text:
    CARGILL, INC., Plaintiff-Appellant, v. Charles POEPPELMEYER a/k/a Bill Poeppelmeyer a/k/a Chuck Poeppelmeyer d/b/a B&B Farms, Defendant-Respondent.
    No. SD 30267.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 21, 2010.
    Daniel P. Finch, Jason C. Comstock, Cape Girardeau, for Appellant.
    Russell D. Oliver, Bloomfield, for Respondent.
   NANCY STEFFEN RAHMEYER, Presiding Judge.

Cargill, Inc. (“Appellant”) appeals the trial court’s denial of its motion to confirm an arbitration award against Charles Po-eppelmeyer (“Respondent”) pursuant to the terms of a futures contract. We reverse the trial court’s decision because it was not based on substantial evidence in that no evidence was taken.

Before the trial court were simply allegations and admissions from the pleadings and argument of counsel. Likewise, we only have the same allegations and pleadings to review. As such, we set forth the allegations as well as we can. In February, 2006, Appellant entered into a contract to purchase from Respondent 15,000 bushels of U.S. soft red winter wheat for a price of $4.18 per bushel, to be delivered in June or July of 2007. The contract contained a binding arbitration clause requiring any disputes arising out of the contract to be arbitrated by the National Grain and Feed Association (“NGFA”). The arbitration clause, in full, reads:

Unless otherwise provided herein, this Contract, and all other grain contracts by and between Buyer and Seller, shall be subject to the Trade Rules of the National Grain and Feed Association (NGFA), which Trade Rules are incorporated herein by reference. The parties agree that the sole forum for resolution of all disagreements or disputes between the parties arising under any grain contract between Buyer and Seller or relating to the formation of any grain contract between Buyer and Seller shall be arbitration proceedings before NGFA pursuant to NGFA Arbitration Rules. The decision and award determined by such arbitration shall be final and binding upon both parties and judgment upon the award may be entered in any court having jurisdiction thereof. Copies of the NGFA Trade and Arbitration Rules are available from Buyer upon request and are available at www.ngfa. org. In addition to any damages otherwise provided by law, Buyer shall be entitled to recovery of its attorney’s fees and costs.

Appellant claimed that Respondent failed to deliver the wheat, leading Appellant to seek redress through arbitration proceedings before the NGFA on October 16, 2007.

Consistent with its rules, the NGFA submitted an arbitration services contract to the parties. Section 5(e) of the NGFA’s arbitration rules provides the following: “Where a party fails to pay the arbitration service fee and/or fails to execute the contract for arbitration, the National Secretary may without further submissions by the parties enter a default judgment or such other relief as the National Secretary deems appropriate.” Respondent never executed the arbitration contract the NGFA sent him following his failure to deliver the 15,000 bushels of wheat. The NGFA subsequently entered a default judgment award against Respondent for $38,662.50, presumably the difference between the contract price and the market price of the wheat when delivery was due.

Appellant then filed a motion to confirm the arbitration award in the trial court. In his answer to the motion, Respondent claimed the NGFA’s arbitration award was invalid in that: (1) the arbitrators exceeded their powers by violating an automatic Chapter 12 bankruptcy stay; (2) the arbitrators refused to postpone the hearing upon a sufficient cause being shown — the existence of a bankruptcy stay; and (3) the arbitration agreement was an adhesion contract. Following a hearing and rehearing in which no evidence was presented, the trial court denied Appellant’s motion to confirm the arbitration award.

This Court will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or the court erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

A motion to confirm an arbitration award arising from a contract affecting commerce that includes a written arbitration provision is governed substantively by the Federal Arbitration Act (“FAA”) and procedurally by sections 435.400 and 435.425 of the Missouri Uniform Arbitration Act (“MUAA”). 9 U.S.C. section 2; Parks v. MBNA America Bank, 204 S.W.3d 305, 310 (Mo.App. W.D.2006) (citing Edward D. Jones & Co. v. Schwartz, 969 S.W.2d 788, 793 (Mo.App. W.D.1998)). This is because apparently the present case involves a dispute between a Delaware corporation and a resident of Missouri over the sale of grain and, as such, clearly affects interstate commerce. Wickard v. Filburn, 317 U.S. 111, 128-29, 63 S.Ct. 82, 87 L.Ed. 122 (1942); Woermann Constr. Co. v. Sw. Bell Tel. Co., 846 S.W.2d 790, 792 (Mo.App. E.D.1993) (“[C]ontracts to be performed within one state have been found to involve commerce when the contracting parties are from different states[.]”).

The sole requirement of a party moving for confirmation of an arbitration award is that he applies for it in the proper court. 9 U.S.C. section 9. Upon application to confirm an arbitration award, the court must confirm the award unless the opposing party moves to vacate or modify the award. Id. In vacating or modifying an arbitration award, the motion court is limited to the grounds set forth in 9 U.S.C. sections 10 and 11. 9 U.S.C. section 9. That is, unless the court vacates, modifies, or corrects the award, the award must be confirmed. Id. The party challenging an arbitration award has the burden of demonstrating that the award is not valid. Scharf v. Kogan, 285 S.W.3d 362, 373 (Mo.App. E.D.2009). The Western District of this Court, in Parks, explained:

As the party challenging the arbitration awards, [Respondent] had the burden of demonstrating that the awards were not valid. Although the petition alleged ... statutory grounds for vacating the awards, no evidence was adduced to support those allegations. Conclusory allegations are insufficient to establish the invalidity of an award.

Parks, 204 S.W.3d at 311 (internal citations omitted).

In this case, Respondent failed to produce any evidence at either hearing. Without Respondent bringing forth any evidence that any of the grounds set forth in 9 U.S.C. section 10(a) apply, the trial court’s decision to not confirm the arbitration award was not based on any evidence, which, of course, renders it impossible for the decision to be based on substantial evidence.

We reverse the trial court’s decision to deny Appellant’s motion to confirm the arbitration award, and remand the case for further proceedings consistent with this opinion.

SCOTT, C.J., and FRANCIS, J., concur.

      . Respondent did not submit a brief on appeal. While there is no penalty for Respondent failing to file a brief, this Court is then forced to adjudicate Appellant’s claim of error without the benefit of whatever argument Respondent might have raised. McClain v. Kelley, 247 S.W.3d 19, 23 (Mo.App.S.D.2008).

      . Federal Arbitration Act, 9 U.S.C. section 1 et seq. (2000).

      . All statutory references are to RSMo 2000, unless otherwise indicated.

      .The trial court heard arguments on the issues, but arguments from attorneys do not constitute evidence. Weber v. Deming, 292 S.W.3d 914, 918 (Mo.App. W.D.2009).


source: Caselaw Access Project

author: JOSEPH M. ELLIS, Judge.

license: Public Domain

text:
    Glenda Sue CLAUS, Respondent, v. INTRIGUE HOTELS, LLC, Appellant.
    No. WD 71927.
    Missouri Court of Appeals, Western District.
    Dec. 28, 2010.

      Dennis J. Cassidy, for Appellant.
    Kristi L. Kingston, for Respondent.
    Before Division One: THOMAS H. NEWTON, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Intrigue Hotels, L.L.C. appeals from a judgment entered in the Circuit Court of Jackson County in favor of Glenda Claus in her action for age discrimination, awarding her $50,000.00 in actual damages and $150,000.00 in punitive damages. For the following reasons, the judgment is affirmed.

Claus started working at the Park Place Hotel in Kansas City, Missouri, in 1984 as a room attendant. Intrigue Hotels acquired the Park Place Hotel in 2004. Frank Copidas, Jr. was the majority owner of Intrigue Hotels. In 2006, the head of housekeeping, Mark Ihde, promoted Claus to the position of housekeeping supervisor. After Ihde resigned on September 29, 2007, Dalinda Galaviz replaced him as head of housekeeping on October 15, 2007. On December 7, 2007, Galaviz fired Claus, who was 63-years-old at the time.

Claus filed a timely Charge of Discrimination against Intrigue Hotels and Copidas with the Missouri Commission on Human Rights (“the MCHR”) and, subsequently, received a Notice of Right to sue from the MCHR. On September 30, 2008, Claus filed a petition in the Circuit Court of Jackson County claiming that Intrigue Hotels and Copidas had discriminated against her based upon her age and seeking actual and punitive damages under the Missouri Human Rights Act.

A bifurcated jury trial was conducted starting on August 18, 2009. The jury eventually returned a verdict of $50,000.00 in favor of Claus against Intrigue Hotels and a finding that punitive damages were warranted. The jury found in favor of Copidas on her claims against him. The issue of punitive damages was then tried and submitted to the jury, which eventually awarded $150,000.00 in punitive damages. The trial court entered judgment in accordance with the jury’s verdict. Intrigue Hotels brings eight points on appeal from that judgment.

We first address Appellant’s claim that the evidence was insufficient to support the jury’s award of actual damages to Claus. Appellant contends that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict because insufficient evidence was presented to support a finding that age was a contributing factor in the termination of Claus’s employment.

Section 213.055 of the MHRA “prohibits employers from engaging in discriminatory employment practices, including wrongful termination.” Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 819 (Mo. banc 2007). “The MHRA defines ‘discrimination’ to include any unfair treatment based on race, color, religion, national origin, ancestry, sex, age as it relates to employment, disability, or familial status as it relates to housing.” Id. (internal quotation omitted).- “Nothing in this statutory language of the MHRA requires a plaintiff to prove that discrimination was a substantial or determining factor in an employment decision; if consideration of age, disability, or other protected characteristics contributed to the unfair treatment, that is sufficient.” Id.

“MAI 31.24 sets out the elements necessary for a submissible case of age discrimination.” Stanley v. JerDen Foods, Inc., 263 S.W.3d 800, 803 (Mo.App. W.D.2008). Consistent with MAI 31.24, the jury was instructed to return a verdict in favor of Claus if it found (1) Appellant had discharged Claus, (2) that age was a contributing factor to such discharge, and (3) that Claus sustained damages as a result of such conduct. Appellant challenges the sufficiency of the evidence to establish that age was a contributing factor in Claus’s discharge.

Claus was 63-years-old when she was fired by Appellant and replaced by a 31-year-old employee, shortly after Galaviz had inquired about Claus’s age. Galaviz testified that Claus was “completely blindsided” with the news of her termination and that she had never been warned that her performance was deficient in any way. Galaviz told Claus she was being fired because she did not “fit in.” The Personnel Action Form provided to Claus stated that she was being let go as a part of a “reduction in staff.” While Appellant initially claimed that Claus was fired as part of a staff reduction, Claus was the only employee that was fired at that time.

After Claus filed her claim of age discrimination, Appellant began claiming that Claus had been terminated for performance reasons as well as a reduction in force. By trial, in its motions for directed verdict, for JNOV, and for new trial, and in its submitted defense instruction, Appellant merely asserted that Claus was terminated for poor job performance.

The jury could more than reasonably have rejected Appellant’s later claims that Claus was feed for performance deficiencies in light of (1) Appellant’s failure to mention that rationale until after Claus filed her discrimination claim months later, (2) Claus’s record of positive job performance evaluations and lack of “write-ups,” and (3) Galaviz’s failure to admonish or warn Claus regarding deficiencies in her job performance despite regularly “writing-up” other employees. In fact, the retained housekeeping supervisor, who was in her thirties, had been written up multiple times for excessive absences. Moreover, Ihde, Claus’s supervisor up until September 29, 2007, testified Claus had always performed all of her duties well the entire time he was at the hotel.

Galaviz testified that she wanted to have employees who would be at the hotel for the “long haul.” Galaviz also told Copidas and Starlette McCale, the hotel’s general manager, that Claus was “resistant to change,” a phrase Galaviz acknowledged is frequently used as code by human resources people when discharging an employee for being too old. The jury could reasonably have taken these statements to mean that Galaviz did not want older employees and that Claus’s age was a factor in her firing. The evidence supports the jury’s finding of age discrimination. Point denied.

We next examine Appellant’s claim that the evidence was insufficient to support an award of punitive damages. “Section 213.111.2 permits recovery of punitive damages in claims brought under the Missouri Human Rights Act.” Gilliland v. Missouri Athletic Club, 273 S.W.3d 516, 520 (Mo. banc 2009). “Under Missouri law, a plaintiff is entitled to punitive damages if the plaintiff proves by clear and convincing evidence that the defendant’s conduct was outrageous because of the defendant’s evil motive or reckless indifference to the rights of others.” Id. “Whether there is sufficient evidence to support an award of punitive damages is a question of law, and this Court’s review is de novo.” Id. In making that determination, however, “we view the evidence and all reasonable inferences in the light most favorable to submissibility and we disregard all evidence and inferences which are adverse thereto.” Alhalabai v. Missouri Dep’t of Natural Res., 300 S.W.3d 518, 528-29 (Mo.App. E.D.2009).

“If a defendant intentionally does a wrongful act, and knows at the time the act was wrongful, it is done wantonly and with a bad motive.” Williams v. Trans States Airlines, Inc.,. 281 S.W.3d 854, 870 (Mo.App. E.D.2009). “An evil intent may also be implied from reckless disregard of another’s rights and interests.” Id. “Punitive damage awards have been sustained when the court found management participated in the discriminatory conduct and treated the plaintiff differently from others.” Alhalabi, 300 S.W.3d at 529. “Proof offered to support an employee’s underlying substantive claim and the employee’s additional claim for punitive damages need not be mutually exclusive, and often is not.” Williams, 281 S.W.3d at 870-71.

In this case, Claus was required to submit evidence allowing a reasonable fact-finder to conclude that age was a contributory factor in Appellant’s decision to terminate her employment. Nothing more was required to prove her underlying claim. “Evidence that meets this burden may potentially allow a reasonable fact-finder also to conclude that [Appellant] acted with evil motive or reckless indifference.” Id. at 870. Thus, the jury could consider all of the evidence recited supra in considering the punitive damage claim. In particular, the jury had before it evidence that Galaviz had an extensive knowledge of employment law, having engaged in consulting work in human resources, including training small to medium sized businesses in employment law, and having assisted other employers with drafting their anti-discrimination policies and procedures. Both Copidas and Galaviz knew it was against the law to fire an employee because of an employee’s age. Yet they fired Claus, a 63-year-old employee, with a spotless record in 23 years of employment, and replaced her with someone in her thirties who had been written up multiple times for excessive absences. At the same time Claus was being fired, several younger employees with documented performance problems were retained and even promoted or given raises. Moreover, Appellant altered its rationale for firing Claus several times and created pretextual reasons for the firing. Based on this, and the other evidence in the record, the jury reasonably could find that Galaviz, knowing that it was illegal, fired Claus because of her age, preferring younger employees that would be there for the “long haul.” Thus, clear and convincing evidence supports a finding that Galaviz intentionally fired Claus based upon her age and that she knew that firing Claus on that basis was wrongful, thereby evidencing an evil motive. The jury’s decision to award punitive damages is supported by the evidence and is not against the weight of the evidence. Point denied.

Appellant next asserts that the trial court abused its discretion in excluding from evidence, during the punitive damage portion of the trial, testimony from David Thiessen about Appellant’s dire financial situation. Appellant claims the exclusion of that testimony was an improper discovery sanction resulting from its failure to produce financial records before trial in that it had not been required to produce those documents because the trial court had not entered a finding under § 510.263.8 that Claus would more likely than not be able to present a submissible case of punitive damages.

When Appellant sought to introduce testimony from Thiessen related to the financial condition of Appellant, Claus objected to that testimony based upon Appellant’s failure to establish an adequate foundation for that testimony and because Appellant had not produced financial records in response to prior discovery requests and failed to produce such records after the jury entered its verdict finding punitive damages should be awarded prior to the start of the punitive damage phase of trial. The court excluded that testimony, noting that Thiessen was not an owner of the company, was not an employee of the company, and did not have access to the records of the company. The court also noted that, without any of the company’s financial records requested in discovery being produced prior to the punitive damage phase of the trial, Claus had no way to cross-examine Thiessen about the financial situation of Appellant.

“The admission or exclusion of evidence rests in the sound discretion of the trial court, and the court’s decision will be reversed only if it constitutes an abuse of discretion.” Peters v. ContiGroup, 292 S.W.3d 380, 392 (Mo.App. W.D.2009). “Where evidence has been excluded, the issue is not whether the evidence was admissible, but rather whether the trial court abused its discretion in excluding it.” UMB Bank, NA v. City of Kansas City, 238 S.W.3d 228, 231 (Mo.App. W.D.2007) (internal quotation omitted). “The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.” Peters, 292 S.W.3d at 392 (internal quotation omitted). “The trial court’s ruling will be upheld when any recognizable ground exists on which the trial court could have rejected the evidence.” Arrington v. Goodrich Quality Theaters, Inc., 266 S.W.3d 856, 864 (Mo.App. S.D.2008) (internal quotation omitted).

Appellant’s point challenges the trial court’s ruling as a discovery sanction for failure to provide Claus with the financial records prior to trial. The trial court made no such ruling. The trial court excluded Thiessen’s testimony from evidence because (1) Thiessen was not an owner or employee of the company and had no access to the corporation’s financial documents, thereby precluding sufficient personal knowledge of the subject matter, and (2) the requested financial documents had not been provided to Claus subsequent to the jury’s verdict and prior to trial of the punitive damage phase, thereby preventing Claus from reviewing the corporation’s records in order to allow effective cross-examination of Thiessen. Appellant’s point does not challenge either of these reasons for the trial court’s ruling. Because the actual grounds upon which the trial court excluded the testimony are not challenged on appeal, we must affirm the trial court’s decision. Point denied.

Appellant also asserts a point on appeal claiming that the trial court erred in denying its motion for remittitur because the jury’s award of $150,000.00 in punitive damages exceeded fair and reasonable compensation for Claus’s injuries. Appellant argues that an improperly executed verdict that was rejected by the court during the liability phase of the trial evidenced the intent of the jury to award $80,000.00 in punitive damages and that, since no evidence was presented in the punitive damages phase of the trial, the record does not support an amount higher than $80,000.00.

Section § 537.068 vests the trial court with discretion to remit a verdict if the evidence, viewed in the light most favorable to the verdict, does not support the amount awarded by the jury. § 537.068. “We will not disturb the trial court’s decision to grant or deny remittitur absent an abuse of discretion.” Brown v. Cedar Creek Rod & Gun Club, 298 S.W.3d 14, 21 (Mo.App. W.D.2009). “Generally, the decision to award punitive damages is peculiarly committed to the jury and the trial court’s discretion, and the appellate court will only interfere in extreme cases.” Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 810 (MoApp. W.D. 2008) (internal quotation omitted). “On appellate review, an abuse of discretion is established when the punitive damage award is so disproportionate to the factors relevant to the size of the award that it reveals improper motives or a clear absence of the honest exercise of judgment.” Id. (internal quotation omitted). “In other words, the amount of punitive damages must somehow be related to the wrongful act and the actual or potential injury resulting therefrom, although there is no fixed mathematical relation between the amount of actual damages and the amount of punitive damages awarded.” Id. (internal quotation omitted). “Only when the amount is manifestly unjust will appellate courts interfere with or reduce the size of a verdict.” Id. (internal quotation omitted).

“A case-by-case analysis is utilized to evaluate punitive damages awards.” Id. “We, review the evidence in a light most favorable to the verdict and will disturb the judgment only when the verdict is manifestly unjust.” Brown, 298 S.W.3d at 21.

Appellant’s claim on appeal is based entirely upon notes sent to the judge by the jury and an incomplete verdict form. Early on, the jury returned a verdict finding in favor of Claus against Appellant and awarding $130,000 in compensatory damages. That verdict did not, however, reflect whether the jury had found that punitive damages should also be awarded. When the issue of punitive damages was referred back to the jury, the jury requested a new verdict form and was provided one. Later, the jury sent down a question that stated, “During the second stage are we to include the amount of punitive damages? The amount we sent down included punitive damages.” The Court responded, “If you find that Defendant Intrigue Hotels is liable for punitive damages in this stage of trial, you will be given further instructions for assessing the amount of punitive damages in the second stage of the trial.” The jury later returned its verdict awarding Claus $50,000.00 in compensatory damages and finding that an award of punitive damages was appropriate. The case then proceeded to the punitive damage phase where the parties presented their arguments on punitive damages and the jury was instructed on how to assess punitive damages. The jury subsequently returned a punitive damages award against Appellant for $150,000.00.

Appellant argues that the jury notes establish that the jury had included $80,000.00 in punitive damages in the incomplete verdict form that purported to award $130,000.00 in compensatory damages. Appellant reasons that since the jury ultimately awarded just $50,000.00 in compensatory damages, and indicated that it had included punitive damages in its incomplete verdict form, that the only logical explanation is that the jury intended $80,000.00 as punitive damages. Appellant further asserts that nothing in the record provides an evidentiary basis for the jury later awarding more than $80,000.00 in punitive damages.

The flaws in Appellant’s reasoning are manifest. First, at the time the jury returned its incomplete verdict form, it had not yet heard arguments on the issue of punitive damages and, more importantly, had not yet been instructed on how to assess punitive damages. Thus, at the time the incomplete verdict form was returned, the jury had no knowledge or understanding of the legal basis for punitive damages or how to award them. The fact that the jury stated that it had included punitive damages in the $130,000.00 damage award in the incomplete verdict form does not in any way prove that the jurors intended only $50,000.00 in compensatory damages and the balance in punitive damages. Since the jury was uninformed at the time, it is no less likely that it intended $129,999.00 in compensatory damages and $1.00 in punitive damages.

Finally, even assuming, arguendo, that the jury definitely intended to award $80,000.00 in punitive damages at the time the incomplete verdict form was returned, the jury had every right after arguments and proper instruction to decide on a different amount as a result of having a proper understanding of how they were to assess punitive damages. Point denied.

Appellant also brings a point claiming that the trial court erred in excluding from evidence, during the liability stage of trial, evidence establishing that Appellant was experiencing financial difficulties and that a lender had assumed control of hotel operations in July 2009. Appellant argues that this evidence was relevant to establish that Appellant had a non-discriminatory reason for terminating Claus.

As noted supra, “[t]he admission or exclusion of evidence rests in the sound discretion of the trial court, and the court’s decision will be reversed only if it constitutes an abuse of discretion.” Peters, 292 S.W.3d at 392. “To be admissible, evidence must be logically and legally relevant.” Eckerd v. Country Mut. Ins. Co., 289 S.W.3d 738, 743 (Mo.App. E.D.2009). “Evidence is logically relevant if it tends to make any fact at issue more or less probable or tends to corroborate other relevant evidence.” Glover v. State, 225 S.W.3d 425, 429 (Mo. banc 2007). “Legal relevance is a determination of the balance between the probative and prejudicial effect of the evidence.” Id. “The determination of whether evidence is legally relevant is within the sound discretion of the trial court.” Eckerd, 289 S.W.3d at 743.

The trial court could more than reasonably have determined that the fact that a bank took over hotel operations a year and a half after Claus was feed had little to no probative value with regard to whether she was fired as a result of age discrimination. The trial court did not abuse its discretion in excluding that evidence. Point denied.

Next, Appellant claims that the trial court erred in excluding Exhibit 107, a written account of a meeting Claus had with Loanna Santiago and Michelle For-gues on March 3, 2006, from evidence. When Appellant sought to introduce that exhibit, Claus objected claiming that an insufficient foundation had been laid for its admission and that the document contained inadmissible hearsay. The trial court excluded the exhibit from admission, noting that McHale, the general manager of the hotel at the time Claus was fired, through whom Appellant sought to establish a foundation, was not with the company at the time Exhibit 107 was created and that nothing indicated that McHale had ever seen the exhibit before or had any knowledge of it. Appellant argues on appeal that a sufficient foundation was established for the admission of that exhibit under the business records exception to the hearsay rule.

“The trial court is vested with broad discretion in ruling on questions of admissibility.” State v. Newlon, 216 S.W.3d 180, 186 (Mo.App. E.D.2007). “Absent a clear showing of an abuse of that discretion, we will not interfere with the trial court’s ruling.” Id.

Section 490.680 provides that: [a] record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

Thus, “[t]o establish the foundation for the admission of a business record, the testifying witness need only to be a custodian of the record, or other qualified witness, and must testify to the record’s identity, mode of preparation, and that it was made in the regular course of business at or near the time of the act, condition, or event.” State v. Tillman, 289 S.W.3d 282, 295 (Mo.App. W.D.2009) (internal quotation omitted). “[T]he ‘bottom line’ regarding the admissibility of the business records is the discretionary determination by the trial court of their trustworthiness.” Alberswerth v. Alberswerth, 184 S.W.3d 81, 101 (Mo.App. W.D.2006) (internal quotation omitted). “A trial court is afforded broad discretion in determining whether the parties complied with section 490.680.” Id. at 101-02.

Appellant claims that a sufficient foundation was established for the admission of Exhibit 107 because McHale testified that she knew the hotel kept personnel files on its employees, that personnel files were maintained in the ordinary scope and course of the hotel’s business, and that she had some general familiarity with the content of employee personnel files. Appellant further relies on the McHale’s testimony, after having been asked if Exhibit 107 had been maintained in Claus’s personnel file, that “[i]t should have been.”

The trial court cannot be deemed to have abused its discretion in excluding Exhibit 107. Even assuming, arguendo, that McHale was established to be a “qualified witness” for the purposes of § 490.680, McHale offered no testimony specifically addressing the mode of Exhibit 107’s preparation or whether it was prepared in the regular course of business at or near the time of the meeting of March 3, 2006. Point denied.

Appellant next claims that the trial court abused its discretion in allowing portions of Exhibit 2, Appellant’s response letter to the Missouri Commission on Human Rights, into evidence because the probative value of that evidence was outweighed by its prejudicial effect. In its argument, Appellant fails to specify what portions of Exhibit 2 were read into evidence, which portions it believes were erroneously admitted, or to explain how it was prejudiced by the admission of that evidence. “An error in the admission or exclusion of evidence will only result in reversal if the appellant was prejudiced by it.” Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 165 (Mo.App. W.D.2006). Because Appellant has failed to identify in its argument what prejudice it suffered from the trial court’s admission of this evidence, there is nothing for this court to review. Id. (citing Wood v. Wood, 94 S.W.3d 397, 404 (Mo.App. W.D.2003)). Point denied.

Finally, Appellant claims that the trial court committed reversible error by giving the jury a “hammer instruction” rather than declaring a mistrial after the jury reported being deadlocked after deliberating for three and a half hours. Appellant argues that the instruction was improper because no such instruction is contained in the Missouri Approved Instructions and because it coerced a verdict from the jury.

Whether a jury was instructed properly is a question of law to be reviewed de novo on appeal. Klotz v. St. Anthony’s Med. Ctr., 311 S.W.3d 752, 767 (Mo. banc 2010). “The decision, in the face of a deadlock in civil cases, to declare a mistrial or urge the jury to continue deliberating is within the discretion of the trial court.” Id. “Oral instructions that encourage a civil jury to reach a verdict are proper so long as they do not coerce the verdict.” Id.

The fact that no hammer instruction is contained in the Missouri Approved Instructions for civil cases does not preclude their use. Id. at 768. Indeed, an instruction modeled after MAI-CR 1.10 “has been held to be appropriate in civil cases.” Id.

The trial court offered the following instruction to the jury after it had reported being deadlocked:

But I want to read you one more jury instruction. And I want you to listen to this instruction and go back upstairs and see what you can do, and then we’ll see what happens.
“You should make every reasonable effort to reach a verdict as it is desirable that there be a verdict in every case. Each of you should respect the opinions of your fellow jurors as you would have them respect yours and, in a spirit of tolerance and understanding, endeavor to bring the deliberations of the whole jury to an agreement upon a verdict. Do not be afraid to change your opinion if the discussion persuades you that you should. But a juror should not agree to a verdict that violates the instructions of the Court.”
And with that one additional instruction, I’d just like to ask you to go upstairs and see if you are able to reach a ver-diet. And I’ll expect to hear something from you. And I see the smiles. Thank you.

Nothing about the instruction given or the circumstances surrounding it establishes that the trial court coerced a verdict from the jury or that the trial court abused its discretion in any way. Moreover, the compensatory and punitive damage verdict forms in this case were signed by fewer than all twelve jurors. As noted in Garner v. Jones, 589 S.W.2d 66, 69 (Mo.App. W.D.1979), and Nash v. Plaza Electric, Inc., 363 S.W.2d 637, 641 (Mo.1962), the fact that the verdicts were not unanimous supports the conclusion that the jury was not coerced. Point denied.

Having found no merit to any of Appellant’s points on appeal, the judgment of the trial court is affirmed. As Claus has prevailed on appeal, we next consider her motion for attorney’s fees and costs incurred during the appeal, which was taken with the appeal.

Claus timely filed a motion for attorney’s fees and costs related to her appeal as the prevailing party in a human rights action pursuant to § 213.111.2. “The language of Section 213.111.2 allows a court to award ‘court costs and reasonable attorney fees to the prevailing party’ ” in a human rights action. Alhalabai v. Missouri Dep’t of Nat. Res., 300 S.W.3d 518, 530 (Mo.App. E.D.2009).

Appellant opposes an award of attorney’s fees, claiming that neither § 213.111.2 nor the case law allow for this Court to grant such an award. Appellant is incorrect in both those assertions. As noted, § 213.111.2 explicitly provides that “[t]he court ... may award court costs and reasonable attorney fees to the prevailing party....” The award of costs and attorneys fees authorized by § 213.111.2 was meant to fully compensate for the costs of prosecuting the matter to final judgment. Pollock v. Wetterau Food Dist. Group, 11 S.W.3d 754, 775 (Mo.App. E.D.1999). This includes any reasonable hours spent and expenses incurred in connection with an appeal of the judgment below. Id. As noted by this Court in the context of the Federal Odometer Act, “[rjefusing to compensate an attorney for the time reasonably spent on appellate work defending a judgment would be inconsistent with the intent of [the Legislature] in providing for an award of attorney’s fees.” Williams v. Finance Plaza, Inc., 78 S.W.3d 175, 188 (Mo.App. W.D.2002). The same logic applies to the Missouri Human Rights Act. Accordingly, Claus’ request for attorney’s fees on appeal is granted.

While this Court has expertise on the subject of appellate attorney’s fees, In re C.W., 257 S.W.3d 155, 159 (Mo.App. E.D.2008), and has the authority to enter an award of appellate attorney fees pursuant to § 213.111.2, Alhalabi, 300 S.W.3d at 530 n. 7, trial courts are also considered experts on the subject of attorney’s fees. Williams v. Finance Plaza, Inc., 78 S.W.3d 175, 184 (Mo.App. W.D.2002). Moreover, trial courts are generally in a better position to take evidence and hear argument relating to attorney fees. In re C.W., 257 S.W.3d 155, 159 (Mo.App. E.D.2008). Therefore, the case is remanded to the trial court for an award of reasonable attorneys’ fees and costs on appeal.

All concur.

      . "The MHRA protects persons aged 40 to 70 from age discrimination.” Daugherty v. City of Maryland. Heights, 231 S.W.3d 814, 820 n. 8 (Mo. banc 2007) (citing § 213.010(1)).

      . Claus had received a raise in May 2007. Ihde, her supervisor before Galaviz, testified that Claus had a strong work ethic, excellent attendance, completed her work on time, and that she always followed instructions.

      . "Supervisory employees, having general powers or authority beyond that of mere ‘ministerial’ employees, are treated as agents of a corporation, and thus, knowledge of the supervisor’s conduct, by the supervisor himself [or herself], may be imputed to the corporation.” Alhalabai v. Missouri Dep’t of Natural Res., 300 S.W.3d 518, 529 (Mo.App. E.D.2009).

      . Under § 510.263.8, "[discovery as to a defendant’s assets shall be allowed only after a finding by the trial court that it is more likely than not that the plaintiff will be able to present a submissible case to the trier of fact on the plaintiff's claim of punitive damages.”

      . Moreover, even were we to sua sponte, ex gratia, review the propriety of the trial court’s actual reasons for its ruling, we would not be left with the impression that the trial court's ruling was contrary to the logic of the circumstances or that it was so unreasonable and arbitrary as to shock the sense of justice.

      . All statutory references are to RSMo 2000 unless otherwise noted.

      . Pursuant to Local Rule XXIX of this Court, any party seeking an amount due for attorney’s fees on appeal pursuant to contract, statute, or otherwise must file a separate motion for such fees before the case is submitted.


author: VICTOR C. HOWARD, Judge. ALOK AHUJA, Judge,

text:
    K. ASAMOAH-BOADU, d/b/a/ Sam’s Janitorial Service, Respondent, v. STATE of Missouri, Office of Administration, et al., Appellant.
    No. WD 71885.
    Missouri Court of Appeals, Western District.
    Dec. 28, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court March 1, 2011.

      Mark E. Long, for Appellant.
    David J. Moen, for Respondent.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   VICTOR C. HOWARD, Judge.

The State of Missouri, Office of Administration, et al. (OA) appeals the judgment of the trial court following a bench trial finding that the OA breached its contracts with K Asamoah-Boadu d/b/a Sam’s Janitorial Service and awarding damages. It contends that its termination of the contracts with Sam’s Janitorial was permissible under the contracts and, thus, did not constitute a breach of the contracts. It further contends that the trial court erred in calculating the damages award. The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded with directions.

The case involves nine contracts awarded by the OA to K. Asamoah-Boadu (Sam), a United States citizen doing business as Sam’s Janitorial Service, to perform janitorial services in various State of Missouri buildings. The contracts had contract periods ending at various times between June 2007 and June 2008. They required Sam’s Janitorial to “comply with all local, state, and federal laws and regulations related to the performance of the contract to the extent that the same may be applicable.” The contracts also provided that the OA could cancel the contracts “[i]n the event of material breach of the contractual obligations by the contractor.” Finally, the contracts contained a provision allowing the OA to terminate the contracts for any reason with thirty days notice.

To work in the state buildings, Sam’s Janitorial employees had to have security authorizations and photo IDs. To obtain these for its employees, Sam’s Janitorial was required to provide certain documentation to the OA. First, it provided copies of two forms of identification for the employees such as a driver’s license, social security card, passport, or alien registration card (green card). Also, Sam’s Janitorial was required to obtain criminal background checks from the Highway Patrol for its employees. Potential employees were routinely rejected by Sam’s Janitorial if they could not provide the proper documentation. After Sam’s Janitorial provided the OA with the required documents, the OA would send the information to the Capitol Police to check for outstanding warrants.

If there were no problems with the documentation or background checks, the OA would approve the employees to work in the state buildings. Occasionally, when Sam’s Janitorial submitted documents for its employees, the OA would reject them or want further clarification. Some problems encountered with the documentation were names not matching from one form of ID to the next or unsigned Social Security cards. On two occasions, Sam’s Janitorial submitted social security cards with the words “void” and “novelty” printed on them. Because of some of these problems, the OA asked the Capitol Police if there was a way to cross-check the documentation. As a result of this inquiry, federal and state law enforcement personnel entered the state buildings on March 6, 2007, where Sam’s Janitorial employees were working and arrested or detained twenty-five of them on suspicion of having falsified documentation. That same day, the OA terminated the contracts because of alleged “violation of the Illegal Immigration Reform and Immigration Responsibility Act (HUIRA) and INA Section 274A.” The OA also debarred Sam’s Janitorial from bidding on state contracts for a period of two years. Of the twenty-five employees arrested, eight were charged. Four of the eight employees were eventually convicted of having forged documents that showed they could legally work in the United States.

Sam’s Janitorial filed the underlying suit alleging in part breach of contract by the OA in terminating the contracts, violation of section 8.283, RSMo 2000 (repealed 2008), and unlawful executive order. The OA defended against the breach of contract action by asserting that it was entitled to terminate the contracts because Sam’s Janitorial materially breached the contracts when it violated federal law. The court entered judgment in favor of Sam’s Janitorial on the breach of contract claim and awarded it $151,782.67 in damages, finding that the OA “terminated [the] contracts on the unproven allegation that [Sam’s Janitorial] knowingly violated any state or federal employment law.” The trial court also found that the OA unlawfully debarred Sam’s Janitorial and ordered it to take all necessary steps to remove the debarment. It did not award any damages for the unlawful debarment. This appeal by the OA followed.

Breach of Contract

In its first point on appeal, the OA claims that the trial court erred in finding that it breached the contracts with Sam’s Janitorial when it terminated them. It asserts that it acted in accordance with the contracts, which permitted termination without notice if Sam’s Janitorial was not in compliance with state or federal law. The OA further asserts that detention by the federal authorities of a number of the employees and the documents submitted by Sam’s Janitorial for its employees provided a reasonable basis for the OA to conclude that Sam’s Janitorial was not in compliance with state or federal law.

In this court-tried case for breach of contract, the judgment of the trial court will be affirmed on appeal 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); Greenstreet v. Fairchild, 313 S.W.3d 163, 168 (Mo.App. S.D.2010). The evidence and all reasonable inferences are viewed in the light most favorable to the judgment, and all contrary evidence and inferences are disregarded. Greenstreet, 313 S.W.3d at 164. The appellate court defers to the trial court’s credibility determinations but reviews issues of law de novo. Id. at 169.

The OA’s defense in this breach of contract action was that it was entitled to terminate the contracts under the provisions of the contracts, specifically that Sam’s Janitorial was to “comply with all local, state, and federal laws and regulations related to the performance of the contract to the extent that the same may be applicable” and that it could cancel the contracts “[i]n the event of material breach of the contractual obligations by the contractor.” Specifically, the OA asserted that Sam’s Janitorial violated 8 U.S.C. § 1324a (2005), which deals with the unlawful employment of aliens.

If one party to a contract materially breaches the contract, the aggrieved party may cancel the contract and be relieved of its performance under the contract. Greenstreet, 313 S.W.3d at 169; Fire Sprinklers, Inc. v. Icon Contracting, Inc., 279 S.W.3d 230, 234 (Mo.App. E.D.2009); Curt Ogden Equip. Co. v. Murphy Leasing Co., Inc., 895 S.W.2d 604, 609 (Mo.App. E.D.1995). “ A material breach is one where the breach relates to a vital provision (i.e., material term) of the agreement and cannot relate simply to a subordinate or incidental matter.’ ” Greenstreet, 313 S.W.3d at 169 (quoting Spencer Reed Group, Inc. v. Pickett, 163 S.W.3d 570, 573-74 (Mo.App. W.D.2005)). Materiality is a question of fact. Id.; Fire Sprin klers, Inc., 279 S.W.3d at 233; Curt Ogden Equip. Co., 895 S.W.2d at 609. In this case, it need not be decided whether a violation of 8 U.S.C. § 1324a constituted a material breach of the contracts because the OA failed to prove that Sam’s Janitorial violated the law.

Eight U.S.C. § 1324a(a) makes it illegal for an employer to hire or continue to employ an alien knowing that he is an unauthoi'ized alien or to hire an individual without complying with the employment verification system:

(a) Making employment of unauthorized aliens unlawful

(1) In general
It is unlawful for a person or other entity—
(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment, or
(B) (i) to hire for employment in the United States an individual without complying with the requirements of subsection (b) of this section....

Subsection b of the statute involving the employment verification system requires attestation by an employer on an 1-9 form that it has verified that the individual is not an unauthorized alien by examining specified documents; attestation by the individual that he is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized to be hired for employment; and retention by the employer of the 1-9 for a specified period of time. 8 U.S.C. § 1324a(b)(l)-(3). Regarding the employer’s attestation duty, the statute provides:

(1) Attestation after examination of documentation

(A) In general
The person or entity must attest, under penalty of perjury and on a form designated or established by the Attorney General by regulation, that it has verified that the individual is not an unauthorized alien by examining—
(i) a document described in subpara-graph (B), or
(ii) a document described in subpara-graph (C) and a document described in subparagraph (D).
Such attestation may be manifested by either a hand-written or an electronic signature. A person or entity has complied with the requirement to this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine. If an individual provides a document or combination of documents that reasonably appears on its face to be genuine and that is sufficient to meet the requirements of the first sentence of this paragraph, nothing in this paragraph shall be construed as requiring the person or entity to solicit the production of any other document or as requiring the individual to produce such another document.

8 U.S.C. § 1324a(b)(l)(A). Subparagraph (B) lists a United State passport, a resident alien card, an alien registration card, or other document signed by the Attorney General as documents establishing both employment authorization and identity. 8 U.S.C. § 1324a(b)(l)(B). Subparagraph (C) lists a social security account number card or other documentation evidencing authorization of employment in the United States that the Attorney General finds to be acceptable as documents evidencing employment authorization. 8 U.S.C. § 1324a(b)(l)(C). Finally, subparagraph (D) lists a driver’s license or similar document or documentation of personal identity of such other type as the Attorney General finds provides a reliable means of identification as documents establishing identity. 8 U.S.C. § 1324a(b)(l)(D).

The OA argues that evidence showing that it encountered some problems with documentation submitted by Sam’s Janitorial such as names not matching from one form of ID to the next, unsigned social security cards, or social security cards with the words “void” or “novelty” printed on them and that federal authorities detained several Sam’s Janitorial employees provided a reasonable basis for the OA to conclude that Sam’s Janitorial was not in compliance with state and federal law. This argument is, however, flawed. First, the contract provision that the OA claimed Sam’s Janitorial breached required Sam’s Janitorial to comply with federal and state law. To show that Sam’s Janitorial breached that provision of the contract, the OA was required to show that Sam’s Janitorial actually violated federal or state law not that the OA had a reasonable basis to believe that Sam’s Janitorial violated the law.

Furthermore, the evidence cited by the OA did not demonstrate that Sam’s Janitorial knowingly hired or continued to employ an unauthorized alien. Similarly, it was insufficient to prove that Sam’s Janitorial hired individuals without complying with the employment verification system of 8 U.S.C. § 1324a(b)(l)-(3). The evidence regarding the problematic documentation was not presented in terms of whether Sam’s Janitorial verified the identity and employment authorization of its employees under the employment verification system of section 1324a. Rather, the evidence was presented in terms of Sam’s Janitorial obtaining security authorizations and photo IDs for its employees to work in the State buildings. To the extent that evidence was offered regarding problems with certain documents of certain employees, the evidence did not prove that Sam’s Janitorial failed to verify the identity and employment authorization for its employees by examining the documents specified in section 1324a. For example, evidence was presented that one employee, Armando Cabralis, had presented a social security card with the word “novelty” printed on it. However, a social security card was not the only document that may be examined to verify identity and employment authorization under section 1324a. Section 1324a sets out various documents or combinations of documents to verify that an individual is not an unauthorized alien. 8 U.S.C. § 1324a(b)(l)(B)-(D). No evidence was presented that Sam’s Janitorial did not verify Mr. Cabralis’s identity and employment authorization by examining other documents. And Mr. Cabralis was not one of the employees detained by federal authorities on March 6, 2007. The OA failed to prove that Sam’s Janitorial violated 8 U.S.C. § 1324a justifying its termination of the contracts. The trial court, therefore, did not err in finding that the OA breached the contracts with Sam’s Janitorial when it terminated them. The point is denied.

Damages

In its next point, the OA contends that the trial court erred in awarding Sam’s Janitorial damages for breach of contract representing lost profits of $151,782.67 that would have accrued through the ending dates of the nine contracts. It contends that damages should have been limited to those sustained during the thirty-day period following the letters of termination because the contracts were terminable without cause on thirty days written notice.

The objective in awarding damages is to make the injured party whole by placing it in the position it would have been in if the contract had been performed. U.S. Neurosurgical, Inc. v. Midwest Div.-RMC, LLC, 303 S.W.3d 660, 667 (Mo.App. W.D.2010). “The facts and circumstances of each case dictate which measure of damages is appropriate.” Guidry v. Charter Commc’ns, Inc., 269 S.W.3d 520, 532 (Mo.App. E.D.2008). “The proper measure of damages is a question of law.” Id.

In an action for breach of contract, lost profits are recoverable where the loss is the natural and proximate result of the breach, is ascertainable with reasonable certainty, is not speculative or conjectural, and was within the contemplation of the parties when the contract was made. Farmers’ Elec. Co-op., Inc. v. Mo. Dep’t of Corr., 59 S.W.3d 520, 522 (Mo. banc 2001). The law, however, cannot elevate the injured party to a better position than it would have been in had the contract been performed by both parties. Guidry, 269 S.W.3d at 533. A damages award for breach of contract will be reversed if the record shows an absence of proof of actual facts that present a basis for a rational estimate of damages without resort to speculation. Id.

In addition to the contract provisions permitting immediate termination for cause, each contract contained a termination clause permitting termination for any reason with thirty days notice. Specifically, the provision read:

The Division of Purchasing and Materials Management reserves the right to terminate the contract at any time, for the convenience of the State of Missouri, without penalty or recourse, by giving written notice to the contractor at least thirty (30) calendar days prior to the effective date of such termination.

This provision limited Sam’s Janitorial’s lost profit damages to the thirty-day termination period. Mach. Maint. & Equip. Co. v. Cooper Indus., Inc., 634 F.Supp. 367, 371 (E.D.Mo.1986); Buckley v. Coe, 385 S.W.2d 354, 358-59 (Mo.App.1964). Under this provision of the contracts, the OA had the absolute right to end the contracts for any reason or for no reason at all. To avail itself of such cancellation privilege, however, it was required to give Sam’s Janitorial thirty days notice. The OA notified Sam’s Janitorial with letters dated March 6, 2007, that it was cancelling the contracts that day for cause. As discussed in point one, the OA had no cause to terminate the contracts that day. The OA’s March 6, 2007 letters did, however, provide effective written notice to Sam’s Janitorial that the contracts were terminated, albeit without the required notice. Thus, Sam’s Janitorial was entitled to recover damages naturally or proximately resulting from the breach, which under the facts of the case was not the termination itself but rather the failure to provide thirty-days notice required by the terms of the contracts. See Machine Maint. & Equip. Co., 634 F.Supp. at 371. The lost profit damages should have been limited, therefore, to the contractual notice period of thirty days. Id:, Buckley, 385 S.W.2d at 359. Because the contracts contained the notice of cancellation provision, the parties simply did not contemplate lost profits damages exceeding thirty days. Awarding lost profits for a period longer than thirty days elevated Sam’s Janitorial to a better position than it would have been in had the OA given the required amount of notice of termination.

While lost profits must be limited to the termination period, “the termination notice period does not necessarily and under any and all circumstances set the parameters” for all provable damages. Keystone Floor Prods. Co. v. Beattie Mfg. Co., 432 F.Supp. 869, 882 (E.D.Pa.1977). For example, certain reliance damages, such as costs incurred or losses sustained in expectation of the relationship continuing for at least the notice period, may flow from breach of a notice agreement. Mach. Maint. & Equip. Co., 634 F.Supp. at 371. Additionally, damages for failure to give the required notice might also include the loss in value of a business as a going concern. Royal’s Reconditioning Corp. v. Royal, 293 Ill.App.3d 1019, 228 Ill.Dec. 365, 689 N.E.2d 237, 241 (1997).

At trial, Sam’s Janitorial only sought damages under its breach of contract claim for the loss of profits it sustained through the end of all nine contracts. It did not seek any other expectancy damages or damages for the loss in value of the business due to the failure to give required notice and did not present any evidence regarding such. It also sought damages for the profits it lost during the debarment period, presenting evidence that after the debarment, it was unable to obtain any other contracts in Missouri or several other states. The trial court, however, did not award any damages under its claim that the debarment was unlawful, and Sam’s Janitorial did not appeal that part of the judgment. Accordingly, any award of damages stemming from the unlawful debarment is foreclosed and should not be considered on remand.

The trial court erred in awarding Sam’s Janitorial lost profits that would have accrued through the ending dates of the nine contracts. The damages award is, therefore, reversed, and the case is remanded to the trial court to calculate lost profit damages consistent with this opinion.

The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded with directions.

Judge MARTIN concurs.

Judge AHUJA concurs in separate concurring opinion.

ALOK AHUJA, Judge,

concurring.

I agree with the majority’s affirmance of the trial court’s finding that the State breached its contracts with Asamoah-Boa-du by terminating those contracts based on his purported violation of federal law. I also concur in the majority’s reversal of the trial court’s damages award, based on its conclusion that Buckley v. Coe, 385 S.W.2d 354, 358-59 (Mo.App.1964), and Machine Maintenance & Equipment Co. v. Cooper Industries, 634 F.Supp. 367, 371 (E.D.Mo.1986), limit Asamoah-Boadu’s recoverable damages to those which accrued during the 30-day notice period contained in the contracts’ termination-for-convenience provision. I write separately, however, because I believe the damages issue presents a close question, and one on which — but for the prior decisions in Buck ley and Machine Maintenance — Asam-oah-Boadu might well be entitled to prevail.

The State did not invoke the termination-for-convenience provision when it terminated Asamoah-Boadu’s contracts on March 6, 2007. Instead, it relied solely on Asamoah-Boadu’s purported violation of federal immigration law. After a trial, the circuit court found that Asamoah-Boadu had not in fact violated federal law, and that the termination of Asamoah-Boadu’s contracts was therefore unlawful. The circuit court also found, as a fact, that the State had not relied on the termination-for-convenience provision, and that no evidence was presented that the State would have terminated Asamoah-Boadu’s contracts under the termination-for-convenience provision:

Defendants did not terminate Plaintiffs contracts based upon any 30-day provision. Defendants produced no evidence indicating that they would have terminated Plaintiff’s contracts for any reason other than the charge that he violated Federal employment law.

(Emphasis added.)

The majority of cases involving this situation — a defective for-cause termination —appear to reach the same result we do here, and hold that the terminated party’s damages are limited to the notice period contained in the termination-without-cause provision. See cases cited in the majority opinion at note 4. There are cases reaching contrary outcomes, however. Thus, in Chevrolet Motor Co. v. Gladding, 42 F.2d 440 (4th Cir.1930), the court refused to permit an automobile manufacturer, which had improperly terminated a dealership for cause, to limit its damage exposure based on the 60-day notice period applicable to terminations without cause:

When a party to a contract elects to cancel it under one or more alternative provisions conferring such a privilege, he should assign his cause and abide by it. He cannot assign one cause and cancel it, then, after being sued for wrongful cancellation, come into court and say he erred in respect of the cause assigned, but another cause does exist, and he is not liable.

Id. at 445. And in Reiver v. Murdoch & Walsh, P.A., 625 F.Supp. 998 (D.Del.1985), the court held that whether a defective termination for cause should be treated as a termination without cause was a factual question not amenable to resolution as a matter of law. Id. at 1009.

In the absence of Buckley and Machine Maintenance, I believe a strong argument could be made for deferring to the trial court’s factual findings that the State did not invoke, and would not have invoked, the termination-for-convenience provision. In seeking to limit Asamoah-Boadu’s damages to the 30-day notice period, the State makes what seems to be, at bottom, a factual argument: that it would have terminated Asamoah-Boadu’s contracts for convenience, even in the absence of any violation of federal law. After a trial, the circuit court found no evidence that this would, in fact, have occurred (I presume the burden of proof on this issue would properly fall on the defendant). I have difficulty understanding why, in the face of such a factual finding, we must irrebvM-ably presume that the State would have terminated Asamoah-Boadu’s contracts for convenience — even if Asamoah-Boadu was in full compliance with the contracts’ material terms — merely because it attempted to terminate the contracts based on the erroneous belief that cause existed.

The State could have included language in the contracts “converting” a defective for-cause termination into a termination for convenience. The Federal Acquisition Regulation requires the inclusion in certain government contracts of a specific provision stating that “[i]f it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience.” See 48 C.F.R. 52.212-4(m) (2010). Similar provisions have apparently been included in federal government contracts for some time. See, e.g., United States v. Lennox Metal Mfg. Co., 225 F.2d 302, 316 ¶ 5 (2d Cir.1955). I am troubled that, even though the State failed to include such language in Asamoah-Boadu’s contracts, and address the issue explicitly, we now give it the benefit of that omitted provision by limiting Asamoah-Boadu’s damages to those which would be available under the termination-for-convenienee provision.

Despite these reservations, Missouri caselaw appears to follow the majority approach on this issue, and I accordingly concur in the majority opinion, including its reversal of the damages award.

      . The OA extended Sam’s Janitorial’s debarment another year in March 2009.

      . Section 8.283 provided that any contractor determined upon reasonable evidence by the state agency to have knowingly violated the Immigration Reform and Control Act of 1986 by employing aliens unauthorized to work in the United States shall be ineligible to perform other contracts for the State of Missouri for a period of two years. On March 6, 2007, the same day that the OA terminated Sam’s Janitorial’s contracts, then-Governor Blunt issued an executive order that provided, in part:
      If the state determines that a current contractor employs any persons who are not eligible to work in the United States in violation of federal law, the contractor shall be in breach of contract and the state may lawfully terminate the contract and suspend or debar the contractor from doing business in the state of Missouri.

      . In this appeal, the OA challenges only the trial court’s judgment regarding the breach of contract claim and damages. It does not appeal the part of the judgment finding that it unlawfully debarred Sam’s Janitorial.

      . See also Trimed, Inc. v. Sherwood Med. Co., 977 F.2d 885, 893 (4th Cir.1992); Spotsylvania County School Bd. v. Seaboard Sur. Co., 243 Va. 202, 415 S.E.2d 120, 128-29 (1992); Shivers v. John H. Harland Co., 310 S.C. 217, 423 S.E.2d 105, 107-08 (1992); Mississippi Power Co. v. Cochran, 167 Miss. 705, 147 So. 473, 475 (1933); Martin v. U-Haul Co. of Fresno, 204 Cal.App.3d 396, 408-09, 251 Cal.Rptr. 17 (Cal.Ct.App.1988).

      . While this court has the authority under Rule 84.14 to "give such judgment as the court ought to give,” it is unable to modify the damages award on the record presented on appeal. Apparently, the parties had stipulated as to what the monthly gross income would have been on the contracts, which is necessary to calculate lost profits for thirty days. However, such stipulation was not included in the record on appeal or exhibits; thus, remand is necessary.

      . I believe the present case — which involves a wrongful exercise of for-cause termination authority — must be distinguished from cases in which the terminating party terminates a contract without cause, but fails to give the terminated party the benefits (such as notice, or severance payments) which the contract requires in the event of such a without-cause termination. See, e.g., Smalley Transp. Co. v. Bay Dray, Inc., 612 So.2d 1182, 1188 (Ala.1992); Royal’s Reconditioning Corp. v. Royal, 293 Ill.App.3d 1019, 228 Ill.Dec. 365, 689 N.E.2d 237, 240-41 (1997) (collecting cases). In those cases, the termination was not itself wrongful; the terminating party simply failed to give the other contracting party what was bargained for in the event of such a termination. Those cases do not involve the more difficult question presented here: whether a defective for-cause termination, invoking one provision of a contract, should be treated as if it were a without-cause termination under a separate contractual provision.

      . Framing the issue in terms of the parties’ reasonable expectations as of the time of contracting does not necessarily remove this difficulty. It is not self-evident that at the time of contracting the parties reasonably expected that an unfounded for-cause termination would be read to include an invocation (in the alternative) of the termination-for-convenience provision, particularly when language could have been included in the agreement, or in the notice of termination, to make that result explicit.