Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Charles County 1311-CC00219
Honorable Nancy L. Schneider
M. CLAYTON III, PRESIDING JUDGE
Engineering, Inc. ("Appellant") appeals the
judgment entered upon a jury verdict awarding Beris
Construction, L.L.C. ("Respondent") $51, 500 on
Respondent's claims for professional negligence and
contribution. Respondent cross-appeals the jury's damages
award. We affirm in part, reverse in part, and remand for a
new trial on damages.
Facts Giving Rise to the Underlying Dispute
and Jessica Eisenmann (collectively
"Plaintiffs") contracted with Parkway Joint Venture to
build a home at 115 Place de Yeager ("Lot Eight"),
part of the Chateau Du Bois subdivision in the City of Lake
Saint Louis, Missouri ("the City"). Parkway Joint
Venture then contracted with Respondent to serve as the
general contractor for the project. Respondent was owned by
Richard Podhorn, who was also the manager of Parkway Joint
Venture. Respondent hired Michael Schwada as the project
manager to oversee construction of Plaintiffs' home.
Joint Venture hired M Engineering to prepare grading plans
for the Chateau Du Bois subdivision and the plot plan for Lot
Eight, which showed the final planned grades and location of
the home on the lot. The plot plan for Lot Eight contained no
specifications for the grading to be performed on the lot
prior to construction, therefore, the grading was conducted
pursuant to the specifications contained in the subdivision
grading plans. In relevant part, these specifications
provided that all the fill used must consist of low plastic
soils as approved by the soils engineer.
construction could begin on Lot Eight, soil work was needed
including leveling the lot down to the natural earth and
bringing in a significant amount of soil fill. The fill
brought onto Lot Eight had to be laid, leveled, packed, and
tested. Because Respondent did not employ engineers,
Respondent hired Appellant to perform soil testing and
observation on Lot Eight and to provide a letter from a
professional engineer to the City certifying the soil was
properly compacted and would support the home.
Lot Eight was excavated down to reach natural dirt, Schwada
had Appellant inspect the excavation and verify that it was
sufficient. Then, fill dirt was laid on the lot in one-foot
lifts and compacted. After each lift of fill was laid and
compacted on Lot Eight, Schwada contacted Appellant to test
or observe the fill on the site, in order to verify the
lift's compaction rate was acceptable before the next
lift was laid. However, Appellant did not test or observe at
least one lift's compaction rate. The layer of fill not
tested or observed by Appellant was the lift between six and
seven feet below grade.
issuing a building permit, the City required: "Prior to
the placement of concrete the sub grade shall be tested by an
approved geotechnical firm to insure the bearing capacity of
the sub grade. A report of this test shall be provided to the
Lake Saint Louis Building Department." This report was
part of the work for which Respondent hired Appellant. On
December 2, 2011, Appellant sent Schwada the certification
letter for Lot Eight, which was completed by Appellant's
employees Blake Marquart and Karen Albert, a professional
certification letter, bearing Albert's professional seal,
stated, "Cochran was on site to perform compaction
observation and testing services on the fill materials placed
to bring the lot to basement subgrade elevation." The
letter then outlined the services performed by Appellant and
its findings. The letter explained fill materials
"consisting of high plastic clay, clayey rock, and low
plastic silty clay" were placed in approximately
one-foot thick lifts, and "the materials were tested to
meet project specifications. Materials not able to be tested
were visually observed and approved." The letter
concluded, "[n]o soft unacceptable areas were observed,
" and, "the materials placed under observation met
or exceeded the minimum compaction requirements and are
suitable for support of the residential construction."
certification letter contained no limitation or qualification
as to the extent of Appellant's testing or observation of
the soils on Lot Eight. There was no disclaimer that Albert
did not review the grading specifications, which mandated no
high plastic soils were to be used in the fill material.
Further, the letter did not indicate Appellant did not test
or observe placement of all the lifts of fill laid on Lot
Eight. Appellant did not state in the certification letter or
inform Respondent or the City that it did not test or observe
the lift of fill between six and seven feet below
relied on the certification letter to ensure the soil would
support the weight of Plaintiffs' home. Respondent then
provided the letter to the City, and the City relied on its
certifications when issuing the building permit to allow
Respondent to proceed with construction on Lot Eight. If the
letter had not been supplied to the City, the City would not
have issued a building permit and Plaintiffs' home would
not have been built. Further, if the letter had indicated
Appellant did not test or observe all of the lifts placed on
Lot Eight, the City would have rejected the certification
letter and would have required the proper certification.
March 17, 2012, Carl noticed cracking and leaking in the
basement of the house and informed Respondent of the issue.
On or around March 26 or 27, 2012, Tom Rothermich of Flint
Hill Engineering went to Lot Eight to consult on the
installation of a retaining wall at the request of Podhorn
and Cochran. Rothermich was not informed of any problems
regarding slope failure when he was asked to design and
install the retaining wall. Therefore, Rothermich did not
perform any additional soil stability or global stability
analysis of the area where the retaining wall was to be
installed. After the wall was completed on April 4, 2012,
Rothermich provided a letter stating the construction of the
wall with Redi-Rock was acceptable and conformed with or
exceeded the design criteria.
Plaintiffs observed more cracks in the walls and foundation
prior to closing on the home, brought the cracks to
Podhorn's attention, and the cracks were sealed. In an
email sent on June 10, 2012, Carl demanded an additional
warranty to specifically address the "significant
settling and cracking of the foundation" to cover future
repairs for no less than ten years. On June 22, 2012, no
cracks remained and Plaintiffs closed on the house,
purchasing it for approximately $615, 000. Plaintiffs had not
received the additional warranty prior to that date, but
received a warranty shortly after closing.
cracks observed in the house prior to closing resurfaced and
were progressively expanding at the time of trial, and the
house slid down the lot's rear slope. On October 5, 2012,
Plaintiffs' home was condemned by the City, as it was
determined the house was unsound and no longer suitable for
habitation. The City found that, inter alia, the
foundations did not adequately support the structure.
Relevant Procedural Posture
November 27, 2012, Plaintiffs filed a multi-count petition
against Respondent, Appellant, Podhorn, and M
Engineering in the Circuit Court of St.
Louis County, and venue was later changed to the Circuit
Court of St. Charles County. Respondent filed crossclaims
against Appellant for professional negligence, negligent
misrepresentation, fraudulent misrepresentation,
indemnification, and contribution. Respondent filed additional crossclaims
for indemnity and contribution against Crossroads
Development, Inc. and Schrieter Concrete Company, two other
subcontractors who worked on Lot Eight. The trial court
granted all parties leave to amend their pleadings, to plead
setoffs due to settlements, through the end of trial.
days before the trial was set to begin, Plaintiffs settled
their claims against Respondent and Podhorn for $515, 000. A
settlement and release agreement was executed, which included
a dismissal of any claims Plaintiffs had against Respondent,
Podhorn, Appellant, and M Engineering. Respondent also
stipulated to settlement of its crossclaims against
Crossroads Development, Inc. and Schreiter Concrete Company
for $75, 000 and $5, 000, respectively.
crossclaims against Appellant proceeded to a jury trial,
which was held May 5, 6, 7, and 11, 2015. In addition to the
facts recounted in Section I.A. above, both parties presented
their own theory as to the cause of the damage to
Plaintiffs' home and introduced evidence to support their
theories. At the end of
Respondent's case-in-chief and again at the end of all
the evidence, Appellant and M Engineering filed motions for a
directed verdict. All motions for directed verdict were
denied by the trial court.
the jury instruction conference, Appellant tendered
Instruction Eight, which the trial court accepted.
Instruction Eight provided for the subtraction of any damages
from Respondent's total award if the jury found
Plaintiffs failed to mitigate their damages. Respondent
timely objected to Instruction Eight and requested that the
trial court submit Missouri Approved Instruction
("MAI") 4.01,  but the request was denied. The court
submitted four verdict directors to the jury, Instructions
Nine through Twelve. Instruction Nine explained to the jury
how they were to determine the reasonableness of the
settlement between the Plaintiffs and Respondent.
Instructions Ten through Twelve provided for the specific
claims against Appellant and M Engineering. Each of these
verdict directors required the jury to find,
"[Respondent's] settlement of the claims of
[Plaintiffs] was reasonable." Verdict Form 2, which
required the jury to apportion fault between Appellant and M
Engineering, did not allow the jury to allocate any fault to
Respondent and did not require the jury to ensure the
percentages of fault added up to 100%.
11, 2015, the jury returned a verdict in favor of Respondent
on its professional negligence claim against Appellant,
assessed Respondent's damages at $51, 500, and found
Appellant 100% at fault.
Appellant filed a motion for reduction or setoff against the
jury verdict based on Respondent's settlements with
Crossroads Development, Inc. and Schreiter Concrete Company.
Appellant also moved for a judgment notwithstanding the
verdict, arguing, (1) there was no evidence showing Appellant
was professionally negligent; (2) there was no evidence to
prove Appellant's alleged negligence caused the damage to
Plaintiffs' home; (3) Respondent could not recover in
contribution because it did not prove its own liability to
Plaintiffs; and (4) the requested reduction or setoff of $80,
000 would eliminate any damage award to Respondent as it
exceeded $51, 500, so judgment must be entered in favor of
timely filed responses to Appellant's motions. Respondent
then filed a motion for additur, or in the alternative, a
motion for new trial on the issue of damages, arguing its
damages were fixed by the jury's finding Respondent's
settlement with Plaintiffs was reasonable, and that the
non-MAI Instruction Eight was improper.
4, 2015, the trial court denied all relevant post-trial
motions. On June 5, 2015, the trial court entered its
judgment in accordance with the jury's verdict. Both
raises three points on appeal, and Respondent raises two
points on cross-appeal. In its first and second points on
appeal, Appellant argues the trial court erred in denying its
motions for directed verdict and motion for judgment
notwithstanding the verdict, because Respondent failed to
present a submissible case for contribution. In
Appellant's third point on appeal, it alleges trial court
error regarding its requested setoffs. In Respondent's
first point on cross-appeal, it argues the trial court erred
in denying Respondent's motion for additur, or
alternatively, motion for new trial because Respondent's
damages were fixed by the jury's finding that
Respondent's settlement with Plaintiffs was reasonable.
Finally, in its second point on cross-appeal, Respondent
contends the trial court erred in giving Instruction Eight to
the jury, because the non-MAI instruction on mitigation of
damages was improper and confused the jury.
Points on Appeal Relating to Submissibility of
Respondent's Claim for Contribution
first and second points on appeal, Appellant argues the trial
court erred in denying its motions for directed verdict and
motion for judgment notwithstanding the verdict, because
Respondent failed to present a submissible case for
contribution. In Appellant's first point on appeal,
Appellant asserts Respondent failed to present "any
evidence" to establish its own liability to Plaintiffs.
In its second point on appeal, Appellant contends Respondent
failed to present "any evidence" that
Appellant's negligence caused Plaintiffs' injury.
Standard of Review and General Law Relating to Contribution
review of the denial of a motion for directed verdict and the
denial of a motion for judgment notwithstanding the verdict
is essentially the same. Sanders v. Ahmed, 364
S.W.3d 195, 208 (Mo. banc 2012). Pursuant to our standard of
review, we must determine whether the plaintiff made a
submissible case, which is a question of law we review de
novo. Delacroix v. Doncasters, Inc., 407 S.W.3d 13,
26, 39 (Mo. App. E.D. banc 2013). To make a submissible case,
the plaintiff must support each element of its claims with
substantial evidence. Id. at 26. Substantial
evidence is described as "that which, if true, has
probative force upon the issues, and from which the trier of
fact can reasonably decide a case."
Arkansas-Missouri Forest Products, LLC v. Lerner,
486 S.W.3d 438, 447 (Mo. App. E.D. 2016) (quotations
determining whether the plaintiff made a submissible case, we
view the evidence and all reasonable inferences therefrom in
the light most favorable to the plaintiff, and all contrary
evidence and inferences are disregarded. Delacroix,
407 S.W.3d at 26. "The jury's verdict will be
reversed only if there is a complete absence of probative
facts to support the jury's conclusion."
Id. (quoting Keveney v. Missouri Military
Academy, 304 S.W.3d 98, 104 (Mo. banc 2010)). Thus, if
reasonable minds could differ as to the question before the
jury, an appellate court will not disturb the jury's
verdict. Dubinsky v. U.S. Elevator Corp., 22 S.W.3d
747, 749 (Mo. App. E.D. 2000).
brought the present action seeking contribution from
Appellant, as a joint tortfeasor, for a portion of the
damages Respondent paid to Plaintiffs. "When two or more
persons become liable in tort to the same person for the same
harm, there is a right of contribution among them."
Miles ex rel. Miles v. Rich, 347 S.W.3d 477, 482
(Mo. App. E.D. 2011) (quoting Gramex Corp. v. Green
Supply, Inc., 89 S.W.3d 432, 442 (Mo. banc 2002))
(internal quotations omitted). The purpose of the right to
contribution is to proportionately divide the injured
party's overall damage figure according to the joint
tortfeasors' relative degrees of fault. Union Elec.
Co. v. Metropolitan St. Louis Sewer Dist., 258 S.W.3d
48, 54-55 (Mo. banc 2008). To maintain an action for
contribution, the party seeking contribution as well as the
party against whom contribution is sought must be joint
tortfeasors, both originally liable to the injured party.
Miles, 347 S.W.3d at 482.
Whether Respondent Presented Evidence of its Liability to
Appellant's first point challenging the evidence
presented as to Respondent's liability to Plaintiffs, we
must first address whether Appellant has sufficiently
preserved each of its arguments on appeal. In support of this
point, Appellant argues Respondent cannot seek contribution
from Appellant because Respondent failed to admit its own
liability at trial, and even if Respondent was not required
to admit liability, it failed to present "any
evidence" of its own liability to Plaintiffs. Appellant
also argues, "[t]here is no cause of action in tort for
a builder's alleged negligence in the construction of a
residence, " and Plaintiffs could have only recovered
from Respondent via contract remedies. Thus, according to
Appellant, Respondent is not a "joint tortfeasor, "
and cannot seek contribution from Appellant.
we conclude Appellant preserved its claim that Respondent
failed to present evidence of its own liability to the
Plaintiffs, because it was raised in Appellant's motion
for directed verdict at the close of all the evidence.
See Sanders, 364 S.W.3d at 207 (when a defendant
presents evidence at trial, "[a] motion for directed
verdict at the close of all evidence becomes the meaningful
motion to preserve the issue"). However, our review of
the record reveals Appellant's argument that tort
remedies were unavailable to Plaintiffs against Respondent
was never presented to the trial court, and may not be raised
for the first time on appeal. See Marquis Fin. Servs. of
Indiana Inc. v. Peet, 365 S.W.3d 256, 259-60 (Mo. App.
E.D. 2012) and Gill Const., Inc. v. 18th & Vine
Authority, 157 S.W.3d 699, 722 (Mo. App. W.D. 2004) (an
issue not raised in a motion for directed verdict cannot be
used to seek a judgment notwithstanding the verdict on that
ground, nor will it be a basis for appellate review of the
trial court's denial of a judgment notwithstanding the
verdict on that issue). Therefore, we decline to address said
argument. See id.
to Appellant's assertion that Respondent was required to
admit its liability, Appellant bases its argument on the
following question asked by Respondent's attorney to
potential jurors during voir dire:
What you will hear in this case is that we have settled our
claim, our dispute or issue with the homeowners,
[Plaintiffs]. But that's not an admission of liability.
Does everyone here understand that? Is there anyone who
believes that just because we settled our dispute with the
[Plaintiffs] that we somehow are admitting liability or we
must have been at fault?
contends this question essentially precluded Respondent from
being able to prove its liability to Plaintiffs. However, the
Missouri Supreme Court has declared a settling party who is
seeking contribution is not required to admit fault.
Travelers Property Cas. Co. of America v. Manitowoc Co.,
Inc., 389 S.W.3d 174, 175-76, 179 (Mo. banc 2013).
Additionally, statements made and questions asked by
attorneys during voir dire are not evidence. Andersen v.
Osmon, 217 S.W.3d 375, 381 (Mo. App. W.D. 2007);
Pollard v. Whitener, 965 S.W.2d 281, 298 n.3 (Mo.
App. W.D. 1998) (Stith, J., dissenting).
after reviewing the actual evidence adduced at trial, in the
light most favorable to the jury's verdict and
disregarding all contrary evidence, we find Respondent
satisfied its burden of proving its own liability. See
Miles, 347 S.W.3d at 482; see also Delacroix,
407 S.W.3d at 26. During trial, Respondent elicited testimony
from at least two witnesses regarding the settlement ...