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Fox Creek Construction, Inc. v. Opie's Landscaping, LLC

Court of Appeals of Missouri, Southern District

July 30, 2019

FOX CREEK CONSTRUCTION, INC., Plaintiff-Respondent,
OPIE'S LANDSCAPING, LLC, Defendant-Appellant.


         En Banc



         Opie's Landscaping, LLC ("Opie"), appeals the bench-trial judgment that ordered it to pay $40, 250 to Fox Creek Construction, Inc. ("Contractor"). In three points, Opie claims the trial court erred by applying the wrong measure of damages to Contractor's breach of contract claim. Because Opie has failed to meet its burden of demonstrating reversible error, we affirm; however, we transfer this case to our Supreme Court after opinion pursuant to Rule 83.02.[1]

         Governing Principles of Review

         "In appeals from a court-tried civil case, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." White v. Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We begin with a presumption that the judgment is correct, and the appellant has the burden of proving it erroneous. Flooring Sys, Inc. v. Staat Constr. Co., 100 S.W.3d 835, 837 (Mo. App. E.D. 2003).

         The Evidence[2]

         Contractor was engaged by Mike and Annette Ensley ("Homeowners") to do some major remodeling of their home. Contractor's arrangement with Homeowners was a "cost-plus" contract that required Homeowners to pay Contractor the actual cost of the work plus 15% of that total cost as Contractor's profit. One portion of the remodeling job involved the construction of a waterfall outside of Mrs. Ensley's library window. Contractor sub-contracted with Opie to build the waterfall. Although Opie admitted that it had an oral contract with Contractor, Opie's brief fails to identify the terms of that contract.

         Although Contractor had not previously used Opie to build a water feature, "[Opie had] hired a new guy from Wickman's Garden, Logan, who was specially in - specialized in water features, and [Opie] was going to get into the water features - putting in water features with Logan and that Logan could do the job." Opie gave Contractor an estimate of $35, 000 to build the waterfall. It took Logan approximately one month to build the waterfall, and once it was completed, Contractor paid Opie the full $35, 000 estimated price.

         Shortly thereafter, Homeowners returned from a vacation and began experiencing problems with the waterfall. The first problem was that the waterfall was in the wrong location. To address the problem, Opie added a second, smaller waterfall that could be seen from the library.

         The next problem arose when Homeowners discovered water "flying" down their driveway. That led to a discovery that the waterfall leaked - so much so that the pumps could not pump enough water to keep the waterfall flowing. Two months after the waterfall was completed, the leak was so bad that Homeowners' well pump was running 24 hours per day, resulting in large electric bills for June, July, and August. The rocks in the waterfall were not level and would move around. The liner was also "sticking outside" and "looked shoddy." Opie said[3] it had the wrong pumps, the wrong floats, and the reservoir was too small, but all of those deficiencies would be fixed. Despite those admissions, Opie continued to claim that the water loss was due solely to natural evaporation.

         Frustrated with the lack of progress, Homeowners contacted Cliff Fitzwater ("Mr. Fitzwater"), owner of Fitzwater Design, who had extensive experience with water features. Mr. Fitzwater looked at the waterfall in approximately June 2016. He described the problems with the waterfall as: (1) a lot of liner showing; (2) the water falling over natural rock; (3) a water hose was running continuously; and (4) the reservoir size seemed small. Mr. Fitzwater advised Homeowners to contact Opie to fix the problems. The only way Mr. Fitzwater would have fixed the waterfall would be to rebuild it such that it did not fall over the natural rock, a job that would require removing the existing water feature and building a new one. He estimated the cost of removal and reconstruction to be approximately "35- to 40-thousand."

         In September 2016, after six months of continuing problems with the waterfall, Homeowners told Opie to remove it. Opie did so, and Homeowners never paid Contractor the $35, 000 plus 15% profit that Contractor would have received from Homeowners if the waterfall had functioned correctly.

         Contractor made a demand upon Opie to repay Contractor the $35, 000 it had paid for the waterfall, plus the additional 15% profit. When that demand went unmet, Contractor filed the instant breach-of-contract suit, which prayed for damages in the amount of $40, 250 (the $35, 000 paid to Opie, plus Contractor's 15% lost profit).

         The trial court entered its $40, 250 judgment in favor of Contractor based upon the following undisputed evidence:

• Contractor contracted with Homeowners to install a water feature for $35, 000 plus 15% profit;
• Contractor subcontracted with Opie to install the water feature for a cost of $35, 000.
• Contractor paid $35, 000 to Opie upon the installation of the water feature;
• After six months of Opie's failed attempts to repair the water feature, Homeowners demanded that Opie remove it, which it did;
• Homeowners did not pay Contractor the $35, 000 plus 15% profit because Homeowners were not provided with a ...

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