KDW Staffing, LLC v. Grove Construction, LLC ( 2019 )

In the
Missouri Court of Appeals
Western District
KDW STAFFING, LLC, )
)
Appellant, ) WD82496
)
v. ) OPINION FILED: October 8, 2019
)
GROVE CONSTRUCTION, LLC, )
)
Respondent. )
Appeal from the Circuit Court of Boone County, Missouri
The Honorable Jeffrey Harris, Judge
Before Division One: Cynthia L. Martin, Presiding Judge, Alok Ahuja, Judge and
Anthony Rex Gabbert, Judge
KDW Staffing, LLC ("KDW") appeals the trial court's entry of judgment
("Judgment") that found in favor of Grove Construction ("Grove") on a claim for action on
account. KDW asserts the trial court erred in finding that KDW failed to meet its
evidentiary burden that invoices and time cards were timely submitted to Grove for
payment. KDW further asserts that the trial court erred in finding that Grove had a
meritorious laches defense; that KDW materially breached terms of a contract between
KDW and Grove; and that KDW failed to prove that it was entitled to interest payments on
overdue accounts. Because KDW has failed to challenge all bases supporting the trial
court's Judgment, we affirm.
Factual and Procedural Background1
KDW is a staffing company in Columbia that contracts with construction companies
to provide general laborers and other skilled workers for commercial construction projects.
On May 27, 2014, KDW entered into a one-year General Staffing Agreement
("Agreement") to provide general laborers ("Assigned Employees") to Grove on an hourly
basis. The Assigned Employees performed work on a commercial construction project that
involved improvements to an apartment complex. Grove's underlying contract with the
owners of the apartment complex was a "time and materials" contract. The time and
materials contract required Grove to provide on a monthly basis to the apartment owner
the actual cost of labor and materials as the costs were incurred, including the cost of
Assigned Employees.
The Agreement between KDW and Grove required KDW to send invoices "via the
United States Postal Service or a nationally recognized courier" to Grove for services
provided by the Assigned Employees on a weekly basis. The Agreement also required that
KDW invoices "be supported by the pertinent time sheets or other agreed system for
documenting time worked by Assigned Employees."
KDW billed Grove weekly invoices for Assigned Employees labor costs through
September 2014. Erin Lent ("Lent") was an accountant with KDW who oversaw invoicing
1
"We view the evidence and its reasonable inferences in the light most favorable to the trial court's
judgment and we disregard contrary evidence and inferences." Federal Nat. Mortg. Ass'n v. Bostwick, 414 S.W.3d
521, 524 (Mo. App. W.D. 2013).
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for the Grove account. However, on September 19, 2014, Lent left KDW's employment.
Beginning September 19, 2014, KDW repeatedly failed to provide weekly invoices and
supporting time sheets to Grove. Grove paid all invoices received through December 17,
2014 that were supported by time sheets, and even some invoices that were not supported
by time sheets. Additional invoices were provided to Grove after December 17, 2014, but
were not paid by Grove because upon Grove's request, KDW failed to support the invoices
with time cards. The Agreement expired on May 27, 2015. By July 15, 2015, Grove had
completed the construction project at the apartment complex and closed out all accounts
on the underlying time and materials contract, having provided the apartment complex
owners with a final statement. On July 15, 2015, KDW provided Grove time sheets
supporting $50,282.14 for allegedly unpaid services provided by Assigned Employees.
In April 2016, KDW filed an action on account to recover payment on invoices
totaling $65,818.58. A trial to the court was held. KDW's sole witness testified that Grove
paid in excess of $80,000 on invoiced services. Evidence adduced by Grove corroborated
KDW's sole witness's claim, demonstrating that $88,808.75 had been paid to KDW by
Grove. KDW failed to adduce evidence demonstrating the entire value of services
provided by KDW to Grove.
The trial court awarded Judgment in favor of Grove. Because KDW failed to
demonstrate the total value of services provided on account, the Judgment found that the
total amount invoiced on account was $65,818.58. The Judgment found that Grove had
met its burden to prove the affirmative defense of payment because "the total of the proven
payments on the account exceeds the amount that KDW undertook to prove was owed on
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the account." The Judgment also found that Grove met its burden to prove the affirmative
defense of laches on any amount in excess of the $50,282.14, which was invoiced with
supporting time sheets on July 15, 2015. The Judgment found that KDW had materially
breached the terms of the Agreement by not sending weekly invoices supported by time
sheets "via the United States Postal Service or a nationally recognized courier" as required
by the Agreement. The Judgment found that KDW failed to prove the essential elements
to support an action on account because KDW failed to prove the reasonableness and
correctness of each invoice. Finally, the Judgment rejected KDW's claims for interest and
attorney's fees.
KDW timely appeals.2
Standard of Review
"When reviewing a trial court's judgment in a court-tried case, the 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." Agriservices of Brunswick, LLC
v. Jacoby, 548 S.W.3d 430, 434-35 (Mo. App. W.D. 2018) (citing Holm v. Wells Fargo
Home Mortgage, 514 S.W.3d 590, 596 (Mo. banc 2017)). Under this standard, we "view
the evidence in a light most favorable to the judgment and disregard all contrary evidence
and permissible inferences." Med. Plaza One, LLC v. Davis, 552 S.W.3d 143, 153 (Mo.
App. W.D. 2018).
2
Additional facts will be discussed as necessary.
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Analysis
KDW raises five points on appeal. KDW's first point asserts that the trial court erred
by finding that KDW did not timely submit invoices supported by time cards because the
finding lacked "substantial evidence." KDW’s second point argues that the trial court erred
by finding that Grove established the affirmative defense of laches because the finding was
not supported by substantial evidence. KDW's third point asserts that the trial court erred
in finding that KDW breached the Agreement when KDW did not send invoices by United
States Post or another recognized courier. KDW's fourth point claims the trial court erred
in finding that KDW breached the Agreement by not supporting invoices with time cards.
KDW's fifth point asserts the trial court erred in rejecting KDW's request for interest on
the alleged amount owed by Grove. Before considering the merit of KDW's points on
appeal, we must consider whether KDW's appeal is fatally defective because it fails to
challenge all of the multiple, sufficient bases supporting the trial court's Judgment.
Rule 84.04(d)(1)3 requires points relied on to "(A) identify the trial court ruling or
action that the appellant challenges; (B) State concisely the legal reasons for the appellant's
claim of reversible error; and (C) Explain in summary fashion why, in the context of the
case, those legal reasons support the claim of reversible error." Our courts "adhere[] to the
well-entrenched doctrine that the questions for decision on appeal are those stated in the
points relied on, and a question not there presented will be considered abandoned." Gaar
v. Gaar's Inc., 994 S.W.2d 612, 616 (Mo. App. S.D. 1999) (Emphasis added); see also
3
All rule references are to Missouri Court Rules, Volume I—State, 2019, unless otherwise indicated.
5
Spencer v. Lombardi, 500 S.W.3d 885, 889 (Mo. App. W.D. 2016) ("[A]n appellant's
argument is limited to only those errors asserted in the points relied on.") (internal
quotations omitted). None of KDW's points on appeal challenge the trial court findings
that Grove established the affirmative defense of payment, or that KDW failed to meet its
burden of proof as to the correctness or reasonableness of its statement of account.4 KDW's
failure to challenge these bases is fatal to its appeal because these independent bases for
the Judgment are sufficient to affirm the trial court’s denial of KDW's action on account.
"An action on account is based in contract." Building Erection Services Co. v.
Plastic Sales & Mfg. Co., Inc., 163 S.W.3d 472, 477 n. 1 (Mo. App. W.D. 2005). "An
action on account 'is appropriate where the parties have conducted a series of transactions
for which a balance remains to be paid.'" Berlin v. Pickett, 221 S.W.3d 406, 410 (citing 1
AM.JUR.2d Accounts & Accounting section 8 (2005)) (Mo. App. W.D. 2006). "The
plaintiff has the burden of making a submissible case by establishing proof of an offer, an
acceptance, consideration, correctness of the account, and the reasonableness of the
charges." Id. "The plaintiff must prove that the defendant requested him to furnish
services, that he accepted defendant's offer by furnishing such services, and that the charges
for those services were reasonable." Id. at 410-11. "Ordinarily an account is proved by
4
KDW argues in its reply brief that it has preserved these claims of error. KDW directs the court to the
argument portion of its first and second points on appeal. KDW's first point challenges the trial court's finding that
KDW failed to timely submit invoices and time cards, while its second point challenges the trial court's finding that
Grove established a laches defense. Rule 84.04(e) requires that the argument under a point relied on "shall be
limited to those errors included in the 'Point Relied On.'" Thus, any claims in the argument portion of KDW's Points
One and Two that may be construed as challenging the trial court's finding that Grove established a payment
defense, or that KDW failed to establish the essential elements of its action on account, exceed the scope of each
point relied on. Arguments that exceed the scope of the point relied on preserve nothing for our review. See The
Schumacher Group, Ltd v. Schumacher, 474 S.W.3d 615, 624 n. 11 (Mo. App. W.D. 2015).
6
proving each item thereof including date, correctness of each item contained in the account,
the charge made and the reasonableness thereof." J.D. Street & Co. v. Bone, 334 S.W.2d
5, 8 (Mo. 1960).
KDW failed to prove each item of the account. KDW never introduced evidence
showing the total value of services rendered to Grove. In its petition, KDW attached a
Statement of Account dated May 31, 2016, that itemized 20 alleged invoices sent to Grove.
The Statement of Account did not detail any payments from Grove. KDW elected to
proceed on only 14 of the itemized invoices detailed in the Statement of Account,
abandoning recovery on the other invoices because they were concededly not timely sent.
The 14 invoices totaled $65,818.58. KDW's sole witness, Anne Williams ("Williams"),
testified that Grove paid in excess of $80,000 to KDW pursuant to the Agreement.5
Williams acknowledged that other invoices were sent to Grove during the term of the
Agreement, in addition to those sought in the action on account. Neither testimony nor
other evidence established the value of these other invoices. Without this necessary
information, the trial court was unable to determine if there was a remaining balance due
to KDW. Because KDW only offered evidence that Grove owed $65,818.58 and both
parties agreed that more than $80,000 had been paid on the account, the trial court could
not determine the reasonableness or correctness of the account, which requires some kind
of proof of "each item" contained within the account. Additionally, there was substantial
evidence to support the trial court's finding that the affirmative defense of payment had
5
Evidence offered by Grove corroborated this testimony and established that KDW was paid $88,808.75.
7
been established when both parties agreed that a sum had been paid by Grove that was
greater than what was sought on the whole action. These unchallenged determinations are
sufficient to support affirming the trial court's Judgment.
"Failure to challenge on appeal all articulated grounds for the court's ruling is fatal
to the success of the appeal." Eckel v. Eckel, 540 S.W.3d 476, 489 (Mo. App. W.D. 2018)
(citing Spencer v. Lombardi, 500 S.W.3d 885, 889 (Mo. App. W.D. 2016)); see also Knight
v. Con-Agra Foods, Inc., 476 S.W.3d 355, 358-59 (Mo. App. W.D. 2015) ("[I]f a trial court
. . . relies on multiple, independently sufficient grounds in issuing an adverse ruling, the
appellant must challenge each of those independent grounds of decision."). A failure to
challenge all bases for a judgment is fatal because "even if we agreed with [KDW] that the
[trial court] erred" in parts of its Judgment "we would have no choice but to presume, in
the absence of arguments to the contrary, that the [trial court's] other [unchallenged bases
for Judgment] were correct." Knight, 476 S.W.3d at 358-59 (quoting City of Peculiar v.
Hunt Martin Materials, LLC, 274 S.W.3d 588, 590-91 (Mo. App. W.D. 2009)). "Alleged
errors by the trial court must be prejudicial and affect the merits of the action." Id. at 359
(citing Rule 84.13(b)). "Thus, by failing to assert that all of the [trial court's] grounds were
incorrect, [KDW] ha[s] failed to carry [its] burden on appeal of establishing that the [trial
court] erred[.]" Id. at 359.
Because the findings that Grove established the defense of payment and that KDW
failed to meet its burden as to the correctness and reasonableness of its statement of account
are sufficient bases for the court's Judgment, and KDW has failed to challenge these bases
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for Judgment, KDW's appeal is fatally defective. Presuming the unchallenged findings
correct, we have to affirm the trial court's Judgment.
Conclusion
The trial court's Judgment is affirmed.
__________________________________
Cynthia L. Martin, Judge
All concur
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