Standard Improvement Co. v. DiGiovanni

MANFORD, Judge. This is a direct appeal in action for breach of contract. The judgment is affirmed. Appellants present two points which, in summary, charge the trial court erred in (1) submitting M.A.I. 4.09 instead of M.A.I. 4.01 an<^ (¾ by limiting appellants cross-ex-animation of a respondent’s witness, The pertinent facts are as follows: The parties entered into a home improvement [191] contract on April 9, 1986, whereby certain improvements were to be made by respondent to the residence located at 3214 N.E. 51st Terrace, Kansas City, Clay County, Missouri. This contract included a provision for entry upon the premises to permit respondent to complete the work, the work to be done and the price for that work. The contract also included the following language: Other than the right to cancel set out in the following paragraph, Purchaser may terminate this contract any time before work is commenced or any material delivered by paying Seller an amount equal to thirty percent (30%) of the cash sale price as liquidated damages and not as penalty. Unless Purchaser has legally cancelled, AFTER any work is commenced or any material delivered, if Purchaser refuses to allow Seller to complete the improvement, Purchaser shall pay Seller for labor and materials used and sales tax thereon plus thirty percent (30%) of the cash sale price as liquidated damages. Purchaser agrees that any instrument of security which has been executed by him shall secure the liquidated damages herein provided and shall be filed and recorded. Both appellants signed the contract along with a promissory note and deed of trust in support of the contract. Both appellants were given cancellation forms which prescribed their right of cancellation within three days of the execution of the contract. The contract also contained a provision concerning the three-day cancellation right. The evidence revealed that through its representatives, respondent prepared an estimate of costs, secured materials, and sent a crew to the job site to begin the work. Respondent alleges that it was denied access to the residence to commence work, and the work was never commenced. By their testimony, appellants acknowledged execution of the contract, promissory note and deed of trust. Their evidence indicated that the cancellation notice was not presented to respondent until almost a month after execution of the contract. Both appellants acknowledged their abilities to read but disclaimed any knowledge of the liquidated damage provision set forth above. Albert DiGiovanni testified that he never refused respondent entry into the residence. Sandra DiGiovanni stated that she notified her counsel of her unwillingness to proceed with the contract upon the basis of her father’s illness and an understanding of the inability to pay if the work was performed. The cause was submitted to a jury, which returned its verdict in the sum of $7,200.00. Judgment was entered and this appeal followed. Appellants’ point (1) is taken up and, after full consideration, is found to be without merit and is ruled against them for the following reasons: (1) Appellants’ assertion that the liquidated damages clause of the contract is a penalty has no merit. (2) The evidence is clear that appellants repudiated the contract prior to the commencement of work, thus preventing respondent from doing the work, as the evidence revealed that respondent was willing and able to do it. (3) The now-challenged instruction reads as follows: INSTRUCTION NO. 7 If you find in favor of Plaintiff, then you must award Plaintiff Standard Improvement Company $7,200.00. Submitted by Plaintiff M.A.I. 4.09 In addition, the jury received the following instructions: INSTRUCTION NO. 6 Your verdict must be for plaintiff if you believe: First, defendants did not permit plaintiff to enter the property to perform the contract, and Second, because of such failure defendants’ contract obligations were not performed, and [192] Third, plaintiff was thereby damaged. Offered by Plaintiff M.A.I. 26.02 INSTRUCTION NO. 8 Your verdict must be for the defendants unless you believe plaintiff was damaged as a direct result of defendants’ failure to perform their contract obligations, as submitted in Instruction No. M.A.I. 38.01 Submitted by Defendants Appellants charge that in lieu of M.A.I. 4.09, the court should have submitted M.A. I. 4.01., which reads: 4.01 [1980 Revision] Damages-Personal and Property If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe he sustained [and is reasonably certain to sustain in the future] as a direct result of the occurrence mentioned in the evidence. Under the facts and circumstances of this case, M.A.I. 4.09 and not M.A.I. 4.01 was the proper instruction to the jury, and the court did not err in the submission thereof. Also, there was substantial evidence to support the submission of Instruction No. 7, and that issue is not even presented. (4) There is no substance to appellant’s contention that the liquidated damages clause was a penalty. Its terms were set forth explicitly in the contract. Appellants had the right to cancel the contract within the allotted 72 hours as per the terms of the contract and chose not to cancel within that time. Appellants’ point (2) is taken up and, after full consideration, is found to be without merit and is ruled against him for the following reasons: (1) Appellants assert that the trial court erred in denying them the right to cross-examine respondent’s General Manager regarding the gross receipts of respondent for the year 1986 and, as they assert, “By not permitting defendants to attempt to expose the liquidated damage clause in Exhibit 1 (the contract) as a penalty clause, unrelated in amount to any loss of receipts or profits by plaintiff.” As to the first part of appellants’ point (2), the trial court did not err in sustaining respondent’s objection to inquiry regarding the gross receipts of respondent for the year 1986. Such inquiry was irrelevant to any issue at trial. There was no offer of proof as to relevancy by appellants. (2) The extent and scope of cross-examination is discretionary with the trial court and absent a clear showing of an abuse of that discretion, no grounds for reversal exist. The trial court did not abuse its discretion herein. (3) As to the remaining portion of appellants’ point (2), there is no specific argument submitted relative thereto. Appellants’ assertion is merely a conclusion from their assertion that the trial court erred in sustaining respondent’s objection as referenced above. Finding, as this court does herein, that the trial court did not err in sustaining respondent’s objection, the result is that appellants’ conclusion has no meritorious basis. JUDGMENT AFFIRMED. FENNER, P.J., concurs in separate concurring opinion. GAITAN, J., dissents in separate dissenting opinion.