           In the Missouri Court of Appeals
                   Eastern District
                                        DIVISION FOUR

HAZELCREST III                                     )         ED102806
CONDOMINIUM ASSOCIATION,                           )
                                                   )
       Respondent,                                 )         Appeal from the Circuit Court of
                                                   )         St. Louis County
v.                                                 )         12SL-CC04546
                                                   )
FRANK BENT,                                        )         Honorable John D. Warner Jr.
                                                   )
       Appellant.                                  )         Filed: July 12, 2016

                                       INTRODUCTION

       In February 2015, after a bench trial, Hazelcrest III Condominium Association

("Plaintiff") secured a judgment against Frank Bent ("Defendant") for breach of contract and

negligence. Both counts stem from a sewer backup that damaged two units located within

Plaintiff's condominium complex. We affirm.

                                        BACKGROUND

       Plaintiff is a non-profit condominium association overseeing the Hazelcrest III complex

in Hazelwood, Missouri. Defendant owned a condo located within the Hazelcrest III complex,

designated "Unit D", and used it primarily as rental property.

       On October 10, 2012, the occupant of a condominium directly adjacent to Unit D

informed Plaintiff of a water leak in her unit. The occupant then called a plumber, who
determined the water was originating from under the walls—from Unit D. Plaintiff attempted to

contact Defendant but was unable to reach Defendant to inform him of the plumbing issue. Unit

D had been vacant since July 2012, so Plaintiff called the Hazelwood Police Department to

secure entry. Once inside Unit D, Plaintiff discovered Unit D in a foul state: the bathtub and

toilet were overflowing with raw sewage, roaches infested the Unit, and in other rooms the water

was several inches deep. An agent from Hazelwood Code Enforcement surveyed the area,

declared both Unit D and the neighboring condo unfit for human occupancy, and stated that if

the situation were not remedied, the entire building could be condemned.

       Plaintiff declared an emergency pursuant to the powers under the Condominium

Declaration and Bylaws (the "Declaration"), allowing Plaintiff to remediate the damage without

Defendant's express permission. Plaintiff hired a plumber to remedy the clog, which, according

to the plumber, was located in Unit D. Plaintiff also hired a restoration company to return both

units to a safe and habitable condition. Thereafter, Plaintiff attempted to collect from Defendant

for all expenses incurred, as permitted by the Declaration. When Defendant refused to reimburse

Plaintiff for the expenses incurred, Plaintiff commenced this lawsuit. After a bench trial,

Plaintiff was awarded $8,098 in damages and $28,574 in attorney's fees. This appeal follows.

                                          DISCUSSION

       Defendant submits four points on appeal, contending that: (I) the judgment is not

supported by substantial evidence or is against the weight of the evidence; (II) the trial court

abused its discretion in granting two motions in limine in favor of Plaintiff; (III) the amount of

damages assessed is not supported by substantial evidence or is against the weight of the

evidence; and (IV) the trial court abused its discretion in calculating the amount of attorney's fees

assessed against Defendant.



                                                  2
Points I and III – The trial court's judgment was supported by substantial evidence and

was not against the weight of the evidence.

         In his first and third points on appeal, Defendant contends the trial court judgment is not

supported by substantial evidence or is against the weight of the evidence because (A) Plaintiff

did not have the power to unilaterally remedy the situation, (B) the damage to both units was due

to Plaintiff's own negligence, or (C) the amount of damages assessed, specifically concerning the

drywall replacement, is not supported by substantial evidence or is against the weight of the

evidence. We disagree.

                                               Standard of Review

         On review of a court-tried case, this court will affirm the trial court's judgment "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);

see also Rule 84.13(d).1

         Substantial evidence is evidence that, if believed, has some probative force on each fact

that is necessary to sustain the trial court's judgment. Ivie v. Smith, 439 S.W.3d 189, 199-200

(Mo. banc 2014). Evidence has probative force if it has any tendency to make a material fact

more or less likely. Id. When reviewing whether the trial court's judgment is supported by

substantial evidence, appellate courts view the evidence in the light most favorable to the trial

court's judgment, disregarding all contrary evidence, and will defer to the trial court's credibility

determinations. Id. This is because trial courts are free to believe any, all, or none of the


1
  Throughout Points I and III, Defendant's appellate brief combines into the same point relied on a substantial-
evidence challenge and an against-the-weight-of-the-evidence challenge. These are distinct claims. See In re
J.A.R., 426 S.W.3d 624, 630 n. 10 (Mo. banc 2014); Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012). They
must appear in separate points relied on in the appellant's brief to be preserved for appellate review. See Rule 84.04;
Ivie v. Smith, 439 S.W.3d 189, 206 n. 10 (Mo. banc 2014). This Court will gratuitously address the merits of
Defendant's claims. Appellate counsel should take caution to follow Rule 84.04(d).


                                                          3
evidence presented at trial. Id. All fact issues upon which no specific findings are made shall be

considered as having been found in accordance with the result reached. Id.

       A trial court's judgment is against the weight of the evidence only if the trial court could

not have reasonably found, from the record at trial, the existence of a fact that is necessary to

sustain the judgment. Ivie, 439 S.W.3d at 206. This presupposes that there is sufficient evidence

to support the judgment. Id. at 205. In other words, 'weight of the evidence' denotes an appellate

test of how much persuasive value evidence has, not just whether sufficient evidence exists that

tends to prove a necessary fact. Id. at 206. This court defers to the trial court's findings of fact

when the factual issues are contested, as well as when the facts as found by the trial court depend

on credibility determinations. Id. This is because the trial court is in a better position to weigh

the contested and conflicting evidence in the context of the whole case, and is free to believe all,

some, or none of the evidence offered to prove a contested fact. Id. When the evidence poses two

reasonable but different conclusions, appellate courts must defer to the trial court's assessment of

that evidence. Id. The against-the-weight-of-the-evidence standard serves only as a check on a

trial court's potential abuse of power in weighing the evidence, and an appellate court will reverse

only in rare cases, when it has a firm belief that the decree or judgment is wrong. Id.

                                              Analysis

       Here, the trial court did not make specific findings of fact; as such we read all factual

issues as having been found in accordance with a verdict for Plaintiff. See Id. at 199-200.

       Plaintiff brought a two-count Petition for breach of contract and negligence against

Defendant. In its action for breach of contract, Plaintiff was required to prove by a

preponderance of the evidence that Defendant was duty-bound by agreement to remedy the clog,

he failed to do so, and Plaintiff was injured as a result. See Kieffer v. Icaza, 376 S.W.3d 653,



                                                  4
657 (Mo. banc 2012) ("To make a submissible case on a claim of breach of contract, [Plaintiff]

had to prove the existence of a valid contract, the rights and obligations of each party, a breach

and damages."). As to the negligence action, Plaintiff was required to prove by a preponderance

of the evidence that Defendant owed a duty to remedy the clog and failed to do so, thereby

injuring Plaintiff. See Byrd v. Brown, 641 S.W.2d 163, 173 (Mo. App. S.D. 1982)

("[A]ctionable negligence [] involves: defendants' duty to protect the plaintiffs from injury,

failure to discharge that duty, and injury proximately caused by such failure."). We find

substantial evidence to support both Plaintiff's breach of contract action and Plaintiff's

negligence action, and the weight of this evidence supports the trial court's judgment and

awarded-damages on counts I and III.

       The Declaration contains the following relevant provisions:

       The unclogging of drains, pipes and/or sewer lines within the Units and
       partition walls shall be the sole responsibility of the Owner of the effected
       [sic] Unit. Any unclogging of any such of drains, pipes and/or sewer lines
       shall be paid for by the Owner of the affected Unit. Section 5.1(f)(i).

       If the Association determines that any Owner has failed or refused to
       discharge properly his or her obligation with regard to the maintenance,
       repair, or replacement of items of which he or she is responsible hereunder,
       [and] if the Board determines that: (i) an emergency exists [,] then the
       Association may provide any such maintenance, repair, or replacement at
       the Owner's sole cost and expense. Section 5.5.

(emphases added). Therefore, pursuant to the plain language of the Declaration, if the clog is

determined to be within Defendant's unit, Defendant would be responsible for the repair and

replacement costs. Further, if Plaintiff declared an emergency, it could remedy the situation

without notifying Defendant, and bill him for all associated costs.




                                                  5
       A. Evidence of an Emergency

       On October 12, 2010, Plaintiff became aware of a massive water leak emanating from

Unit D. Plaintiff attempted to contact Defendant, but was unsuccessful. One of Plaintiff's board

members, accompanied by two Hazelwood Police Officers, entered Unit D. Therein, they

discovered the bathtub was full of greenish-brownish water, waste was overflowing from the

toilet, and water covered substantial portions of the Unit—several inches deep in some parts. An

officer from Hazelwood Code Enforcement (the "Code Officer") corroborated these facts, and

not only declared Unit D unfit for human occupancy, but found that the neighboring unit was

also unfit because the water had penetrated the wall between the two units. The Code Officer

also informed Plaintiff that the situation needed to be remedied immediately, and if Plaintiff

would not do so, the entire building may have to be condemned. Plaintiff declared an emergency

pursuant to Section 5.5 of the Declaration, allowing Plaintiff to hire a plumber and a restoration

company to remedy the situation and return both units to a habitable and safe condition.

       The record does not reflect whether the Declaration defines the term 'emergency', but even

under Defendant's proposed dictionary definition of the term, we still find substantial evidence to

support the judgment. See Clampit v. Cambridge Phase II Corp., 884 S.W.2d 340, 345 (Mo. App.

E.D. 1994) ("To determine whether a document is ambiguous, we consider the whole instrument

and give the words their natural and ordinary meaning. That natural and ordinary meaning is

derived from the dictionary.").

       Plaintiff, in his brief, offers the following definition of 'emergency': "an unexpected and

usually dangerous situation that calls for immediate action." Merriam-Webster's Learner's

Dictionary (2010), available at http://www.merriam-webster.com/dictionary/emergency,

(accessed July 5, 2016). The above evidence, read most favorably to the verdict, demonstrates:



                                                 6
(1) Plaintiff did not expect to find raw sewage scattered about Unit D; (2) the Code Officer

deemed both units uninhabitable, i.e. dangerous to human occupancy; and (3) the situation needed

to be addressed "immediately" (per the Code Officer) because, inter alia, the neighboring

occupant could not return to the unit until the situation was remedied.

       This evidence substantially supports Plaintiff's contentions that an emergency existed,

enough to sustain the trial court's judgment when read in a light most favorable to the verdict. See

Ivie, 439 S.W.3d at 199-200. Likewise, we find the existence of an emergency is not against the

weight of the evidence, as these facts reasonably indicate that evidence with substantial

persuasive value exists necessary to sustain the judgment. Id. at 206.

       B. Location of the Clog

       Plaintiff's plumber testified that the clog was located within Unit D. He and his partner

determined that the clog could not be located in the main run, nor in the adjoining unit's pipes.

He recalled running approx. 25 feet of cable down from the roof, which he testified would have

put the end of the cable within Unit D. There was some discrepancy as to the amount of cable

used, because an invoice from that day showed that only 10 feet of cable was used—10 feet

would not be enough to reach from the roof into Unit D—and so Defendant contends the invoice

should prevail. However, the plumber testified that the invoice was incorrectly completed by

another plumber who was not on site.

       Since we defer to the trial court's credibility determinations, we find this testimony is

substantial enough to support the trial court's judgment that the clog was within Defendant's

locus of responsibility. See Ivie, 439 S.W.3d at 199-200. Likewise, we find the location of the

clog not against the weight of the evidence, as the plumber's testimony reasonably indicates

evidence exists necessary to sustain the judgment as to this element. Id. at 206. Even assuming



                                                 7
arguendo that Defendant's perspective on the facts are reasonable, we defer to the trial court's

assessment of that evidence. See Id. ("When the evidence poses two reasonable but different

conclusions, appellate courts must defer to the trial court's assessment of that evidence.").

       C. Drywall Replacement

       Plaintiff's restoration company replaced, inter alia, floor-to-ceiling drywall panels in both

units, as it was apparent to multiple witnesses that the extent of the damage necessitated such

repair. The plumber testified that, in similar situations, the drywall would need to be replaced

"because of the mold", as "once the drywall gets wet, it's soaked . . . and basically it doesn't dry

up." Plaintiff's repair man testified that drywall "soak[s] up [water] like a sponge". The Code

Officer testified that "the water had penetrated the wall and was in a hallway of the next unit."

       Defendant's only apparent rebuttal evidence was his own testimony: he believed there was

no reason to remove the drywall, or that perhaps only the bottom half of the wall needed to be

removed. However, Defendant also admitted he had not visited Unit D since July 2012. In

contrast, one of Plaintiff's employees stated that the reason why Plaintiff often hired that

restoration company was because they "never did more work than was necessary" and were

"trustworthy". Plaintiff admitted into evidence the bill detailing the cost for remediation, which

included replacement of the drywall.

       Defendant also contends that the Declaration only gives Plaintiff the power to charge

Defendant for the damage to Unit D, and that the resident of the neighboring unit and/or Plaintiff

should be responsible for the remediation costs to the neighboring unit. This argument is

nonsensical, and contrary to long-established principles of Missouri tort law. See Wiley v.

Homfeld, 307 S.W.3d 145, 153 (Mo. App. W.D. 2009) (“It is Missouri's well-settled rule that a




                                                  8
plaintiff is entitled to full compensation for past or present injuries that the plaintiff has shown by

a preponderance of the evidence were caused by the defendant.”).

       Since Plaintiff had the power to declare an emergency under the Declaration, it could

repair both units and bill Defendant for the expenses. The amount of damages awarded are not

clearly wrong, were reasonably determined, and are not excessive. Scheck Indus. Corp. v.

Tarlton Corp., 435 S.W.3d 705, 731 (Mo. App. E.D. 2014). As to Defendant's against-the-

weight-of-the-evidence challenge, we may only reverse when we have a firm belief that the

decree or judgment is wrong; we harbor no such beliefs.

       Points I and III are denied.

Point II – Limitations on Defendant's Testimony was not erroneous.

       In his second point on appeal, Defendant claims the trial court abused its discretion in

granting two motions in limine in favor of Plaintiff. Specifically, Defendant contends he was

improperly barred from (A) testifying about statements made by Plaintiff's representatives at a

board meeting in April 2012, six months before the incident, concerning the existence of a

sewage backup, and (B) speculating at trial as to the origins of the sewage backup. Defendant

contends each of these rulings materially affected his defense in a prejudicial way, and he is

therefore entitled to a reversal of the judgment. We disagree.

                                         Standard of Review

       The standard of review governing a trial court's decision to grant motions in limine is an

abuse of discretion standard. Intertel, Inc. v. Sedgwick Claims Mgmt. Servs., Inc., 204 S.W.3d

183, 193 (Mo. App. E.D. 2006). The trial court abuses its discretion only when the ruling is

clearly against the logic of the circumstances then before the trial court, and is so arbitrary and

unreasonable as to shock the sense of justice and indicate lack of careful consideration. Id. A



                                                  9
trial court's discretionary ruling is presumptively correct and the appellant bears the burden of

showing that the trial court abused its discretion and that the appellant was prejudiced by the

abuse. Id. Where reasonable persons can differ about the propriety of the trial court's judgment,

it cannot be said that the trial court abused its discretion. Id.

                                                Analysis

           A. Board Meeting Statements

           As to the statements purportedly made to Defendant at the board meeting, Defendant

avers that, had he been allowed to testify that he put Plaintiff on notice concerning the existence

of the clog, "we would not be in this situation nearly three years later." However, as we have

discussed above, there is sufficient evidence to show that the clog was located within Unit D, and

therefore Plaintiff's awareness of the clog is irrelevant. Simply, due to the allocation of

responsibilities delineated in the Declaration, it was Defendant's sole responsibility to unclog any

"drains, pipes and/or sewer lines within the Units and partition walls . . ."2

           "Failure to admit evidence does not mandate a reversal of a judgment unless the error

materially affected the merits of the action." See Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 456

(Mo. banc 2014) (holding that "there is no connection whatsoever between the excluded

evidence and the theories . . . that [Defendant] pled and tried to this jury"). Even assuming

arguendo that the trial court abused its discretion—an unconvincing argument to say the least—

we find that Defendant was not prejudiced by the exclusion of these purported statements.

           B. Speculation on Origins of Sewage Backup

           As to Defendant's desire to speculate as to the origins of the sewer backup, we find the

trial court did not abuse its discretion in barring this testimony.



2
    See Points I and III, supra.

                                                   10
       "The purposes of discovery are to eliminate concealment and surprise, to aid litigants in

determining facts prior to trial . . . to provide litigants with access to proper information with

which to develop their respective contentions and to present their respective sides on issues

framed by the pleadings . . . [and] to preserve evidence, prevent unjust surprise, and formulate

issues for trial.” Fairbanks v. Weitzman, 13 S.W.3d 313, 327 (Mo. App. E.D. 2000).

       During discovery, Plaintiff deposed Defendant, and asked about his knowledge of the

origins of the backup.

       Q [Attorney for Plaintiff]: So you said there was a sewage backup that occurred?
       A [Defendant]: Yes.
       Q: And do you know where that sewage backup was originating from?
       A: I don't.
       Q: Do you believe the leak came from [the neighboring unit]?
       A: I don't know where it came from.

       ***

       Q: The sewage backup that occurred in October, that was from a common element?
       A: I don't know.

Since Defendant answered in his deposition in a way that would have contradicted his proposed

testimony, the trial court granted Plaintiff's motion in limine, commenting that:

       This line of questioning was right on point. [Defendant] can't come in now and
       speculate as to where the blockage came from when he was given every
       opportunity, it appears in his deposition, to do that. And he said he didn't know
       where it is, and I'm not going to let him do it now.

This ruling is not clearly against the logic of the circumstances, nor does it appear to be so

arbitrary and unreasonable as to shock the sense of justice and indicate lack of careful

consideration. Id. Even if we accept that Defendant only intended to testify that he was sure the

clog was not located in Unit D—as stated at oral argument—and therefore he was wrongfully

barred from testifying, we do not find the trial court's judgment improper. See Intertel, 204




                                                  11
S.W.3d at 193 ("Where reasonable persons can differ about the propriety of the trial court's

judgment, it cannot be said that the trial court abused its discretion.).

           Point II is denied.

Point IV – Amount of Attorney's Fees Assessed

           In his final point on appeal, Defendant claims the trial court abused its discretion in

calculating attorney's fees assessed against him. We disagree.

                                                  Standard of Review

           The determination of attorney fees is within the sound discretion of the trial court and

should not be reversed unless the award is arbitrarily arrived at or is so unreasonable as to

indicate indifference and lack of proper judicial consideration. Trimble v. Pracna, 167 S.W.3d

706, 714 (Mo. banc 2005).

                                                        Analysis

           Where a party's claim to attorney fees is based upon a contract the court must adhere to

the terms of the contract. Id. The trial court is deemed an expert at fashioning an award of

attorney's fees and may do so at its discretion. W. Blue Print Co., LLC v. Roberts, 367 S.W.3d

7, 23 (Mo. banc 2012). The trial court that tries a case and is acquainted with all the issues

involved may fix the amount of attorney's fees without the aid of evidence. Id.

           Section 11.2 of the Declaration allows for an award of attorney's fees to Plaintiff if it

prevailed in its action against Defendant.3 At the conclusion of the bench trial, Plaintiff

presented billing statement delineating its costs and fees. The statement contained a detailed list


3
    Section 11.2 reads as follows:
           Attorney Fees. If an Owner or an Owner's family member, guest, tenant, invitee or licensee fails to
           comply with any provision of the Governing Documents, the Association may require
           reimbursement for reasonable attorney fees and costs incurred as a result of such failure to comply,
           without the necessity of commencing a legal proceeding. In a legal proceeding in any way related
           to the Governing Documents or the Community, the court shall award to the Association, if it is the
           prevailing party, its reasonable attorney fees and costs incurred in asserting or defending the claim.

                                                            12
of the attorneys who worked on this case, the hours logged by each attorney (as well as their

rates), and a line-itemized total cost for each task completed. The statement shows

approximately 100 hours logged prior to trial, three-quarters of which were completed by

associates, for a total of approximately $25,000 in fees.

       Plaintiff's Counsel also testified—under oath and subject to cross examination—that an

additional $5,000 would be added due to the fees incurred for trial, and that Plaintiff's Counsel

offered Plaintiff a 10% discount due to Plaintiff's not-for-profit status, thus bringing Plaintiff's

fees to approximately $27,000. Plaintiff also requested approximately $1,500 in costs.

Plaintiff's Counsel finally testified that some costs associated with jury trial preparation had been

removed from the statement.

       Defendant objected to the reasonableness of the request, arguing that a $27,000 award for

a "relatively small straightforward breach of contract action" with just over $8,000 in actual

damages would be unreasonable. Plaintiff's Counsel testified that a good deal of the run-up in

costs was due to Defendant's "strenuous (for some reason) defense of this case." This, according

to Plaintiff's Counsel, included time billed for drafting motions to strike and motions for a more

definite statement, for a deposition conducted by Plaintiff where Defendant failed to appear,

Defendant's hour-tardiness to his next scheduled deposition, Plaintiff's need to answer

Defendant's counterclaims (which the court found baseless), and Defendant's general

unwillingness to settle early in the case. Defendant did not cross-examine Plaintiff's Counsel on

any of these statements.

       In its judgment and order, the trial court found a contractual basis for an award of

attorney's fees (the Declaration), and as an expert, determined the "various hourly rates of the




                                                  13
Plaintiff's attorney's law firm are reasonable." The court awarded $1,457.88 in costs and

$28,574.25 in attorney's fees, stating:

       On the surface, these attorney's fees would seem to be excessive. However, it was
       the cavalier attitude that the Defendant showed in the handling of his defense in
       this case that unnecessarily delayed these proceedings and in major part caused
       the Plaintiff, a non-profit condominium association, to incur more than normal
       attorney's fees. (It should also be noted that the Defendant also showed a cavalier
       attitude regarding the plumbing problem that led to the raw sewage flowing in his
       rental condo, which housed a young mother and young child as tenants).

       Since the Declaration contemplates an award of attorney's fees, whether incurred in or out

of court, the trial court had the authority to make an award in Plaintiff's favor. While the amount

of the fees may seem high when compared to the damages awarded, the trial court took this into

consideration when crafting its award. We cannot say that this amount was arbitrarily arrived at

or that it indicates indifference or lack of proper judicial consideration.

       Point IV is denied.

                                          CONCLUSION

       The judgment of the trial court is affirmed.




                                                       ___________________________________
                                                       Lisa P. Page, Judge


Sherri B. Sullivan, P.J. and Kurt S. Odenwald, J., concur.




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