Court of Appeals of Missouri, Southern District, En Banc
FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY Honorable Jennifer
Landscaping, LLC ("Opie"), appeals the bench-trial
judgment that ordered it to pay $40, 250 to Fox Creek
Construction, Inc. ("Contractor"). In two 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.
Principles of Review
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).
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 its specific terms.
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.
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.
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
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.
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."
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.
made a demand upon Opie to repay Contractor the $35, 000 it
had paid for the waterfall, plus an additional 15% that
Contractor would have received from Homeowners if the
waterfall had functioned properly. When that demand went
unmet, Contractor filed the instant breach-of-contract suit,
which prayed for ...