTION, INC., Respondent

Page 679

Appeal from the Circuit Court of Clay County, Missouri. The Honorable Daren L. Adkins, Judge.

For Appellant: Stephen W. Nichols, Kansas City, MO.

For Respondent: Breahn R. Vokolek and Gary K. Patton, Liberty, MO.

Before Division Three: Joseph M. Ellis, Presiding Judge, and Karen King Mitchell and Gary D. Witt, Judges. Joseph M. Ellis, Presiding Judge, and Gary D. Witt, Judge, concur.

OPINION

Page 680

Karen King Mitchell, Judge

H. David Roy appeals the trial court's judgment in favor of Respondent, MBW Construction, Inc., on his claims for breach of contract, unjust enrichment, negligent misrepresentation, and violation of the Missouri Merchandising Practices Act.[1] Roy argues that the trial court erroneously applied the law and that its judgment was against the weight of the evidence regarding his breach of contract and unjust enrichment claims. Roy also argues that the court erred in denying his motion for new trial based upon newly discovered evidence demonstrating that one of MBW's witnesses gave deliberately false testimony. We affirm.

Background

In 2008, Roy toured a model home built by MBW, known as the Avalon III. On October 3, 2008, Roy entered into a contract with MBW (through its president, Keith McConnell) to purchase a new home from MBW, based upon the Avalon III model, with various upgrades and alterations. The agreed-upon purchase price for

Page 681

the home was $490,000. Attached to the contract were various specifications for all parts of the home, including specific " allowance amounts" for items such as lighting, carpet, tile, sod, landscaping, and appliances, as well as the various alterations and upgrades from the model home. The contract provided that:

The Purchase Price shall be automatically (i) increased by the amount of all expenditures in excess of applicable allowance amounts, (ii) decreased by the amount by which expenditures are less than applicable allowance amounts, and (iii) increased or decreased, as the case may be, as expressly provided elsewhere in this Contract.

Paragraph 8 of the contract addressed how " change orders and allowances" were to be handled by the buyer and the builder. Specifically, it provided that:

BUILDER, at its option, may require that any net increase in the Purchase Price resulting from change orders, allowance overages and other matters be paid to BUILDER and added to the Deposit at any time prior to closing or may wait for payment to be made to BUILDER at the closing (or when later presented to BUYERS by BUILDER to the extent not included in the calculations as of the closing). Net change order amounts shall constitute an increase or decrease in the Purchase Price, as the case may be. Closing does not alleviate either party's obligation to reconcile charges or credits on any allowance, change order or other item.

Throughout construction of the home, Roy requested various alterations and made decisions regarding items for which allowances were identified. On June 16, 2009, MBW emailed Roy a spreadsheet identifying costs incurred from both change orders and allowance overages. The spreadsheet contained a total of 16 items, with a total charge of $19,316.

Two days later, on June 18, 2009, the parties executed an " Amendment to Real Estate Sales Contract," which stated:

THIS AMENDMENT modifies the terms of the above-referenced Real Estate Contract. Except for the following changes, all of the other provisions of the contract shall remain in full effect.
All parties to the above referenced contract agree to the following:
1. Final sales price is $401,814.00.
2. Closing is extended to be on June 18, 2009.

The amendment further stated:

Buyer request[s] itemized charges and receipts on the 16 overage items totaling $19,316 be provided within 10 working days of closing for review.
MBW, seller, to complete the following items within a reasonable time ...

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