APAC-Missouri, Inc. v. Boyer

420 S.W.3d 651, 2013 WL 5819548, 2013 Mo. App. LEXIS 1295
CourtMissouri Court of Appeals
DecidedOctober 30, 2013
DocketNos. SD 32290, SD 32321, SD 32322
StatusPublished
Cited by2 cases

This text of 420 S.W.3d 651 (APAC-Missouri, Inc. v. Boyer) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
APAC-Missouri, Inc. v. Boyer, 420 S.W.3d 651, 2013 WL 5819548, 2013 Mo. App. LEXIS 1295 (Mo. Ct. App. 2013).

Opinion

DON E. BURRELL, J.

These consolidated appeals arise from a subcontractor’s mechanic’s lien obtained by APAC-Missouri, Inc. (“APAC”), the provider of asphalt used by Mainstreet Road & Asphalt, Inc. (“Mainstreet”) to build a driveway to a residential lake property. The lot owners, the Boyers,1 and Mark Haas, the sole owner of Mainstreet, appeal judgments entered by the trial court in favor of APAC and the Boyers after jury and bench trials. Finding no merit in any of their contentions, we affirm the judgments of the trial court.

Background

In September 2006, Bruce contracted with Mainstreet to build the asphalt driveway for $4,303. Bruce paid Mainstreet the contracted price when the driveway was completed. The driveway ran from a subdivision road across a small part of Lot 11, across all of Lot 10, and terminated at a concrete pad on Lot 9. All of the lots across which the driveway ran were owned by one or more of the Boyers. APAC’s Exhibit 6A, an aerial depiction of the area, was admitted into evidence at trial, but it was not deposited with this court.

Mainstreet obtained the asphalt it used to build the driveway from APAC on credit. Mainstreet did not pay APAC. Mr. Haas testified that “very close” to $2,000-$2,500 “worth of asphalt” Mainstreet obtained from APAC was used on the project, and APAC charged Mainstreet a “fair and reasonable value” for the asphalt.2

Although Bruce knew what a lien waiver was, he did not obtain one from Mainstreet as he thought he “was just dealing with one contractor at the time,” and he believed that his “ ‘paid in full’ bill” would “provide some protection.”

APAC eventually filed a lien notice and statement that incorrectly identified both the lots involved and the amount owed. It then filed suit against the Boyers and Mainstreet, using the same incorrect information.3 The Boyers filed an answer and also filed a counterclaim against APAC for slander of title. APAC, realizing its error at that point, offered to dismiss its claim against the Boyers if they would dismiss their counterclaim. The Boyers rejected the offer because Bruce wanted an apology from APAC and money damages of $27,500. Bruce came up with that damages figure using what he called “APAC math”; he multiplied his actual cost of defending APAC’s suit by 5.5 — the ratio by which he believed APAC’s initial damages claim had exceeded its actual damages.

When the Boyers rejected APAC’s settlement offer, APAC dismissed its lien as to the lots upon which no asphalt had been laid, and it amended its petition by inter-lineation to lower its damages request to $2,387.17. These corrective measures resulted in APAC’s lien notice and statement still being defective, but this time it was to APAC’s prejudice as Lot 9 was not included.

[655]*655In addition to its counterclaim against APAC, the Boyers filed a cross-claim for indemnification against both Mainstreet and Mr. Haas. The claim against Mr. Haas was based on a request to “pierce [Main-street’s] corporate veil.”

The parties agreed to try some of their claims to a jury and others to the court. The jury awarded APAC $1,800 against the Boyers for “the reasonable value of the asphalt placed upon the property[.]” It also found in favor of APAC on the Boy-ers’ slander of title claim, and it found in favor of the Boyers on their claim against Mainstreet for statutory indemnification.

After the bench trial that followed, the trial court granted the Boyers a judgment against both Mainstreet and Mr. Haas for $1,800 on the indemnification claim, plus $5,271 in attorney fees. Additional facts will be discussed in the context of our analysis of the parties’ claims on appeal.

The Boyers’ Appeal (SD32290)

Point A — The effect of a separate APAC lawsuit

In their first point, the Boyers contend the trial court erred in denying their motion for judgment notwithstanding the judgment (“JNOV motion”) because “APAC impermissibly split its cause of action” when it “obtained summary judgment against Mainstreet for the same material in another case, to which the Boyers were not a party ... and APAC failed to obtain any judgment against Mainstreet in th[e instant] case.”4

Standard of Review

As stated in Clevenger v. Oliver Ins. Agency, Inc., 237 S.W.3d 588, 590 (Mo. banc 2007):

The standard of review of denial of a JNOV is essentially the same as for review of denial of a motion for directed verdict. A case may not be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. In determining whether the evidence was sufficient to support the jury’s verdict, the evidence is viewed in the light most favorable to the result reached by the jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences that conflict with that verdict. This Court will reverse the jury’s verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury’s conclusion. Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 456-57 (Mo. banc 2006). Accordingly, a motion for JNOV is properly granted when the motion identifies at least one element of the plaintiffs case that is not supported by the evidence.

“Whether the plaintiff made a submissi-ble case is a question of law subject to de novo review.” D.R. Sherry Constr., Ltd. v. [656]*656American Family Mut. Ins. Co., 316 S.W.3d 899, 904 (Mo. banc 2010).

Additional facts relevant to Point A

At the close of APAC’s evidence in the jury trial, the Boyers orally moved for a directed verdict on Count I “on the basis that [APAC] cannot say how much asphalt is on Lot 9 and that piece of [Lot] 10.” The trial court asked if the Boyers had any written motion to file in addition to the oral motion, and counsel for the Boyers replied in the negative, stating, “Those are just oral, Your Honor.” The Boyers’ oral motion for directed verdict did not assert that the motion should be granted because of APAC’s other lawsuit against Main-street.

Mainstreet also moved for a directed verdict at the close of APAC’s case. It did base its motion on APAC having obtained a judgment against Mainstreet in another case. Counsel for APAC insisted that the other judgment was not final, and counsel for Mainstreet agreed that the other case was still pending. The Boyers did not join in Mainstreet’s motion for directed verdict. The trial court denied each party’s motion for directed verdict. At the close of all evidence, counsel for Mainstreet and Mr. Haas again moved for directed verdict based upon APAC’s other lawsuit. Counsel for APAC and counsel for Mainstreet again argued the motion, and counsel for the Boyers again did not attempt to join in Mainstreet’s motion. The trial court denied Mainstreet’s motion for directed verdict at the close of all evidence.5

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Bluebook (online)
420 S.W.3d 651, 2013 WL 5819548, 2013 Mo. App. LEXIS 1295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apac-missouri-inc-v-boyer-moctapp-2013.