Dover Elevator Co. v. Rafael

939 S.W.2d 474, 1996 Mo. App. LEXIS 2091, 1996 WL 741854
CourtMissouri Court of Appeals
DecidedDecember 24, 1996
DocketNo. 69316
StatusPublished
Cited by1 cases

This text of 939 S.W.2d 474 (Dover Elevator Co. v. Rafael) 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
Dover Elevator Co. v. Rafael, 939 S.W.2d 474, 1996 Mo. App. LEXIS 2091, 1996 WL 741854 (Mo. Ct. App. 1996).

Opinion

CRANE, Presiding Judge.

This appeal involves an attempt by an office building owner to terminate an elevator maintenance contract and the office building owner’s claim that maintenance was not “regularly and systematically” performed. It raises issues of the ambiguity of the termination provisions of the contract and the admission of opinion testimony by witnesses who were not disclosed under Rule 56.01(b)(4).

Defendant Robert Rafael is the owner of an office building located at 901 North Spoe-de Road, Creve Coeur, Missouri. On April 28, 1988 Rafael entered into a Master Maintenance Agreement (“Agreement”) for a five-year term with Dover Elevator Company (“Dover”) in which Dover agreed to “regularly and systematically” service a passenger elevator in Rafael’s office building for a monthly fee of $149.29. The termination provision of the Agreement provides:

This Agreement is effective as of May 1, 1988 (the anniversary date) and will continue thereafter until terminated as provided herein. Either party may terminate this agreement at the end of the first five years or at the end of any subsequent five-year period by giving the other party at least (90) days prior written notice.

Rafael gave notice of termination of the Agreement by letter dated June 21,1998. In a letter dated June 24, 1993, a Dover service salesman, Thomas Jackson, stated that Rafael’s notice of termination was unacceptable. He advised Rafael that the Agreement “required 90 days prior written notice for termination or change. The date of your letter is almost two months late with proper notification.” The letter further advised that Dover would continue to service the elevators. Rafael continued to make monthly payments to Dover through September, 1993. After September 21, 1993 Rafael denied Dover access to his building and stopped making payments.

In August, 1994 Dover filed an action against Rafael seeking damages for breach of contract and to recover money on account. Rafael filed a counterclaim to recover damages for Dover’s breach of its contractual obligations to “regularly and systematically” “examine, adjust, lubricate” and provide various elevator maintenance services as stated in the contract. The jury returned a verdict in Dover’s favor on its breach of contract claim and awarded damages in the amount of $8,195.00. The trial court found for Dover on its action on account and awarded Dover $568.02 for unpaid service charges and $11,-432.00 in attorney’s fees and collection costs.

In his first point on appeal, Rafael asserts that the trial court erred in ruling that the termination provision of the agreement was unambiguous as a matter of law and in excluding extrinsic evidence as to the meaning of the termination provision.

Prior to trial Dover filed a motion in limine to exclude any evidence of the meaning of the termination provision of the Agreement on the grounds that the termination provision was unambiguous. The court found that the termination provision was not ambiguous and sustained the motion.

Rafael argues that this ruling was erroneous because the termination provision is ambiguous on its face. He contends that the provision was susceptible to an additional meaning that either party could terminate by giving ninety days notice on or after May 1, 1993.

Whether the language of the contract is ambiguous is a question of law. Lake Cable, Inc. v. Trittler, 914 S.W.2d 431, 435 (Mo.App.1996); CIT Group/Sales Fin., Inc. v. Lark, 906 S.W.2d 865, 868 (Mo.App.1995). A contract is ambiguous if the terms are susceptible to more than one meaning so that reasonable persons may fairly and honestly differ in the construction of the terms. CIT Group/Sales Fin. Inc., 906 S.W.2d at 868. A contract is not ambiguous merely because the parties disagree over its meaning. Id.

In determining whether a contract term is ambiguous, the court considers the whole instrument and gives the words in the contract their natural and ordinary meaning. Lake Cable, Inc., 914 S.W.2d at 435-36; Jake C. Byers, Inc. v. J.B.C. Investments, 834 [476]*476S.W.2d 806, 816 (Mo.App.1992). The court does not use “forced or strained meanings and cannot use extrinsic or parol evidence to create ambiguity.” Lake Cable, Inc., 914 S.W.2d at 436. When a contract uses plain and unequivocal language, it must be enforced as written. Id.

The Agreement clearly provides that a party may terminate the agreement at the end of the first five-year period or at the end of any subsequent five-year period by giving at least ninety days prior written notice. “ ‘A provision that a contract may be terminated at one or more specified dates by giving 30 days notice requires that the notice be given 30 days before one of those dates; and time is of the essence.’” Missouri Goodwill Indus. v. Johannsmeyer, 901 S.W.2d 154, 156 (Mo.App.1995) (quoting 6 CORBIN, CORBIN On CONTRACTS § 1266, at 65-66 (1962)); see also, Lowell Staats Mining Company, Inc. v. Pioneer Uravan, Inc., 596 F.Supp. 1428, 1430-33 (D.Colo.1984) (finding a similar termination clause unambiguous). Under the Agreement the first five-year period ended on May 1, 1993. The word “pri- or” refers back to the “end” of a five-year term. To effectively terminate on May 1, 1993, Rafael would have to have given notice of termination ninety days prior to May 1, 1993, that is, by January 31, 1993. This provision clearly contemplated automatic renewal for successive five-year terms unless notice was given at least ninety days before the end of a five-year term.

Rafael urges a forced and strained interpretation. Under Rafael’s interpretation, the provision allowing termination at the end of each five-year period would be meaningless because a party could terminate at any time after the initial five-year period by giving a ninety day notice. The word “prior” would not be referable to the end of a term but to any date chosen by a party to terminate. The plain language of the termination provision is not susceptible to such an interpretation. Point one is denied.

In his second point Rafael alleges that the trial court erred in permitting two of Dover’s witnesses, Thomas Jackson and Richard Henley, to testify as to the meaning of the term “regularly and systematically” in the elevator maintenance industry because neither witness had been identified as an expert pursuant to Rule 56.01(b)(4) and their testimony was not incidental to their fact testimony.

In Rafael’s counterclaim he alleged that Dover breached the agreement by failing to “regularly and systematically” provide services in that there were months when Dover did not provide service. Rafael also alleged Dover’s failure to perform as a defense to Dover’s breach of contract.

At trial Jackson and Henley were both called as witnesses in plaintiffs case. Henley, a service salesman for Dover Elevator, was responsible for the maintenance agreement with Rafael.

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939 S.W.2d 474, 1996 Mo. App. LEXIS 2091, 1996 WL 741854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dover-elevator-co-v-rafael-moctapp-1996.