In the Missouri Court of Appeals Western District
GREG HALL, WD76147 Appellant, OPINION FILED: v. APRIL 1, 2014 LOWELL FOX AND GINA FOX, ET AL., Respondents.
Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Keith Bradley Marquart, Judge
Before Division Three: Anthony Rex Gabbert, P.J., Victor C. Howard, J., Zel Fischer, Sp.J.
Greg Hall appeals the circuit court‟s judgment that he breached his contract on the
construction of an addition for the Abbey Woods Nursing Home1 (“Abbey Woods”). Hall raises
a single point on appeal. He argues that the circuit court erred in finding that he breached his
construction contract. He contends that there was no mutuality of assent to the terms of the
contract because the evidence demonstrated a course of conduct where Hall billed on a time and
1 Abbey Woods is owned and operated by Heritage Healthcare Holdings, Inc. Diamond Health Care Corporation owns the real estate and Heritage pays Diamond rent. Lowell Fox is the sole shareholder and director of both Heritage and Diamond. Lowell Fox passed away before the end of the trial. We will refer to Abbey Woods, Heritage, and Diamond as simply Abbey Woods hereinafter in the opinion. materials basis and Gina Fox2 thought there was a fixed price and time of performance contract.
We affirm.
Factual Background
Abbey Woods was looking to add an Alzheimer‟s wing onto its facility. Fox contacted
Hall and received a bid for the addition. This bid had a quoted price of $50,000. This bid
included a statement that the quoted price included all material, labor, permits and all related
items shown in the architectural plans. Fox also received six other bids. After reviewing the
bids, Fox decided to hire Hall.
Throughout the construction process, Hall would send bills to Fox for payment of the
labor and material costs, and Fox would pay them. Towards the end of the project, Hall
presented Fox with a bill for roughly $15,000. After reviewing payments already made, Fox
realized that she had already paid Hall approximately $63,000. As a result, Fox refused to pay
Hall for the bill. Hall failed to finish to the job and Fox hired someone else to finish it.
Hall sued Abbey Woods and both Lowell and Gina Fox for breach of contract, petition of
account, and quantum meruit. Abbey Woods and the Foxes filed a counterclaim for breach of
contract. The court found for Abbey Woods and the Foxes, awarding $9,579 in damages plus
$12,000 for attorney‟s fees. Hall appeals.
Standard of Review
In court tried cases, this Court will affirm the circuit court‟s judgment unless it is against
the weight of the evidence, there is no substantial evidence to support it, or it erroneously
2 Gina Fox is the wife of Lowell Fox. Gina Fox runs the day-to-day operations of Abbey Woods. It was Gina Fox who worked with Hall on the project. As a result, we will refer to Gina Fox by her last name only throughout the opinion unless a distinction between Lowell and Gina Fox needs to be made.
2 declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). It is the
appellant‟s burden to demonstrate that the circuit court‟s judgment is erroneous. Kells v. Mo.
Mountain Props., Inc., 247 S.W.3d 79, 81 (Mo. App. 2008). “We accept as true the evidence and
reasonable inferences therefrom in favor of the prevailing party and disregard the contrary
evidence.” Harrison v. DeHeus, 230 S.W.3d 68, 74 (Mo. App. 2007).
Mutuality of Assent
In his sole point on appeal, Hall argues that the trial court erred in finding that he
breached his contract for the addition to Abbey Woods. He contends that there was no mutuality
of assent between the two parties because the evidence shows that Hall billed and was paid on a
time and material basis, while Fox thought the contract was a fixed price and fixed performance
contract. We find no error.
In determining whether there is mutual assent to the terms, we look to the parties‟ actions
and words. Tom’s Agspray, LLC v. Cole, 308 S.W.3d 255, 259 (Mo. App. 2010). “[N]egotiations
or preliminary steps towards a contract do not themselves constitute a contract.” L.B. v. State
Comm. of Psychologists, 912 S.W.2d 611, 617 (Mo. App. 1995). “The existence of a contract
necessarily implies that there has been a „meeting of the minds‟ between the parties which the
court can determine by looking to the intentions of the parties as expressed or manifested in their
words or acts.” Id. “Whether there was „a meeting of the minds‟ is a question of fact for the fact
finder—in this case, the trial court.” Tom’s Agspray, LLC, 308 S.W.3d at 259.
After reviewing the record, there is substantial evidence that the parties‟ words and
actions manifest that there was mutual assent to the contract. Here, Hall testified that he
prepared a bid with Fox, who typed it on Hall‟s letterhead. The bid laid out the estimated costs
of the different components of the project (e.g. electrical, floor, painting) and was based on the
3 architectural plans of the addition. The quoted price for the project was $50,000. Following the
quoted price, the bid states:
This quoted price includes all material, labor, permits and all related items within the specifications as provided by Creal Clark & Seifert for the Alzheimer‟s addition only, and not to exceed the total price quoted. However if the customer requests us to perform additional work beyond the specifications of Creal Clark & Seifert the customer agrees to pay subsequent invoices and pay them within 30 days.
At the bottom of bid, Hall signed it. After receiving six other bids, Fox accepted Hall‟s bid and
Hall began working on the project.
During the project, there were changes made to the plan. The contract stated that if the
customer wanted additional work done that was not in the architectural plan than the customer
would agree to pay the subsequent invoices within thirty days. Fox did request changes to the
plan, including upgraded windows that cost more money. However, the record reflects that these
additional changes were paid for by Fox and did not result in any additional expenses to Hall.
While the contract is silent about changes to the plan by Hall, Hall did present Fox with several
suggested changes that would save money, including keeping a part of the outside wall, not
completely removing an electrical panel, using a different sink, and reusing an old countertop.
Fox approved these recommended changes.
While the contract addressed potential changes, it failed to address how or when Hall was
to be paid. Hall argues that there was no mutuality of assent to the terms of the contract because
the evidence showed that the course of conduct suggested a time and materials based contract
and not a fixed price and fixed performance contract like Fox thought. However, when we look
at the parties‟ actions and words to see if there is mutual assent, “[t]he standard is what a
reasonably prudent person would be led to believe from the actions and words of the parties…”
4 Silver Dollar City, Inc. v.
Free access — add to your briefcase to read the full text and ask questions with AI
In the Missouri Court of Appeals Western District
GREG HALL, WD76147 Appellant, OPINION FILED: v. APRIL 1, 2014 LOWELL FOX AND GINA FOX, ET AL., Respondents.
Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Keith Bradley Marquart, Judge
Before Division Three: Anthony Rex Gabbert, P.J., Victor C. Howard, J., Zel Fischer, Sp.J.
Greg Hall appeals the circuit court‟s judgment that he breached his contract on the
construction of an addition for the Abbey Woods Nursing Home1 (“Abbey Woods”). Hall raises
a single point on appeal. He argues that the circuit court erred in finding that he breached his
construction contract. He contends that there was no mutuality of assent to the terms of the
contract because the evidence demonstrated a course of conduct where Hall billed on a time and
1 Abbey Woods is owned and operated by Heritage Healthcare Holdings, Inc. Diamond Health Care Corporation owns the real estate and Heritage pays Diamond rent. Lowell Fox is the sole shareholder and director of both Heritage and Diamond. Lowell Fox passed away before the end of the trial. We will refer to Abbey Woods, Heritage, and Diamond as simply Abbey Woods hereinafter in the opinion. materials basis and Gina Fox2 thought there was a fixed price and time of performance contract.
We affirm.
Factual Background
Abbey Woods was looking to add an Alzheimer‟s wing onto its facility. Fox contacted
Hall and received a bid for the addition. This bid had a quoted price of $50,000. This bid
included a statement that the quoted price included all material, labor, permits and all related
items shown in the architectural plans. Fox also received six other bids. After reviewing the
bids, Fox decided to hire Hall.
Throughout the construction process, Hall would send bills to Fox for payment of the
labor and material costs, and Fox would pay them. Towards the end of the project, Hall
presented Fox with a bill for roughly $15,000. After reviewing payments already made, Fox
realized that she had already paid Hall approximately $63,000. As a result, Fox refused to pay
Hall for the bill. Hall failed to finish to the job and Fox hired someone else to finish it.
Hall sued Abbey Woods and both Lowell and Gina Fox for breach of contract, petition of
account, and quantum meruit. Abbey Woods and the Foxes filed a counterclaim for breach of
contract. The court found for Abbey Woods and the Foxes, awarding $9,579 in damages plus
$12,000 for attorney‟s fees. Hall appeals.
Standard of Review
In court tried cases, this Court will affirm the circuit court‟s judgment unless it is against
the weight of the evidence, there is no substantial evidence to support it, or it erroneously
2 Gina Fox is the wife of Lowell Fox. Gina Fox runs the day-to-day operations of Abbey Woods. It was Gina Fox who worked with Hall on the project. As a result, we will refer to Gina Fox by her last name only throughout the opinion unless a distinction between Lowell and Gina Fox needs to be made.
2 declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). It is the
appellant‟s burden to demonstrate that the circuit court‟s judgment is erroneous. Kells v. Mo.
Mountain Props., Inc., 247 S.W.3d 79, 81 (Mo. App. 2008). “We accept as true the evidence and
reasonable inferences therefrom in favor of the prevailing party and disregard the contrary
evidence.” Harrison v. DeHeus, 230 S.W.3d 68, 74 (Mo. App. 2007).
Mutuality of Assent
In his sole point on appeal, Hall argues that the trial court erred in finding that he
breached his contract for the addition to Abbey Woods. He contends that there was no mutuality
of assent between the two parties because the evidence shows that Hall billed and was paid on a
time and material basis, while Fox thought the contract was a fixed price and fixed performance
contract. We find no error.
In determining whether there is mutual assent to the terms, we look to the parties‟ actions
and words. Tom’s Agspray, LLC v. Cole, 308 S.W.3d 255, 259 (Mo. App. 2010). “[N]egotiations
or preliminary steps towards a contract do not themselves constitute a contract.” L.B. v. State
Comm. of Psychologists, 912 S.W.2d 611, 617 (Mo. App. 1995). “The existence of a contract
necessarily implies that there has been a „meeting of the minds‟ between the parties which the
court can determine by looking to the intentions of the parties as expressed or manifested in their
words or acts.” Id. “Whether there was „a meeting of the minds‟ is a question of fact for the fact
finder—in this case, the trial court.” Tom’s Agspray, LLC, 308 S.W.3d at 259.
After reviewing the record, there is substantial evidence that the parties‟ words and
actions manifest that there was mutual assent to the contract. Here, Hall testified that he
prepared a bid with Fox, who typed it on Hall‟s letterhead. The bid laid out the estimated costs
of the different components of the project (e.g. electrical, floor, painting) and was based on the
3 architectural plans of the addition. The quoted price for the project was $50,000. Following the
quoted price, the bid states:
This quoted price includes all material, labor, permits and all related items within the specifications as provided by Creal Clark & Seifert for the Alzheimer‟s addition only, and not to exceed the total price quoted. However if the customer requests us to perform additional work beyond the specifications of Creal Clark & Seifert the customer agrees to pay subsequent invoices and pay them within 30 days.
At the bottom of bid, Hall signed it. After receiving six other bids, Fox accepted Hall‟s bid and
Hall began working on the project.
During the project, there were changes made to the plan. The contract stated that if the
customer wanted additional work done that was not in the architectural plan than the customer
would agree to pay the subsequent invoices within thirty days. Fox did request changes to the
plan, including upgraded windows that cost more money. However, the record reflects that these
additional changes were paid for by Fox and did not result in any additional expenses to Hall.
While the contract is silent about changes to the plan by Hall, Hall did present Fox with several
suggested changes that would save money, including keeping a part of the outside wall, not
completely removing an electrical panel, using a different sink, and reusing an old countertop.
Fox approved these recommended changes.
While the contract addressed potential changes, it failed to address how or when Hall was
to be paid. Hall argues that there was no mutuality of assent to the terms of the contract because
the evidence showed that the course of conduct suggested a time and materials based contract
and not a fixed price and fixed performance contract like Fox thought. However, when we look
at the parties‟ actions and words to see if there is mutual assent, “[t]he standard is what a
reasonably prudent person would be led to believe from the actions and words of the parties…”
4 Silver Dollar City, Inc. v. Kitsmiller Constr. Co., 931 S.W.2d 909, 914 (Mo. App. 1996). Under
the facts of this case, a reasonably prudent person would have believed just as Fox did. Here,
Fox was presented with seven bids. She selected Hall‟s bid with the quoted price of $50,000.
Hall billed Fox based upon labor and material costs. Fox in turn paid the bills, believing that the
cost would not exceed the contracted price of $50,000 unless she requested changes different
from the plan. The record reflects that any changes to the plan requested by Fox did not result in
any additional expense to Hall and were paid by Fox.
Moreover, even though the contract was silent about how or when Hall was to be billed,
such silence does not mean that the contract lacked mutual assent because the conduct of the
parties demonstrated how payment was to be made. But see Building Erection Services Co. v.
Plastic Sales & Mfg. Co., Inc., 163 S.W.3d 472, 478-79 (Mo. App. 2005) (finding that there was
no mutual assent regarding a skylight project because “neither the written contract nor the
conduct of the parties” demonstrated that an agreement had been reached) (emphasis added).
Here, Hall periodically presented bills to Fox that showed how much the labor and materials cost
for a given period. Fox paid the bills that were given to her until Hall presented her with a bill
for $15,000 near the end of the project. Fox failed to pay this bill because she realized that she
had already paid Hall $63,000. Thus, the conduct of Hall and Fox showed that there was mutual
assent as to how payment was to be made.
We conclude, therefore, that the circuit court did not err in finding that Hall breached his
contract because there is substantial evidence on the record that there was mutual assent to the
contract. We affirm the circuit court‟s judgment.
5 Anthony Rex Gabbert, Judge
All concur.