author: KENNETH M. ROMINES, Judge.

text:
    Scott W. HALE and E. Marie Hale, Respondents, v. George W. HALE, Doris R. Hale, and the George W. Hale Trust, Appellants.
    No. ED 85644.
    Missouri Court of Appeals, Eastern District, Northern Division.
    Dec. 27, 2005.

      Dennis Owens, Kansas City, MO, for appellant.
    Scott Templeton, Kirksville, MO, for respondent.
   KENNETH M. ROMINES, Judge.

Background

This matter is a partition suit between father and son. From 1968 to 2001, George Hale (“George”) worked for General Motors as an engineer and production supervisor, as well as in planning. George also began working for H & R Block in 1972, where he prepares taxes. George’s son, Scott Hale (“Scott”), is a Second Lieutenant in the Marine Corps — a job that requires Scott to travel overseas, often for months or years at a time.

In the 1980s, George and Scott began investing in repossessed farm properties. These properties include a farm in Sullivan County (“Sullivan farm”), a farm in Ray and Carroll counties (“Ray-Carroll farm”), a farm in Knox and Shelby counties (“Knox-Shelby farm”), and a cattle partnership.

On 14 May 2001, George decided he could no longer work with Scott. The parties could not decide how to divide the farms or the cattle partnership, or their related income and expenses. Scott filed a petition for partition of the properties. The case was heard in a bench trial before the Circuit Court of Shelby County, the Honorable Hadley E. Grimm, presiding. The Court entered its Interlocutory Judgment on 30 December 2003. The Court entered its Final Judgment with Findings of Fact and Conclusions of Law on 17 December 2004. George appeals this judgment, and we affirm.

The Judgment Below

With respect to all properties, the Court found that George co-mingled the income and expenses from the properties in one account, along with the income and expenses from other property owned by George. The Court also found that George failed to produce the records needed to make a precise accounting of these expenses and income. The Court’s findings regarding the individual properties are set forth below.

Sullivan Farm

Although this farm was deeded jointly in both George’s and Scott’s names, Scott was its intended owner. Despite George’s testimony to the contrary, George intended his contributions to the farm’s down payment, principal, and interest, to be a gift to Scott. In 2000, George executed a deed that conveyed the farm to Scott. Based on the testimony of expert Ron Plain, a professor with the University of Missouri’s Department of Agriculture Economics, $15,000 per year represents a reasonable cash rental value of the farm from 1988 to 1999. Scott was awarded this amount, plus nine percent interest, less provable costs of permanent improvements, and less federal and state income taxes and real estate taxes paid by George.

Ray-Carroll and Knox-Shelby Farms

George and Scott entered an oral partnership agreement to purchase farm property, and acquired the Ray-Carroll and Knox-Shelby farms pursuant to this agreement. Both farms were titled in the names of Scott Hale and the George Hale Trust (“Trust”). Thus, the deeds created a tenancy in common — with Scott and Trust each presumptively owning a one-half interest. Because it is impossible to determine each party’s capital contribution from the record, the presumption of equal co-ownership was not rebutted. Scott was awarded one-half the value of the Ray-Carroll and Knox-Shelby farms as of 14 May 2001, plus nine percent interest, less one-half of the sale expenses. Scott was also awarded a percent of the income, plus interest; George was allowed to deduct taxes and improvement costs.

Cattle Partnership

In fall 1998, George and Scott entered an express, oral agreement to create a cattle partnership. The parties orally agreed to share income and expenses equally. However, with the exception of the proceeds from a calf sale in 2001, George received all income and paid all expenses. The parties dissolved the partnership by mutual agreement on 14 May 2001, but did not settle the partnership accounts. Thus, George retained the cattle, and Scott allowed George to continue the business. Scott was awarded the value of a one-half interest in the cattle as of 14 May 2001, plus interest.

George’s Claims of Error

George raises six points on appeal. First, with respect to the Sullivan farm, George argues that the Court improperly relied on Ron Plain as an expert and awarded Scott $15,000 per year in rental income, without considering George’s contributions to the property or the property’s losses. Second, George argues that the Court erred when it divided the Ray-Carroll and Knox-Shelby farms equally, because the presumption of equal co-ownership was rebutted with evidence of his contributions to the properties. Third, George argues that the Court erred when it failed to award him credit for costs and payments he made to the farms. Fourth, George argues that the Court erred when it failed to allocate the losses of the cattle partnership, as required by Missouri’s Uniform Partnership Law, and failed to consider expenses George paid. In his fifth point, George argues that the Court erred when it awarded Scott’s attorney, Scott Templeton (“Templeton”), a fee equivalent to a real estate broker’s fee, rather than an hourly rate. Finally, George argues that the Court erred when it awarded Scott prejudgment interest. We disagree with all of these claims.

Analysis

We first note that the evidence presented at trial was crude and incomplete, at best. George, a self-proclaimed tax expert, co-mingled the income from all properties in a single account. Thus, a precise accounting of the income and expenses involved with each property is impossible. At his deposition, for example, George stated that he did not have any documents regarding the Sullivan accounting — nor did he know how much money the Sullivan farm generated. At the second hearing, however, George produced ten grocery bags of such documents. George also hired an accountant to recreate records of his and Scott’s contributions to the farms. However, because George did not have all the records needed to produce a proper accounting, he had to recreate them. Thus, we acknowledge the difficult record before the court below.

Partition of Sullivan, Ray-Carroll, and Knox-Shelby Farms

First, we address George’s first and second points of error, regarding the Sullivan, Ray-Carroll, and Knox-Shelby farms. With respect to our review of the Court’s reliance on expert Ron Plain’s testimony regarding the cash rental value of the Sullivan farm, we note that the Court has discretion in deferring to an expert’s assessment of what information is reasonably reliable. Whitnell v. State, 129 S.W.3d 409, 416 (Mo.App. E.D.2004). Questions regarding the sources and bases of an expert’s opinion affect the weight rather than the admissibility of the opinion. Id. The exclusion or admission of expert testimony is within the sound discretion of the trial court, and we will not disturb this ruling absent a clear abuse of discretion. Id. Plain has conducted surveys of Missouri property for more than 22 years. He testified that he compared a description of the Sullivan farm to survey information and historical results for Missouri property. The Court had an opportunity to evaluate the basis of Plain’s opinion, and we defer to the Court’s assessment of his testimony. The Court did not err when it relied on Plain’s testimony.

We now turn to the Court’s partition of the Sullivan, Ray-Carroll, and Knox-Shelby farms. The Court’s judgment must be sustained 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 accept as true the evi dence and reasonable inferences therefrom in the light most favorable to the verdict, and disregard all contradictory evidence and inferences. Malawey v. Malawey, 137 S.W.3d 518, 522 (Mo.App. E.D.2004). In our review, we also defer to the Court’s superior ability to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles not revealed in the transcript. Id. The trial court may accept or reject all, part, or none of the witnesses’ testimony. Id.

At trial, the parties presented conflicting testimony regarding ownership of the farms. With respect to the Sullivan farm, Scott testified that he is the intended owner. Scott also testified that George offered to put his name on the deed only so he could manage the farm when Scott was abroad; Scott agreed. George, however, testified that he and Scott were equal co-owners of the farm. George testified that he only deeded the farm to Scott so Scott would inherit more property than his sister—not to relinquish ownership. With respect to the Ray-Carroll and Knox-Shelby farms, Scott testified that he and his father had an oral agreement to enter a “partnership” to acquire a “conglomerate” of land, and thus co-owned these two farms equally. George denied the existence of a partnership, and testified that he and Scott merely agreed to purchase the Ray-Carroll farm. Scott also testified that, with respect to all properties, George received all income, paid all debts and taxes, and enjoyed all tax benefits.

After hearing George and Scott’s conflicting testimony regarding ownership of the farms, the Court determined Scott’s testimony was credible, but that George’s testimony was not credible. Because the trial court is in a superior position to evaluate witness credibility, we defer to the Court’s determination. See Malawey, 137 S.W.3d at 522. The Court’s partition of the Sullivan, Ray-Carroll and Knox-Shelby farms was not error. Points one and two are denied.

Credit for Costs and Payments

Our review of point three is determined by Murphy v. Carron, supra. The Court had an opportunity to hear the parties’ evidence regarding costs and payments made to the farms. The Court was free to disbelieve George’s testimony regarding the amounts he allegedly spent. Because the Court was free to accept or reject all, part, or none of each witness’s testimony, we defer to its determination. See Malawey, 137 S.W.3d at 522. The Court did not err when it declined to award George credit for these amounts. Point three is denied.

Cattle Partnership

Our review of point four is also determined by Murphy v. Carron, supra. The Court found credible Scott’s testimony that the parties orally agreed to share all income and expenses equally. Because the parties had an agreement regarding the distribution of profits and losses, the Court properly declined to apply Missouri’s Uniform Partnership Law. The Court also found that, despite this agreement, George received most of the income and all of the tax benefits, and paid all expenses. As mentioned above, the Court had an opportunity to hear the parties’ evidence regarding the expenses and income involved. The Court was free to disbelieve George’s testimony regarding the expenses he allegedly incurred in connection with the cattle partnership. Because the Court was free to accept or reject all, part, or none of each witness’s testimony, we defer to its determination. See Malawey, 137 S.W.3d at 522. Point four is denied.

Attorney’s Fees

Because a court’s award of attorney’s fees is presumptively correct, we review George’s fifth point of error for an abuse of discretion. Norber v. Marcotte, 134 S.W.3d 651, 663 (Mo.App. E.D.2004). The complaining party has the burden to show the Court’s decision was against the logic of the circumstances, and so arbitrary and unreasonable as to shock one’s sense of justice. Id.

At trial, Templeton testified that he spent 177.1 hours working on the partition sale alone. In its judgment, the Court stated that “an attorney’s fee of $57,180 is fair and reasonable,” but did not indicate that this fee was a real estate commission. In addition, this fee is less than the $93,-267.47 — or 4.89 percent of the sale price, which would have represented a real estate commission — requested by Templeton. George has not shown that the attorney’s fee awarded is in fact a real estate commission, or is unreasonable. We cannot say that the Court abused its discretion. Point five is denied.

Prejudgment Interest

Our review of George’s sixth and final point of error is guided by Murphy v. Carron, supra. Section 358.420 RSMo. (2000) provides that, when a business continues after dissolution without settlement of partnership accounts, a retiring partner is entitled to: “the value of his interest at the date of dissolution ascertained, and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or ... the profits attributable to the use of his right in the property of the dissolved partnership .... ” (emphasis added); Prange v. Prange, 755 S.W.2d 581, 589 (Mo.App. E.D.1987). In this case, the Court found that the business continued after the date of dissolution, 14 May 2001; determined the value of Scott’s assets in the cattle partnership as of that date; and awarded Scott interest on this amount. The Court complied with the statute, and, thus, its award of prejudgment interest was not made in error. Point six is denied.

The judgment is affirmed.

GLENN A. NORTON, C.J., and CLIFFORD H. AHRENS, J., concur.

      . The deeds and pleadings in this case refer to George and his wife, Doris Hale, and Scott Hale and his wife, Marie Hale. Because the heart of the conflict involves George and Scott, their names are used.

      . Scott responds that George’s second point of error failed to preserve this issue for appellate review. Although George’s point relied on is certainly not perfect, we are able to discern his argument and will hear this point. See Thummel v. King, 570 S.W.2d 679, 685-86 (Mo. banc 1978); Gray v. White, 26 S.W.3d 806, 816 (Mo.App. E.D.1999).

      . In addition to his objections to Plain's calculation methods, George also contends the Court improperly relied on Plain’s estimates .of cash rent value, because the farm was rented on a crop share basis. However, Plain testified that cash rent tends to produce less money over time than crop share—if Plain’s calculations were inaccurate, they were low, and actually favorable to George.


source: Caselaw Access Project

author: KATHIANNE KNAUP CRANE, Presiding Judge.

license: Public Domain

text:
    Robert F. NAGEL, Plaintiff/Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Defendant/Appellant.
    No. ED 85732.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 27, 2005.

      Theodore D. Dearing, Dearing & Hart-zog, L.C., Clayton, MO, for respondent.
    Cheryl Caponegro Nield, Assistant Attorney General, Jefferson City, MO, for appellant.
   KATHIANNE KNAUP CRANE, Presiding Judge.

The Director of Revenue (the Director) appeals from a judgment of the trial court reinstating a motorist’s driving privileges after the Director suspended them pursuant to section 302.291 RSMo (2000). The trial court found that the Director did not have good cause to believe that the motorist was incompetent or unqualified to retain his license. We affirm.

On April 5, 2004, Robert F. Nagel went to the Missouri Department of Revenue, Drivers License Bureau, in South St. Louis County to renew his drivers license. A Drivers License Bureau clerk, J. Gia-marino, filled out a form to be “completed when Department of Revenue personnel observe an obvious physical impairment of an applicant and when appropriate restrictions are not noted on the driver license as provided in Sections 302.173, 302.291, and 302.301, RSMo.” The clerk recorded Mr. Nagel’s name and identifying information at the top of the form. In the space for describing impairment, the clerk wrote: “Gentleman walks with a cane, and while in office, needed assistance from someone else to walk to counter. Vision was barely passing. A wheelchair was brought in by a family member to take him out of the office.” The clerk signed his or her name under the printed statement: “Based on my observation of the above named person and information relayed to me by this individual, I believe he/she should be cited to take a physical and/or a driving test to determine his/her driving ability, or what restrictions, if any, are needed.”

On April 29, 2004, the Division of Motor Vehicle and Drivers Licensing (the Division) sent Mr. Nagel a letter that instructed him to obtain a physical examination and have his doctor complete a medical form enclosed with the letter. Mr. Nagel’s physician completed the Department of Revenue’s Physician’s Statement form. He reported that Mr. Nagel’s vision with his glasses was 20/20, and that Mr. Nagel had no other physical or mental conditions that would impair his driving. The physician checked the box giving his opinion that Mr. Nagel was capable of operating a motor vehicle safely and responsibly and signed the statement.

On May 19, 2004, the Division requested that Mr. Nagel take a driving skills test, and advised him that his license would be revoked if he did not take and pass this test by June 19, 2004. Mr. Nagel did not take the driving skills test. On July 22, 2004, the Driver and Vehicle Services Bureau advised Mr. Nagel that his license would be revoked on August 23, 2004. It also advised that he had thirty days in which to appeal the decision.

On August 4, 2004, Mr. Nagel filed a petition to review the revocation of his drivers license. After a hearing, the trial court entered a judgment reinstating Mr. Nagel’s driving privileges. The Director appeals from this judgment.

For her sole point on appeal, the Director contends that the trial court erred in reinstating Mr. Nagel’s driving privileges because the Director showed good cause to request an examination in that the reporting clerk made observations that could suggest physical impairments that could affect safe operation of a motor vehicle.

We must sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Thomas v. Director of Revenue, 136 S.W.3d 875, 878 (Mo.App.2004). Section 302.291 RSMo is “quasi-penal,” and, therefore, there is a heavy burden on the Director to prove that conditions exist to authorize the suspension of a citizen’s driving privileges. Id., citing Haynes v. Williams, 522 S.W.2d 623, 627 (Mo.App.1975).

Section 302.291 provides:

The director, having good cause to believe that an operator is incompetent or unqualified to retain his or her license, after giving ten days’ notice in writing by certified mail directed to such person’s present known address, may require the person to submit to an examination as prescribed by the director.
3. The director shall have good cause to believe that an operator is incompetent or unqualified to retain such person’s license on the basis of, but not limited to, a report by:
(1) Any certified peace officer;
(2) Any physician, physical therapist or occupational therapist licensed pursuant to chapter 334, RSMo; any chiropractic physician licensed pursuant to chapter 331, RSMo; any registered nurse licensed pursuant to chapter 335, RSMo; any psychologist or social worker licensed pursuant to chapter 337, RSMo; any optometrist licensed pursuant to chapter 336, RSMo; or
(3)Any member of the operator’s family within three degrees of consanguinity, or the operator’s spouse, who has reached the age of eighteen, except that no person may report the same family member pursuant to this section more than one time during a twelve-month period.
The report must state that the person reasonably and in good faith believes the driver cannot safely operate a motor vehicle and must be based upon personal observation or physical evidence which shall be described in the report, or the report shall be based upon an investigation by a law enforcement officer. The report shall be a written declaration in the form prescribed by the department of revenue and shall contain the name, address, telephone number, and signature of the person making the report.

“ ‘Good cause’ depends upon the circumstances of the individual case, and a finding of its existence lies largely in the discretion of the officer or court to which the decision is committed.” Thomas, 136 S.W.3d at 878 (quoting Wilson v. Morris, 369 S.W.2d 402, 407 (Mo.1963)). The report must contain facts that “would entitle a reasonable person to have good cause to believe that a person is ‘incompetent or unqualified’ to operate a motor vehicle safely on the public highways.” Haynes v. Williams, 522 S.W.2d 623, 627 (Mo.App.1975). The determination of whether the Director abused her discretion turns on what evidence was available to the Director when she made the good cause determination. Thomas, 136 S.W.3d at 878; Pous v. Director of Revenue, 998 S.W.2d 129, 132 (Mo.App.1999). The adequacy of the basis for the Director’s good cause determination is a question of law. Thomas, 136 S.W.3d at 878.

At the time the Director determined that there was good cause to require Mr. Nagel to submit to a driving skills examination, she had the form on which the clerk recorded his or her observations of Mr. Nagel on April 5, 2004, and the completed physician’s report that recorded the doctor’s findings on his physical examination of Mr. Nagel and his opinion that Mr. Nagel “was capable of operating a motor vehicle safely and responsibly.” The clerk’s report merely observed that Mr. Nagel needed assistance walking and had “barely” passed the vision test. Neither of these observations, alone or in combination, would entitle a reasonable person to believe that Mr. Nagel was incompetent to drive. In addition, the clerk’s report did not contain a statement as required by section 302.291, that the clerk reasonably and in good faith believed that Mr. Nagel could not safely operate a motor vehicle. Moreover, the signed Physician’s Statement specifically indicated that Mr. Na-gel’s vision was 20/20 as corrected with glasses, that he had no other physical or mental conditions that would impair his driving, and that he was capable of operating a motor vehicle safely and responsibly. In light of this information that was available to her, the Director abused her discretion in requiring Mr. Nagel to take a driving skills test.

The judgment of the trial court is affirmed.

LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ, concur.

      . The trial court also found that the clerk was not one of the persons listed in section 302.291.3 who could make a report. We do not need to reach this question because, even if a clerk is a qualified reporter under the statute, the report fails to provide an adequate basis for good cause.


author: PHILLIP R. GARRISON, Judge.

text:
    Karen L. (Besaw) RYAN, Claimant-Appellant, v. MOTOR TECHNOLOGIES GROUP, Employer-Respondent, and Division of Employment Security, Respondent.
    No. 26936.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 30, 2005.

      Mark E. Rector, Allen & Rector, Lebanon, for appellant.
    Larry R. Ruhmann, St. Louis, for respondent.
   PHILLIP R. GARRISON, Judge.

Karen L. (Besaw) Ryan, (“Claimant”) appeals a decision of the Labor and Industrial Relations Commission (“Commission”) denying her claim for unemployment compensation benefits under Section 288.050. We affirm.

Claimant worked for Motor Technologies Group (“Employer”) for approximately eight months performing fabrication work. The dispute began on August 17, 2004, when Claimant received four notices of disciplinary action, which were dated August 16, 2004. The first notice stated that on August 13, 2004, at approximately 6:30 p.m., Claimant left her work station and was getting candy and soda in the cafeteria. The second notice said that Claimant, on August 13, 2004, left her work station without notifying her supervisor and went to the front office to inquire about paychecks. The third notice recited that on August 13, 2004, Claimant was spreading rumors, upsetting other employees, and disrupting work. The fourth notice stated that Claimant was “going from one employee to another on working hours upsetting them telling them about paychecks,” on August 13, 2004. All four notices were signed by Larry Bean (“Bean”), Claimant’s supervisor.

When Bean presented Claimant with the four notices on August 17, 2004, she became upset because she believed that they were in retaliation for a previous complaint she had made to the human resource manager about William Brosnick (“Brosnick”), Bean’s supervisor. Claimant walked off the job with the belief that, according to the Employer’s policy manual, an employee is discharged after being written up three times.

Claimant filed a claim for unemployment compensation benefits with the Missouri Division of Employment Security, which was denied on September 24, 2004, because the Deputy determined that she left her employment voluntarily without good cause attributable to her work or employer. On September 29, 2004, she appealed to the Appeals Tribunal, which, after a hearing via telephone conference on October 19, 2004, reversed the Deputy’s ruling, stating that “[Claimant is not disqualified for benefits because of her voluntary separation from work on August 17, 2004.”

On November 3, 2004, Employer filed an application for review with the Commission. The Commission issued its findings of fact and conclusions of law reversing the decision of the Appeals Tribunal, finding that Claimant was disqualified for benefits until she had earned wages for insured work after August 17, 2004, equal to ten times her weekly benefit amount because she “left work voluntarily on that date without good cause attributable to her work or employer.” Claimant appeals this decision.

In her sole point, Claimant argues that the Commission erred in denying her unemployment benefits. She argues that she left work voluntarily, for good cause in that she endured a course of abusive and retaliatory conduct by her supervisor during the term of her employment, and acted with good faith to prevent the termination of that employment. We disagree.

Claimant’s assertion is based on the sufficiency of the evidence, and as such the scope of our review under Article V, § 18, of the Missouri Constitution and Section 288.210 are limited to whether the Commission’s decision was “supported by competent and substantial evidence upon the whole record.” Coyne v. Cargill, Inc., 167 S.W.3d 800, 801 (Mo.App. S.D.2006) (quoting CNW Foods, Inc. v. Davidson, 141 S.W.3d 100, 102 (Mo.App. S.D.2004)). Section 288.210 states, in pertinent part, that

[u]pon appeal no additional evidence shall be heard. The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law.

In reviewing the Commission’s order for competent and substantial evidence, we must defer to the Commission’s determinations as to the credibility of witnesses and the resolution of conflicting evidence. Taylor v. Div. of Employment Sec., 153 S.W.3d 878, 881 (Mo.App. S.D.2005); CNW Foods, Inc., 141 S.W.3d at 102-03; Shelby v. Hayward Baker, Inc., 128 S.W.3d 164, 166 (Mo.App. S.D.2004). However, we are not bound by the Commission’s conclusions of law or its application of law to facts and we review questions of law independently. Taylor, 153 S.W.3d at 881; see also Shelby, 128 S.W.3d at 165-66.

Under Section 288.050.1(1) a claimant is disqualified for unemployment compensation if “[t]he claimant has left work voluntarily without good cause attributable to such work or to the claimant’s employer.” Good cause is limited to those situations in which Claimant has resigned her position as a result of “external pressures so compelling that a reasonably prudent person would be justified in giving up employment.” Citizens Bank of Shelbyville v. Indus. Comm’n, 428 S.W.2d 895, 899 (Mo.App.St.L.Dist.1968). Good cause includes an element of good faith. Clark v. Labor and Indus. Relations Comm’n, 875 S.W.2d 624, 627 (Mo.App. W.D.1994). “A worker has good cause to terminate employment voluntarily when that conduct conforms to what an average person, who acts with reasonableness and in good faith, would do.” Id. In order to establish good faith, a claimant must prove that an effort was made to “resolve the dispute before resorting to the drastic remedy of quitting [her] job.” Id. (quoting Tin Man Enter., Inc. v. Labor & Indus. Relations Comm’n, 866 S.W.2d 147, 149 (Mo.App. E.D.1993)). Whether an employee has voluntarily left her employment with good cause is a question of law. Springfield Grocer Co., Inc. v. Sartin, 49 S.W.3d 817, 820 (Mo.App. S.D.2001).

In this case the evidence clearly supports the Commission’s decision. Claimant argues that she left work for good cause on August 17, 2004, after receiving four notices of disciplinary action. Claimant concedes that the events surrounding the August 16, 2004, notices, including Brosnick’s use of vulgar language toward her on August 13, 2004, do not alone constitute good cause. Rather, she asserts that the verbal abuse she allegedly suffered by Brosnick prior to August 13, 2004, in conjunction with the events surrounding the notices, gave her good cause to sever ties with Employer. However, Claimant has not provided any specific evidence of verbal abuse prior to August 13, 2004, which would support such a finding.

The record reveals that prior to the events of August 13, 2004,. Claimant lodged “two or three” complaints against Brosnick with the human resources manager the first of which occurred sometime in mid-December 2003 in which she claimed that Brosnick had “cussed [her] out.” In addition Claimant testified that she felt as though Brosnick was always “watching” and “picking on her.” The evidence is non-specific about these events but apparently constitutes the “abusive and retaliatory behavior” by Brosnick that she argues she had to endure “during most of her employment with [Employer].” There simply is not enough evidence in the record for us to find that these events which occurred prior to August 13, 2004, in combination with the events of August 13, 2004, constituted good cause for Claimant to quit her job.

The Claimant has “the burden of proving that [her] voluntary termination resulted from good cause attributable to [her] work or employer.” Winco Mfg., Inc. v. Partee, 141 S.W.3d 34, 38 (Mo.App. E.D.2004). Claimant correctly cites Springfield Grocer Co., Inc., 49 S.W.3d at 821, for the proposition that an employee should not have to endure verbal abuse from her employer and that she is not disqualified from unemployment benefits for quitting under those circumstances. However, in that case witnesses for the employer conceded that claimant had endured verbal abuse by her supervisor. Id. at 819. There was also substantial evidence in the record that the abuse occurred over a period of time. Id. at 818-820. The Commission found that “claimant quit her job because her supervisor was constantly using vulgar, profane, and insulting language towards her.” Id. at 821.

This case is distinct because here the evidence simply reveals that Claimant felt that Brosnick was “watching her ... [and] she felt kind of like he was picking on her.” As stated above, there was some evidence that on two occasions Brosnick had also used “vulgar” language toward Claimant. However, based upon the record before us we cannot say that Claimant has met her burden of showing good cause. Other than the circumstances surrounding the four notices of August 16, 2004, there is simply a lack of detail as to specific incidents. The record does not reveal anything that took place between Brosnick and Claimant prior to August 13, 2004, which would rise to the level that would “motivate the average able-bodied and qualified worker in a similar situation to terminate [her] employment.” Winco Mfg., Inc., 141 S.W.3d at 38 (quoting Hessler v. Labor & Indus. Relations Comm’n, 851 S.W.2d 516, 518 (Mo. banc 1993)).

Claimant also argues that verbal abuse in conjunction with false accusations of wrongdoing can constitute good cause. Even assuming that is true, in this case she did not act in good faith to remedy the conflict that arose between her and Bros-nick on August 13, 2004. As stated above, she simply walked off the job. Therefore, based upon the whole record, we cannot say that the Commission’s decision to deny Claimant unemployment benefits was erroneous. Accordingly, the Commission’s judgment is affirmed.

SHRUM, P.J., and BARNEY, J., concur.

      . All references to statutes are to RSMo (2004) unless otherwise indicated.


author: SHARON G. LEE, J.,

text:
    Richard D. VATT, et al. v. A.L. JAMES d/b/a A.L. James Construction Company.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Jan. 27, 2005 Session.
    Feb. 28, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 17, 2005.

      John P. Konvalinka and Mathew D. Brownfield, Chattanooga, Tennessee, for the appellants, Richard D. Vatt and Sharon Vatt.
    Steven M. Jacoway, Chattanooga, Tennessee, for the appellee, A.L. James d/b/a A.L. James Construction Company.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR. and D. MICHAEL SWINEY, JJ., joined.

This case involves the alleged breach of a real estate sales contract. The plaintiffs argue that the defendant home builder is in breach of contract because he refused to sell them the house contracted for unless, in addition to the price stated in the contract, they paid him for costs attributed to changes in construction. None of these changes were implemented pursuant to written change orders as required under the contract. The builder countersued arguing that the changes for which he sought payment were agreed to orally after the contract was executed, that the written change order requirement of the contract was waived, and that the plaintiffs breached the contract by refusing to pay him the original contract price, plus the amount attributed to the changes. The trial court entered judgment in favor of the defendant. We affirm in part, reverse in part and remand.

On December 14, 1999, the appellants, Richard and Sharon Vatt, and the appel-lee, A.L. James d/b/a A.L. James Construction Company (hereinafter “Mr. James”) entered into a real estate sales agreement (hereinafter “contract”). Pursuant to this contract, Mr. James agreed to build a house for the Vatts in the Cummings Cove development in Chattanooga, Tennessee for which they agreed to pay $360,000.00 upon completion of construction. The contract provides that if the cost of the purchaser’s selections differ from certain allowances stated in the contract “the net differences will be settled prior to installation or at closing according to a written agreement between the Purchasers and the Builder.” The contract further provides that “[i]n addition to changes in allowances, any change to the price and specifications in this contract must be agreed to in writing by all parties before the change is implemented.”

Construction of the house began in January of 2000 and concluded in August of 2000. Closing of the contract to purchase was scheduled for August 17, 2000; however, prior to closing, disputes arose between the parties regarding whether, in addition to the $360,000.00 purchase price set forth in the contract, the Vatts were obligated to pay for time and money Mr. James assert-edly expended in implementing certain changes in construction which were allegedly at variance with the contract and for which there were no written change orders. With the apparent exceptions of costs related to brickwork, cabinetry and a whirlpool tub, the Vatts refused to pay the additional expenses asserted by Mr. James, contending that such were either contemplated under the contract and covered under the contract price of $360,000.00 or were not agreed to and were not implemented pursuant to written change orders as required by the contract. Ultimately, the parties were unable to reconcile their differences, and the closing did not take place.

When closing of the sale to the Vatts failed, the house was re-listed for sale and, in early September of 2000, an offer to purchase the house for $399,000.00 was received. However, this sale was not completed, and the house was subsequently sold to undisclosed parties for $350,000.00 in January of 2001.

On February 13, 2001, the Vatts filed a complaint against Mr. James in the Circuit Court for Hamilton County wherein they assert that he materially breached the contract based upon the allegations that construction of the house was not completed within the time allotted under the contract and upon the further allegation that Mr. James would not close the sale unless the Vatts paid, in addition to the contract price of $360,000.00, costs which he attributes to changes in the originally agreed upon prices and specifications. The complaint seeks reimbursement of earnest money in the amount of $5,000.00, $2,565.00 in rental and storage expenses allegedly incurred as a result of the breach, and $2,973.54 for various items which were purchased by the Vatts and installed in the house at their request. The complaint also requests that the Vatts be awarded reasonable attorney’s fees and expenses.

On March 26, 2001, Mr. James filed his answer and counter-complaint denying that the house was not completed on time and averring that the changes at issue were implemented at the request of the Vatts during the course of construction. The counter-complaint further avers that the Vatts wrongfully refused to pay for these changes and refused to purchase the house and that, pursuant to Mr. James’ best efforts, the house was subsequently sold for $350,00.00. Mr. James asserts that, as a result of their breach .of the contract, the Vatts are liable for damages, the earnest money deposit, lost profit, and additional interest and costs associated with the loan utilized by him to construct the house. The counter-complaint also requests attorney’s fees and expenses.

By order of the trial court, the ease was referred to the clerk and master of the Circuit Court before whom the parties presented evidence and argument. On October 13, 2003, the clerk and master entered its report to the trial court which includes the following findings and conclusions:

1.3 After execution of the Agreement and diming the construction stage, the Vatts orally requested that James make several changes to the original plans. Per their requests, James complied and made the changes. Specifically, a more expensive brick was used; a more expensive pedestal sink in the powder room was installed; the dirt foundation for the pool was graded and then raised in elevation; the retainer wall was enlarged; additional carpentry work was done in the basement; insulation, electrical and HVAC services were added to the basement; an attic fan was installed; electrical wiring was installed in the pool area; a more expensive whirlpool tub was installed; a wooden deck was built; and additional plumbing for an icemaker was installed in the laundry room. James charged $16,432.23 for these changes that included a $6,500.00 builder’s discount.
1.10 The parties by their conduct waived the Agreement’s requirements that changes in price, specifications, or allowances be done in writing. Throughout the course of construction, the Vatts orally requested changes, and James complied with such changes, even though none were reduced to writing signed by both parties. The Vatts knew James was doing extra work. While there may have been some disagreement about price, the Vatts accepted the benefits of the work without hesitation. In fact, the Vatts “approved” most of the extra work, although they later insisted they did so believing they would not be called upon to pay for such work.
1.11 Because the Vatts essentially “approved” the extra work, they breached the Agreement refusing to go forward with the closing on 17 August 2000, and pay the additional amount requested by James that reflected the original contract price plus an amount to cover extra work.

The clerk and master determined that the fair market value of the house at the time of breach was $379,475.79. Based upon the finding that the Vatts breached the contract, the clerk and master concluded that Mr. James should be awarded the $19,475.79 difference between the contract price and the amount determined to be market value. It was further determined that Mr. James should receive consequential damages for utility charges paid on the house from the time of breach until the house sold and his reasonable attorney’s fees. The report provides that the Vatts should not receive a credit against damages for the earnest money being held in escrow and that this money should be released to Mr. James. The report also denies the Vatts a credit for the $2,973.54 paid by the Vatts for items installed in the house.

Both Mr. James and the Vatts filed objections to the report of the clerk and master. Upon review of the report, the trial court entered its judgment adopting the report in its entirety with the exceptions that the Vatts should receive a credit for the $2,973.54 paid by them for installed items and that damages for breach of the contract should be “the difference between the fair market value of the house in August of 2000, which amount the Court finds to be $379,475.79 and the subsequent sale of the house in January 2001 for $350,000.00, which net amount equals is [sic] $29,475.79.” The judgment awards Mr. James attorney’s fees and expenses in the amount of $8,817.70 and provides that the $5,000.00 earnest money to be released to him be credited against the total judgment amount. Both the Vatts and Mr. James appeal this judgment.

Although various issues are presented in this appeal, the sole issue we address is whether either the Vatts or Mr. James was in material breach of contract. Other issues raised are pretermitted by our decision with respect to this single issue.

In a non-jury case such as this one we review the record de novo with a presumption of correctness as to the trial court’s determination of facts, and we must honor those findings unless there is evidence which preponderates to the contrary. Tenn. R.App. P. 13(d); Union Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to the trial court’s factual findings. Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn.1999). The trial court’s conclusions of law are accorded no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

The clerk and master’s report adopted by the trial court concludes that the Vatts were in breach of contract because they refused to go forward with the closing and pay the additional amounts demanded by Mr. James even though they had previously “approved” these amounts. For the reasons stated hereinafter, we do not agree with this conclusion.

As we have noted, the contract in this case contains separate provisions governing both changes in allowances and changes in price and specifications. As to changes in allowances, the contract provides that, if the cost of certain specified allowances is different from the amounts set forth in the contract, “the net differences will be settled prior to installation or at closing according to a written agreement between the Purchasers and the Builder.” The contract further provides that “[i]n addition to changes in allowances, any change to the price and specifications in this contract must be agreed to in writing by all parties before the change is implemented.”

In Moore Constr. Co., Inc. v. Clarksville Dept. of Elec., 707 S.W.2d 1 (Tenn.Ct.App.1985) we acknowledged the benefit of including a written change order requirement in a contract and noted that such a provision is valid and binding under Tennessee law. We also recognized that, like other contractual provisions, a provision which requires written change orders can be waived by the parties:

The waiver of a written change order requirement by an owner is not always required to be in writing but may be the result of the parties’ conduct on the job. Thus, it is not uncommon for courts to find that an owner has waived a written notice requirement in cases where extra work has been ordered verbally by the owner or the extra work has been performed with the owner’s knowledge and without its objection.
The course of dealing between the parties can also amount to a waiver where the conduct of the parties makes it clear that they did not intend to rely strictly upon a contract’s written notice requirement and that adherence to such a requirement would serve no useful purpose.... Once a party has waived the requirement with regard to a particular matter, it cannot revoke its waiver, in whole or in part at its convenience.

Moore Constr. Co., Inc., 707 S.W.2d at 13.

The clerk and master’s report indicates that the determination that the written change order provision of the contract was waived was based upon a finding that the Vatts orally, and without written change orders, requested that Mr. James make ten specific changes to the original plans. Mr. James asserts that these changes represent additional costs of $22,432.23, and that, after application of a builder’s discount of $6,500.00, there remains a balance of $16,432.23 due and owing. In its memorandum opinion, the trial court adopts the findings of the report in this regard. Our analysis of the ten changes set forth in the report is as follows:

1) Brick — The clerk and master’s report states “a more expensive brick was used.” The contract includes a specific allowance for brick, to be included in the sales price of $360,000.00. The contract does not require that changes in allowances must be approved before the change is implemented or incurred but, rather, provides that, with respect to allowances, “net differences will be settled prior to installation or at closing according to a written agreement ” between the parties (emphasis added). As closing never actually occurred in this case, it remains to be seen whether a written agreement would have been entered into at that time regarding the change in brick allowance. However, Mr. Vatt testifies that he never disputed that he would have to pay for the $2,500.00 cost presented for the brick overage. A letter from Mr. Vatt’s attorney to Mr. James dated July 6, 2000, indicates that Mr. Vatt excepts the brick from his dispute of the additional monies requested by Mr. James, and acknowledges that he is willing to adjust the $360,000.00 contract price with respect to the “brickwork,” noting that the contract makes specific allowance for the brick. In his testimony, Mr. James also admits that the Vatts never told him they would not pay for the overage on the brick allowance. We find nothing in the record which indicates that the Vatts breached the contract by refusing to pay for the requested overage on the brick.

2) Pedestal sink — The clerk and master’s report states “a more expensive pedestal sink in the powder room was installed.” Mr. Vatt testifies that the contract called for installation of a pedestal sink, but sets forth no dollar allowance for such. He further testifies that neither he nor Mrs. Vatt requested an “upgrade” with respect to this item. Mr. James testifies that, after he “installed the sink that we normally put in,” Ms. Vatt didn’t want that sink and picked out another one which he then installed. Mr. James testifies that he told Ms. Vatt that “it would be an extra charge” and she did not respond, although she did not tell him not to install the sink. At closing, Mr. James assigned a cost of $200.00 to the pedestal sink installed at Ms. Vatt’s request. We find no evidence which shows that Mr. James advised Ms. Vatt that the chosen sink would result in an additional charge of $200.00.

3) Ground preparation for pool — The clerk and master’s report states “the dirt foundation for the pool was graded and then raised in elevation.” Mr. James assigned a cost of $3,239.00 for this work. Mr. Vatt testifies that, although there is nothing in the contract or plans that so provides, before the contract was signed he and Mr. James agreed that Mr. James would perform this work as part of the contract. Mr. James testifies as follows regarding the site preparation work that was done for the pool:

A. All we were supposed to do as far as the site prep was have it graded so they could come in and do their pool.
The Vatts kept pressuring me saying the pool man has to come in at a certain date. I said we would have it graded for him and be ready.
Apparently, he came and looked and said it has to be built up so they could put the pool in.
Q. Now, did you tell them you would do that?
A. Well, at some point I told them that it wasn’t my deal, that the pool man should do all this work since he was being contracted out to do the pool, but he told them that I should do the dirt work since I was the contractor.
Q. Did you agree to do the work, dirt work?
A. Yeah. We did it. We had to move forward with the project.
Q. Did you tell them it would cost extra?
A. At some point we did, yes.
Q. When you say at some point, do you know when?
A. After they kept pressuring me and we started bringing in the dirt to get it done, then we worked up a price. I didn’t know what it would cost until we got started.

It appears from this testimony that Mr. James does not disagree that he was at least responsible for the grading work, although he included the grading as part of the site preparation work for which he sought additional payment at closing. While Mr. James states at “some point” the Vatts were advised that it would be extra and “we worked up a price,” we find no evidence in the record showing that the Vatts agreed to pay monies over the contract price for either the grading or foundation raising. Even assuming that Mr. James was not obligated to raise the foundation under the original contract and that this was additional work he subsequently consented to, there is no evidence that the Vatts ever agreed to pay the $3,239.00 which Mr. James specifies for the work of which this was a part.

4) Retainer wall — The clerk and master’s report states “the retainer wall was enlarged.” Mr. James’ lists this work at a cost of $3,089.00. Mr. Vatt testifies that, although not set forth in the contract, before the contract was executed Mr. James indicated that the retainer wall would be needed, and Mr. Vatt contends that the cost was understood by him to be included in the contract price of $360,000.00. Mr. James testifies that the retainer wall “regarding the pool area” was not discussed pre-contract because at that point he didn’t know that it would be necessary to bring in dirt to raise the pool foundation and that a retainer wall would be required. Mr. James testifies that he told the Vatts that there would be an extra charge for the retainer wall and received no response. We find no evidence that the Vatts were advised that the cost of the retainer wall would be $3,089.00 or that they agreed to that amount.

5) Work in basement — The clerk and master’s report states “additional carpentry work was done in basement” and “insulation, electrical and HVAC services were added to the basement.” At closing, Mr. James represented the cost of this work to be $7,820.00. Mr. Vatt testifies that the contractual plans and specifications make no reference to finishing the basement. He also testifies that there was a discussion that, in order to lower the price of construction to $360,000.00, the basement would be left unfinished except for duct work, finishing a downstairs bathroom and “[r]ough-in to include the electrical.” Mr. Vatt further testifies that when he discovered that Mr. James intended to charge him extra for rough-in work in the basement he told Mr. James to stop the work. Mr. James testifies as follows with respect to the basement work:

Q. These items here on this exhibit that deals with carpentry work basement and the electrical work rough-in, insulation, HVAC rough-in and labor, can you tell the Court what discussions you had with the Vatts about this?
A. Basically, at some point I assumed that’s what they wanted me to go ahead and do, rough all this in, and they were going to finish the sheetrock, the painting, floor tile and whatever it was.
Q. When you said assumed, did you have any conversations?
A. We had several, yes, sir.
Q. Okay.
A. About the downstairs, yes.
Q. Okay. Were there discussions about cost?
A. No.

There was no discussion and, therefore, there was no agreement between the parties that there would be an additional charge for this work in the basement. We further note the following cross-examination testimony of Mr. James’ witness, Brian Kelly, managing broker for sales of property in the Cummings Cove development. This testimony confirms Mr. Vatt’s testimony that he requested that the work stop once he realized that he would incur additional charges:

A. Dr. Vatt told me in front of his house, he said — he asked Mr. James if he could finish the basement. Mr. James said sure we can finish the basement and which that work did start.
Now, once they knew that there was going to be dollars associated with it, your question is did he ask me to tell him to stop?
Q. Yes.
A. Could be and I probably told Mr. James, yeah, if he’s not going to pay for it, there is no reason to do the work.
Q. That’s part of the miscommunica-tions in connection with this project, wasn’t it? Dr. Vatt asked Mr. James if he could finish the basement and he said sure and proceeded to do it and Dr. Vatt didn’t think he was going to be charged for it and found out later he was going to be charged and when he found out he was going to be charged he said stop; isn’t that what happened?
A. Basically in a nutshell, yes, and never agreeing up front what a price would be for a certain thing.

We find no evidence that the parties agreed to the $7,820.00 price set forth by Mr. James for this work in the basement. We further find that Mr. Vatt requested that the work discontinue when he discovered that there would be a charge.

6) Attic fan — The clerk and master’s report states “an attic fan was installed.” Mr. James assigns a cost of $250.00 for this item. Mr. Vatt testifies that he never asked Mr. James to install an attic fan and that Mr. James never told him there would be an extra charge for the attic fan. Mr. James testifies that during construction Mr. Vatt told him that he wanted the fan. However, Mr. James testifies that the cost of the fan was not discussed nor do we find evidence showing that at any time the Vatts agreed to the installation of the attic fan at the additional cost of $250.00.

7) Electrical wiring in pool area — The clerk and master’s report states “electrical wiring was installed in the pool area.” Mr. James asserted an additional cost of $225.00 for this work. Mr. Vatt admits in his testimony that electrical preparation was necessary for the pool area and maintains that, although not in the contract, this work was discussed and agreed to by Mr. James before the contract was entered into. We are directed to no evidence in the record which specifically rebuts this testimony and find no evidence otherwise which shows that the Vatts at any time agreed to pay an additional $225.00 for the installation of electrical wiring in the pool area.

8)Whirlpool tub — The clerk and master’s report states “a more expensive whirlpool tub was installed.” Mr. James presents an additional cost of $1,383.75 for this item. The whirlpool tub is not mentioned in the contract. However, Mr. Vatt testifies that, prior to the execution of the contract, he presented Mr. James with a brochure regarding the whirlpool tub and that Mr. James “stated that should be no problem because his suppliers gave him a great price.” Mr. Vatt avers that the specific price of the whirlpool was not discussed at that time. Mr. James does not dispute that he and the Vatts discussed a whirlpool tub prior to execution of the contract, but asserts that “all they wanted was a six foot-whirlpool tub and that’s something we put in most of our homes at this price range.” Subsequently, at the request of the Vatts, Mr. James installed a tub chosen by Ms. Vatt rather than the tub he had intended to install. Mr. James testifies that he advised the Vatts that there would be an extra charge for the tub they had chosen, but that he “really didn’t get a true answer.” We also note that, under cross examination, Mr. Vatt confirms that, prior to closing, he offered to settle the dispute regarding the whirlpool by paying the $1,383.75 demanded by Mr. James:

Q. And this whirlpool tub, $1,383.75, my understanding is that you agreed that that amount you would agree to pay.
A. As part of an offer of settlement.
Q. Okay. So it’s just if you close for 360, I’ll pay for the whirlpool tub and the brick overage, but that’s just an offer of settlement. If you don’t, then—
A. The presentation in the letter that you referenced discussed paying for that as an effort to negotiate some type of means for us to be able to close on the home.
The contract did not offer an allowance. We were not presented an allowance. The whirlpool was discussed with Mr. James prior to him submitting the bid.

We find no evidence that the Vatts contracted to pay an additional $1,383.75 for the installation of the tub. Furthermore, the Vatts did not refuse to close based upon the dispute regarding the charges sought for the whirlpool tub installation, but rather offered to pay such charges as demanded in order that closing might proceed as scheduled.

9) Wooden deck — The clerk and master’s report states that “a wooden deck was built.” Mr. James sets forth an amount of $4,150.00 for this item. Apparently the parties agree that the original contract called for a concrete patio rather than a deck; however, it subsequently became apparent that construction of the concrete patio as envisioned by the Vatts was no longer feasible, and the parties entered into discussions with respect to the construction of a deck instead. Mr. James proposed that he build a wooden deck. Mr. Vatt testifies that he was willing to consider agreeing to the construction of a synthetic deck, but never received information from Mr. James regarding what the deck would cost using synthetic materials. Mr. James testifies that at some point he proceeded to build the wooden deck in order to complete the house by the scheduled closing date. Upon being notified of Mr. James intent to proceed, the Vatts wrote him a letter dated July 10, 2000, which states in part as follows:

Our desire for a concrete back patio has not changed. It was the Builder who suggested a wooden deck. At the time you suggested a wooden deck, you did not mention any additional charge. We restated our expectation was a concrete patio. We also said we might be willing to consider a deck but did not like pressure treated wood surfaces. You mentioned a synthetic decking material was available and stated you would provide us with a sample. We have waited two months for the Builder to supply us with a sample of the synthetic material, which has not yet been provided despite multiple requests.
The original expectation of a back patio made of an appropriate concrete surface has been discussed with you on multiple occasions. We do not agree to the terms of the addendum related to the substitution of a wooden deck. An appropriate back patio is required by the building code. It is unknown what plans you have submitted to the architecture review committee, but such committee approval is required. Therefore, should the Builder proceed with the proposed deck addendum, the Builder will remain responsible for any and all expenses (emphasis added).

We find no evidence that the Vatts agreed to pay an additional $4,150.00 for construction of the wooden deck. On the contrary, the Vatts specifically advised Mr. James that if he proceeded to construct the wooden deck it would be at his expense and not theirs.

10) Plumbing for ice maker — The clerk and masters report states that there was “additional plumbing for an ice maker.” Mr. James places the cost of this item at $75.00. Mr. Vatt testifies that the plumbing for the ice maker was discussed and agreed to before the contract was signed and was included in the contract price. Mr. James testifies that the additional plumbing for the ice maker was requested by Mrs. Vatt after the contract was executed; however, Mr. James admits that the parties did not discuss cost, and we find no evidence that the Vatts agreed to pay an additional $75.00 for this item.

In Jane Doe, et al. v. HCA Health Services of Tennessee, Inc., d/b/a HCA Donelson Hospital, 46 S.W.3d 191, 196 (Tenn.2001), the Tennessee Supreme Court discussed elements essential to the formation of an enforceable contract as follows:

A contract “ ‘must result from a meeting of the minds of the parties in mutual assent to the terms, must be based upon a sufficient consideration, free from fraud or undue influence, not against public policy and sufficiently definite to be enforced.’ ” Higgins v. Oil, Chem., and Atomic Workers Int’l Union, Local # 3-677, 811 S.W.2d 875, 879 (Tenn.1991) (quoting Johnson v. Central Nat’l Ins. Co. of Omaha, 210 Tenn. 24, 34-35, 356 S.W.2d 277, 281 (Tenn.1962) (citations omitted)). Indefiniteness regarding an essential element of a contract “may prevent the creation of an enforceable contract.” Jamestowne On Signal, Inc. v. First Fed. Sav. & Loan Ass’n, 807 S.W.2d 559, 565 (Tenn.Ct.App.1990) (citing Hansen v. Snell, 11 Utah 2d 64, 354 P.2d 1070 (1960)). A contract “ ‘must be of sufficient explicitness so that a court can perceive what are the respective obligations of the parties.’ ” Higgins, 811 S.W.2d at 880 (quoting Soar v. National Football League Players’ Ass’n, 550 F.2d 1287, 1290 (1st Cir.1977); see also Restatement (Second) of Contracts § 33(2) (1981) (“The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.”)
Two of the leading treatises on contract law provide additional authority concerning the requirement of definite contractual terms. “Certainty with respect to promises does not have to be apparent from the promise itself, so long as the promise contains a reference to some document, transaction or other extrinsic facts from which its meaning may be made clear.” 1 Richard A. Lord, Williston on Contracts, § 4:27, at 593 (4th ed.1990). In addition, as stated in 1 Joseph M. Perillo, Corbin on Contracts, § 4.3, at 567-68 (Rev. ed.1993):
If the parties provide a practicable method for determining [the] price or compensation there is no such indefiniteness or uncertainty as will prevent the agreement from being an enforceable contract. The same is true if they agree upon payment of a “reasonable” price or compensation. There are cases, however, in which it is clear that the parties have not expressly or implicitly agreed upon a “reasonable price,” and also have not prescribed a practicable method of determination. Where this is true, the agreement is too indefinite and uncertain for enforcement.

Based upon our careful analysis of the evidence with respect to each of the matters for which Mr. James seeks additional payment, we are compelled to the conclusion that there was not “a meeting of the minds of the parties in mutual assent to the terms” at issue. Our reasons for this conclusion, as set forth above, are varied. However, with respect to all of the items listed, we find that the parties “have not expressly or implicitly agreed upon a reasonable price nor have they agreed upon a practicable method of determination of price” and, accordingly we hold that any agreement Mr. James alleges the parties had that they would pay for these charges over and above the original contract price of $360,000.00 is unenforceable. We further hold that by refusing to sell the Vatts the house unless they pay the asserted additional charges Mr. James materially breached the contract which provides that he sell them the house for $360,000.00. Accordingly, the Vatts are entitled to a refund of the $5,000.00 earnest money deposit which currently remains in escrow. The Vatts are further awarded reasonable attorney’s fees and court costs pursuant to that provision of the contract which states:

In the event of the default of either party hereto, and litigation ensues, a reasonable attorney’s fee shall be included in the damages of the non-defaulting party, recoverable together with court costs.

The Vatts’ request for rental and storage expenses in the amount of $2,565.00, as set forth in their original complaint, is denied because we do not find that it has been shown that such damages were within the reasonable contemplation of all the parties at the time the contract was entered into. Turner v. Benson, 672 S.W.2d 752, 755 (Tenn.1984).

For the reasons stated herein the judgment of the trial court is affirmed to the extent that it decrees that the Vatts be reimbursed $2,973.54 for items purchased by them that were installed in the house. Otherwise, the judgment of the trial court is reversed and the cause is remanded for further action consistent with this opinion. Costs of appeal are adjudged against A.L. James d/b/a A.L. James Construction Company.