Larry Declue v. Tara M. McCann d/b/a Disaster Recovery Specialists, LLC, and William Horn , 463 S.W.3d 792 ( 2015 )

In the Missouri Court of Appeals
Eastern District
DIVISION III
LARRY DECLUE, ) No. ED101450
)
Appellant, ) Appeal from the Circuit Court
) of St. Charles County
vs. )
) Honorable Frederick L. Westhoff
TARA M. MCCANN D/B/A DISASTER )
RECOVERY SPECIALISTS, LLC, and )
WILLIAM HORN, )
)
Respondents. ) FILED: February 10, 2015
Introduction
Appellant Larry DeClue (“DeClue”) appeals from the judgment of the trial court
following a bench trial. DeClue sued Respondent Tara McCann (“McCann”) and Respondent
William Horn (“Horn”) for breach of contract in the Small Claims Division of the Circuit Court
of St. Charles County (“Small Claims court”), receiving a default judgment in his favor against
McCann in the amount of $4,006.75 and a judgment of $500.00 against Horn. McCann applied
for a trial de novo, which was certified to the Circuit Court of St. Charles County (“the trial
court”). After a bench trial, the trial court entered a judgment awarding DeClue damages in the
amount of $1,000 from McCann and in the amount of $350 from Horn. DeClue argues on
appeal that the trial court erred in entering a judgment different than the judgment entered by the
Small Claims court, that the trial court violated the Code of Judicial Conduct, and that the trial
court erred in entering a judgment with respect to Horn because he appealed only the Small
Claims court judgment against McCann. This appeal is without merit as DeClue fails to
understand the nature of a de novo review, and substantially fails to meet his burden with regard
to the evidentiary matters raised. Accordingly, we find no error and affirm the judgment of the
trial court.1
Factual and Procedural History
The dispute in this case arises from a contractual agreement for the reconstruction of
Horn’s house, which was severely damaged by fire. McCann and her company, Disaster
Recovery Specialists, LLC, were retained by Horn to coordinate the reconstruction of Horn’s
house, and oversee the efforts of the insurance company and the various subcontractors.
McCann entered into an agreement (“the Contract”) with DeClue in which DeClue agreed to
provide plumbing services for the reconstruction project on Horn’s house for a price of $12,150.
DeClue received a payment of $3,000 from McCann at the outset of the project. After DeClue
began working on the plumbing project, McCann was notified by Horn’s insurance company that
it would not provide any further funding for the reconstruction project. McCann immediately
notified DeClue of this development and told him to cease working on the project. DeClue
agreed to reach a stopping point in his work. DeClue continued to work on the project for one
1
McCann filed a motion taken with the case to dismiss DeClue’s appeal for failure to comply with Rule 84.04.
Although DeClue’s brief is deficient in many respects, we nevertheless understand the essence of his argument and
will review DeClue’s appeal ex gratia. It should be noted, however, that DeClue’s brief is deficient with respect to
Rule 84.04 in that it contains ongoing factual recitation within the argument portion of the brief, fails to include
specific citations to the legal file, and includes various other oddities, including, among others, a list of several
different “Standards of Review” and what appears to be an appendix within the statement of facts section. Despite
these deficiencies, the motion to dismiss is denied.
2
more day, filling in the basement with concrete, referred to as “roughing in,” to prevent the
basement from being a safety hazard.
On October 29, 2013, DeClue filed suit against McCann and Horn in Small Claims court
seeking $4,578.23 in damages for breach of contract. The Small Claims court entered a default
judgment in the amount of $4,006.75 against McCann on January 30, 2014 and a judgment of
$500 against Horn on February 5, 2014. McCann timely filed a petition for trial de novo with the
Circuit Court on February 10, 2014. The case was certified and taken up by the trial court. On
April 22, 2014, Horn was joined as a third party defendant.
The trial court held a bench trial on May 6, 2014. McCann, Horn, and DeClue all
testified at trial. DeClue testified that in his opinion, he performed $6,450 worth of the work
specified in the Contract. DeClue also testified that he performed additional work of “roughing
in” the basement for $500 pursuant to an oral agreement with Horn. None of the parties disputed
that DeClue fully completed the additional “roughing in” work. Horn and McCann testified that
DeClue was paid $3,000 for the work he had completed. The trial court also heard testimony
from Rob Phillips (“Phillips”), a certified master plumber in St. Charles County. Phillips
testified that he had observed Horn’s house and the plumbing work performed at the house by
DeClue. Phillips testified that DeClue had completed approximately one-quarter of the work
required under the Contract. Phillips also testified that some of DeClue’s work did not comply
with local building and plumbing codes and would not pass inspection. Phillips estimated that it
would cost approximately $1,600 to $1,800 to fix the deficiencies and bring DeClue’s work into
code compliance. Finally, Phillips testified that the regular and customary fee the average
plumber would charge for the work DeClue completed was $3,200.
3
At the close of the trial, the trial court found that a valid contract existed for $12,150, and
that only two issues remained for its determination: first, how much of the Contract was
performed, and second, if the Contract was performed in an unsatisfactory manner, what credit,
if any, McCann and Horn should receive. The trial court entered its judgment on May 6, 2014,
finding that DeClue was entitled to $1,000 from McCann and $350 from Horn. Court costs were
divided evenly among the three parties. This appeal follows.
Points on Appeal
DeClue presents five points on appeal. In Point One, DeClue asserts that the trial court
erred and exceeded its authority when it entered a judgment in favor of DeClue for damages in
an amount less than the judgment entered by the Small Claims court. In Points Two, Three, and
Four, DeClue contends that the trial court violated the Code of Judicial Conduct because it
misapplied certain facts and evidence at trial in entering its judgment. In Point Five, DeClue
maintains that the trial court erred in entering a judgment with respect to Horn because he
appealed the Small Claims court judgment and sought a trial de novo only against McCann.
Standard of Review
In a judge-tried case, we will affirm the judgment of the trial court 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We defer
to the trial court’s determinations of credibility and view the evidence and the inferences drawn
therefrom in the light most favorable to the judgment. Vinson v. Adams, 192 S.W.3d 492, 494
(Mo. App. E.D. 2006).
4
Discussion
Although DeClue presents five points on appeal, we discern three discrete legal
arguments contained within those points. We will consider each of these three arguments in
turn.
I. The trial court did not err or exceed its authority in entering a judgment different
than the judgment entered by the Small Claims court.
In Point One, DeClue argues that the trial court had no authority to enter a judgment
different than the judgment entered by the Small Claims court. DeClue challenges the authority
of the trial court to enter a judgment that awards a lower amount of damages than the amount
awarded by the Small Claims court. This argument fails to grasp the nature of a trial de novo.
Any party aggrieved by a final judgment rendered by a small claims court may appeal
that judgment and receive a trial de novo. RSMo. Section 482.365.2. In this case, McCann, the
aggrieved party, requested and was granted a trial de novo by the trial court. The term “trial de
novo” means “[a] new trial on the entire case – that is, on both questions of fact and issues of law
– conducted as if there had been no trial in the first instance.” KNT Mgmt., LLC v. Flenoid, 419
S.W.3d 897, 901 (Mo. App. E.D. 2014). The trial court here, in conducting a trial de novo,
conducted a new trial as to all issues, as if the Small Claims court judgment had never occurred.
Consequently, DeClue’s argument that the judgment of the Small Claims court should have any
bearing whatsoever on the judgment of the trial court following a trial de novo is completely
without merit and contrary to well-established legal principles. Point One is denied.
II. The trial court did not violate the Code of Judicial Conduct.
In Points Two, Three, and Four, DeClue argues that the trial court violated the Code of
Judicial Conduct by misapplying various facts and evidence in entering its judgment. DeClue
makes disjointed reference to several alleged errors in the trial court’s application of facts and
5
evidence throughout his brief. We will not attempt to parse through the myriad of allegations, as
DeClue’s claim is completely devoid of legal merit and disregards the level of discretion
afforded the trial court as fact-finder as well as this Court’s standard of review on appeal.
The trial court, as the finder of fact, is free to disregard and weigh facts, evidence, and
witness testimony. White v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010). On
appeal, this Court will defer to the trial court’s determination of credibility. Id. Our role is not to
re-evaluate testimony through our own perspective; instead, we are confined to determining
whether substantial evidence exists to support the trial court's judgment, whether the judgment is
against the weight of the evidence, or whether the trial court erroneously declared or misapplied
the law. Id. at 309. A primary reason for this standard of review is that the trial court “is in a
better position not only to judge the credibility of witnesses and the persons directly, but also
their sincerity and character and other trial intangibles which may not be completely revealed by
the record.” Id. at 308-09. Accordingly, our standard of review combined with our deference to
the trial court’s discretion sets a high bar for reversal, for which the burden is on the appellant.
DeClue has failed to advance any factual or legal allegations that come close to meeting this
burden. Instead, it appears that DeClue simply disagrees with the decision reached by the trial
court. Points Two, Three, and Four are denied.
III. The trial court did not err in entering a judgment with respect to Respondent Horn,
who was properly joined as a party to the action.
In Point Five, DeClue argues that the trial court erred in entering a judgment with respect
to damages owed to DeClue by Horn, because DeClue appealed and sought a trial de novo on
only the Small Claims court judgment against McCann , and not on the judgment against Horn.
This claim is similarly without merit. DeClue ignores the fact that Horn was properly joined as a
third-party defendant to this action on April 22, 2014. McCann proceeded to trial without
6