Gruhala v. Lacy

559 S.W.2d 286, 1977 Mo. App. LEXIS 2381
CourtMissouri Court of Appeals
DecidedNovember 8, 1977
DocketNo. 38068
StatusPublished
Cited by9 cases

This text of 559 S.W.2d 286 (Gruhala v. Lacy) 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
Gruhala v. Lacy, 559 S.W.2d 286, 1977 Mo. App. LEXIS 2381 (Mo. Ct. App. 1977).

Opinion

HERBERT LASKY, Special Judge.

This appeal arises from a suit for breach of contract predicated upon the employer’s refusal to pay her employee real estate commissions claimed due and upon the employer’s alleged interference with her employee’s performance of contractual duties. The jury returned a verdict for plaintiff awarding $6,370.50 in damages and interest. Defendant appeals from this judgment. We affirm.

Plaintiff was employed by defendant, a real estate broker, doing business as Mineral Area Realty. Under the terms of the employment agreement plaintiff, a licensed real estate agent, was to receive 25% of the commission earned by the realty company for the sale of any property upon which she had procured a listing and an additional 25% if she was responsible for the sale. Plaintiff claimed at trial that she was entitled to a listing and a sales commission on two parcels of property which shall be referred to as the Key and Morgan properties. Plaintiff further claimed that defendant usurped her opportunity to negotiate with a prospect, whom she had developed, for the sale of a third parcel of land which shall be referred to as the Smith property. The jury found for plaintiff on all three counts.

With respect to the Key and Morgan transactions defendant’s allegations of error on appeal concern only the wording of the verdict directing instructions and not the factual basis for the jury’s finding. Further recitation of the specific facts surrounding these transactions is unnecessary.

Defendant in the points relied on section of her brief has raised numerous allegations of error regarding the verdict directing instructions. The majority of these points, however, are wholly inadequate as they are not in compliance with Rule 84.04(d) V.A.M.R. Most are no more than abstract statements of law which fail to state concisely wherein and why the instructions are erroneous. As such they preserve nothing for appellate review. Lee v. Rolla Speedway, Inc., 539 S.W.2d 627 (Mo.App.1976); Barber v. M. F. A. Milling Co., 536 S.W.2d 208 (Mo.App.1976); Speicher v. Dunn, 530 S.W.2d 45 (Mo.App.1975). This court has no duty to seine through either the argument portion of appellant’s brief or the transcript to ascertain the “wherein and why” of the claimed error. Bell v. Bell, 538 S.W.2d 733 (Mo.App.1976); Cole v. Cole, 516 S.W.2d 518 (Mo.App.1974). “While other violations of briefing rules sometimes can be easily overlooked, defective points relied on cannot. More precision is required in the area because reviewing courts want to be sure they are deciding the case on the issue the appellant is trying to raise.” Wei-er & Fairbanks, Why Write a Defective Brief? Give Your Client a Chance on Appeal, 33 J.Mo.Bar 79, 88 (1977). When counsel fails to point out clearly and specifically the focus of his complaint, he abrogates his duty as advocate and thrusts that responsibility upon the court. It is not fair to the opposing party for us to accept such responsibility. The following statement of Judge Lamm continues to be apposite:

“The rules of appellate practice in hand are simple and plain. They fill no office [288]*288of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. Hence, apparently, they bespeak the dignity arising from obedience. If they are not be obeyed, they should be done away with once for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it — the very ones it should not injure.”

Sullivan v. Holbrook, 211 Mo. 99, 109 S.W. 668, 670 (1908).

Though we decline to rule on the merits of the majority of defendant’s claims of error we will nevertheless, ex gratia, review the two points which arguably meet the requirements of Rule 84.04(d). The verdict directing instruction for the Key transaction is as follows:

“Your verdict must be for Plaintiff, on Count I, if you believe:
First: Defendant employed Plaintiff as a real estate salesperson and agreed to pay Plaintiff 25% of any commission received by Defendant on sales of real estate which had been listed for sale as a direct result of Plaintiff’s efforts and 25% of any commission received by Defendant for sales of property sold as a direct result of Plaintiff’s efforts, and
Second: The Key farm was listed with Defendant’s agency as a direct result of Plaintiff’s efforts or the Key Farm was sold by Defendant’s agency as a direct result of Plaintiff’s efforts, and
Third: Defendant received a commission as a result of the sale of the Key farm, and
Fourth: Defendant has not paid plaintiff the amount due her as a result of the sale of the Key farm.”

The instruction given for the Morgan transaction is in all material respects the same. Defendant argues that this instruction “failed to properly submit the issue of the plaintiff’s damage.” The gravamen of defendant’s complaint seems to be that the instruction should have included a fifth paragraph requiring the jury to find that “Plaintiff has been thereby damaged.”

It is true that when there is a disputed issue as to whether plaintiff has suffered any actual damages as a result of defendant’s breach, such a paragraph is required. Thus, for instance, when computing damages for breach of a construction contract, which are measured by the difference between the contract price and the cost to complete construction, a specific finding of damage to plaintiff is necessary because the cost to complete could exceed the contract price. See Beuc v. Morrissey, 463 S.W.2d 851 (Mo. banc 1971); Veterans Linoleum and Rug, Inc. v. Tureen, 432 S.W.2d 372 (Mo.App.1968). Or where, as in Forsythe v. Starnes, 554 S.W.2d 100 (Mo.App.1977), there is a counterclaim by defendant and the jury is requested to return only one verdict, the jury must be required to find that plaintiff was damaged by the breach. This is necessary, because if the counterclaim exceeds the plaintiff’s claim there will be no net damage to plaintiff. The court in Forsythe v. Starnes, supra, at 107, went on to say, however, that “the jury, in the event of a retrial, should return more than one verdict. If this is done, it will not be necessary to include a finding of damage to plaintiff in plaintiff’s verdict director because the damage due to defendant’s refusal to pay is obvious and need not be submitted . ”

The damages here are equally obvious.

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Bluebook (online)
559 S.W.2d 286, 1977 Mo. App. LEXIS 2381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gruhala-v-lacy-moctapp-1977.