Anthony Arcese v. Daniel Schmitt & Company

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
ANTHONY ARCESE, ) ED103087
)
Appellant, ) Appeal from the Circuit Court of
) St. Louis County
v. ) 11SL-CC04781
)
DANIEL SCHMITT & COMPANY, ) Honorable Gloria Clark Reno
)
Respondent. ) Filed: September 6, 2016

Anthony Arcese ("Plaintiff") filed suit against Daniel Schmitt & Co. ("Defendant")

alleging, inter alia, violations of the Missouri Merchandising Practices Act ("MMPA"), Section

407.010, et seq., in connection with the sale of a 1954 Cadillac convertible. In response thereto,

Defendant filed a counterclaim for breach of contract. After a bench trial, judgment was entered

in favor of Defendant and against Plaintiff. The judgment of the trial court is affirmed in part

and reversed in part.

BACKGROUND

In December 2010, with the assistance of his adult children, Plaintiff, a New York

resident, began exploring the purchase of a classic automobile. Upon reviewing and searching

eBay, an online auction and shopping website, Plaintiff discovered a 1954 Cadillac convertible

("Cadillac") that was listed for sale. This Cadillac was owned by and listed on eBay by

Defendant, a classic car automotive dealer located in St. Louis County.
 Plaintiff's son contacted Defendant, via email, to express Plaintiff's interest in purchasing

the Cadillac. Prior to presenting an offer to Defendant for purchase of the Cadillac, Plaintiff

employed, at the cost of $350, the services of Mark Hiatt ("Hiatt"), a Missouri certified appraiser

of classic cars. Hiatt prepared and delivered to Plaintiff a report, indicating several cosmetic

items in need of repair.

Based upon the report developed by Hiatt, Plaintiff contacted Defendant to request

certain repairs be performed. Defendant agreed to undertake said repairs; however, there exists

considerable conflicting evidence as to who was to pay for the same.

On January 5, 2011, Defendant prepared the necessary paperwork, including a Retail

Buyers Order ("RBO"), to effectuate the purchase of the Cadillac, and faxed this paperwork to

Plaintiff. The RBO represented a sale price of $60,000 and required a $1,500 non-refundable

deposit. The RBO included no language or representation regarding Plaintiff's requested repairs

or which party was to pay for said repairs.1

Upon receipt, Plaintiff executed the paperwork, including the RBO, and faxed the same

back to Defendant on January 5, 2011. On that same date, Plaintiff provided to Defendant a

$1,500 deposit, via a credit card transaction, and Defendant removed the Cadillac from the eBay

website.

Additionally, on that same date, Plaintiff mailed to Defendant a $5,500 check. The

purpose of the $5,500 check is the source of contention. Defendant claims the $5,500 check was

an additional deposit, made to secure the purchase of the Cadillac and was to be used toward the

balance of the purchase price and requested repairs. Plaintiff contends Defendant verbally

1
Approximately one month before executing the RBO, Plaintiff withdrew his intention to buy the Cadillac from
Defendant. Plaintiff's previous hesitance purportedly caused Defendant to approach this transaction with much
greater caution.

2
requested $7,000 as a deposit, with only $1,500 being non-refundable, in order to effectuate the

sale of the Cadillac and to remove the Cadillac from the eBay website.

On January 19, 2011, Plaintiff and his son traveled from the State of New York to St.

Louis to inspect the Cadillac at Defendant's business. Upon a personal inspection of the

Cadillac, Plaintiff discovered several faults and defects that Plaintiff was purportedly unaware of

at the time of executing the RBO and paying Defendant pursuant to the parties' RBO and verbal

agreement. These defects prompted Plaintiff's hesitation to follow through with the purchase.

After returning to New York, on January 23, 2011, Plaintiff's son sent an email to Defendant

rescinding the contract for the sale of the Cadillac.

On January 25, 2011, Defendant responded to the email, informing Plaintiff that the full

$7,000 deposit would be retained by Defendant and not returned to Plaintiff.

In April 2013, Plaintiff filed a three count petition ("Petition") in the Circuit Court of St.

Louis County against Defendant, alleging, inter alia, Defendant violated the MMPA through

unlawful retention of the full $7,000 deposit. In support thereof, Plaintiff asserted the liquidated

damages provision of the RBO permitted Defendant to retain only $1,500 of the deposit, not the

full $7,000. The liquidated damages provision of the RBO read as follows:

FAILURE OR REFUSAL TO ACCEPT DELIVERY: Unless this Purchase
Order shall have been cancelled by Purchaser under and in accordance with the
provisions of paragraphs "1" and "9" above, Dealer shall have the right, upon
failure or refusal of Purchaser to accept delivery of the vehicle ordered and to
comply with the terms of this Purchase Order, to retain as liquidated damages any
cash deposit made by the Purchaser, and in the event a vehicle has been traded in
as part of the consideration for the vehicle ordered by the Purchaser hereunder to
sell such traded-in vehicle and reimburse himself with the proceeds of such sale
for the expenses specified in paragraph "1" above and for such other expenses and
losses as Dealer may incur or suffer as a result of such failure or refusal by
Purchaser.

(emphasis added).

3
 Defendant filed a counterclaim for breach of contract. After a two day bench trial, the

trial court entered judgment in favor of Defendant and against Plaintiff: (1) finding Defendant

did not violate the MMPA by retaining the full $7,000 deposit; (2) awarding Defendant

$16,019.85 in actual damages on Defendant's breach of contract counterclaim; and (3) awarding

Defendant $43,033.75 in attorney's fees and $5,147.92 in court costs.

This appeal follows.

DISCUSSION

Plaintiff advances three points on appeal. In his first point, Plaintiff contends the trial

court erred as a matter of law in finding against Plaintiff in his cause of action under the MMPA,

in that Defendant unlawfully retained $5,500 under the guise of liquidated damages. Plaintiff

maintains the RBO's liquidated damages provision limited Defendant's damages to only $1,500.

Second, Plaintiff avers the trial court erroneously declared or misapplied the law by

awarding Defendant both liquidated damages in the amount of $7,000 and actual damages in the

amount of $16,019.85.

Third, Plaintiff disputes the trial court's award of $43,033.75 in attorney's fees in favor of

Defendant. Specifically, Plaintiff argues an award of attorney's fees in favor of a defendant

under the MMPA is erroneous as matter of law, in that said award contravenes the legislative

intent and purpose of the MMPA.

Standard of Review

This court will affirm the judgment of the trial court in a bench-tried case unless there is

no substantial evidence to support it, it is against the weight of the evidence or it erroneously

declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); see also

Repair Masters Const., Inc. v .Gray, 277 S.W.3d 854, 857 (Mo. App. E.D. 2009). We view the

4
evidence and any inferences therefrom in the light most favorable to the trial court's judgment,

and we will disregard all contrary evidence and inferences. Star Dev. Corp. v. Urgent Care

Assocs., Inc., 429 S.W.3d 487, 491 (Mo. App. W.D. 2014). We defer to the trial court's

determination of witness credibility and the weight given thereto. Id.

However, when the issue to be determined on appeal is a question of law, such as issues

of statutory interpretation and contract interpretation, "no deference is due to the trial court's

judgment and our review is de novo." City of Richmond Heights v. Waite, 280 S.W.3d 770, 774

(Mo. App. E.D. 2009).

Analysis

Point I—Validity of Liquidated Damages Provision

In his first point on appeal, Plaintiff contends the trial court erred as a matter of law in

overruling Plaintiff's cause of action under the MMPA and awarding Defendant $7,000 as and

for liquidated damages. Specifically, Plaintiff argues the liquidated damages provision

incorporated in the RBO limits Defendant's liquidated damages to only $1,500, and Defendant's

retention of any sum over that amount violated the MMPA.

Ostensibly, Plaintiff maintains, in the alternative, should this court find the liquidated

damages provision does not, as a matter of law, limit Defendant's liquidated damages to only

$1,500, the trial court's award of $7,000 in liquidated damages to Defendant was, nevertheless

erroneous. In support thereof, Plaintiff avers that $7,000 was neither a reasonable forecast of

Defendant's harm, nor were Defendant's damages difficult to accurately discern.

A. Rules Governing Liquidated Damages

"Liquidated damages are a measure of compensation which, at the time of contracting,

the parties agree shall represent damages in a case of breach." Paragon Grp., Inc. v. Ampleman,

5
878 S.W.2d 878, 880 (Mo. App. E.D. 1994). Conversely, "a penalty [clause] is not a measure of

compensation for contract breach, but rather, a punishment for default or a security for actual

damages sustained due to non-performance which incorporates the idea of punishment."

Goldberg v. Charlie's Chevrolet, Inc., 672 S.W.2d 177, 179 (Mo. App. E.D. 1984); see also Star

Dev. Corp, 429 S.W.3d at 491 ("[P]enalty clauses serve as punishment for a default or breach.").

Ordinarily, "penalty clauses" are disguised as liquidated damages clauses. Cf.

Muhlhauser v. Muhlhauser, 754 S.W.2d 2, 5 (Mo. App. E.D. 1988) (a clause demarcated as a

"penalty" clause, may, nevertheless, be a liquidated damages clause); see also RESTATEMENT OF

CONTRACTS § 339, cmt. b. ("The payment promised may be a penalty, though described as

liquidated damages, and vice versa."). The mere branding of a provision in a contract as one of

"liquidated damages" does not, however, make it so. Hawkins v. Foster, 897 S.W.2d 80, 85

(Mo. App. S.D. 1995). If, in fact, said provision is a penalty, the labeling of the clause is of no

consequence. Id.; Boulware v. Crohn, 99 S.W. 796, 800 (Mo. App. 1907) ("Calling a sum

liquidated damages is not conclusive of its character."). Accordingly, the import of construing

purported liquidated damages provisions cannot be overstated, in that, generally, liquidated

damages clauses are valid and enforceable, whereas "penalty clauses" are invalid and

unenforceable. Grand Bissell Towers, Inc. v. Joan Gagnon Enters., Inc., 657 S.W.2d 378 (Mo.

App. E.D. 1983).

"There is no bright line separating a liquidated damages clause from a penalty clause."

Burst v. R.W. Beal & Co., Inc., 771 S.W.2d 87, 90 (Mo. App. E.D. 1989). However, in

construing and distinguishing between valid liquidated damages clauses and invalid penalty

clauses, this court is guided by RESTATEMENT OF CONTRACTS § 339 (1932), which has been

adopted by the Supreme Court of Missouri. Taos Const. Co., Inc. v. Penzel Const. Co., Inc., 750

6
S.W.2d 522, 525-26 (Mo. App. E.D. 1988); see also Grand Bissell Towers, Inc., 657 S.W.2d at

379 (adopting RESTATEMENT OF CONTRACTS § 339). Pursuant to § 339 of the RESTATEMENT OF

CONTRACTS:

(1) An agreement, made in advance of breach, fixing the damages therefor, is not
enforceable as a contract and does not affect the damages recoverable for the
breach, unless

(a) the amount so fixed is a reasonable forecast of just compensation for the
harm that is caused by the breach, and

(b) the harm that is caused by the breach is one that is incapable or very
difficult of accurate estimation.

RESTATEMENT OF CONTRACTS § 339; see also RESTATEMENT (SECOND) OF CONTRACTS § 356

(1981) (cited with approval by Paragon Grp, Inc., 878 S.W.2d at 881).2

Furthermore, in deciphering alleged liquidated damages provisions, the intent of the

parties governs. Star Dev. Corp., 429 S.W.3d at 492; see also Goldberg, 672 S.W.2d at 179

("The case law and treatises indicate that . . . it is the intent of the parties and the special

circumstances of the cases which control; not the contract terminology."). As such, "whether an

agreement sets forth a penalty or liquidated damages [clause], we look to the intention of the

parties as ascertained from the contract as a whole." Diffley v. Royal Papers, Inc., 948 S.W.2d

244, 246 (Mo. App. E.D. 1997).

B. The Liquidated Damages Provision Does Not, Per Se, Limit the Damages that May
be Awarded.

2
The RESTATEMENT (SECOND) OF CONTRACTS § 356 mirrors the RESTATEMENT OF CONTRACTS § 339. Specifically,
§ 356 of the RESTATEMENT (SECOND) OF CONTRACTS reads, in pertinent part, as follows:
(1) Damages for breach by either party may be liquidated in the agreement but only at an amount
that is reasonable in the light of the anticipated or actual loss caused by the breach and the
difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable
on grounds of public policy as a penalty.

7
 First, it must be noted that Plaintiff does not contend the liquidated damages provision of

the RBO is invalid per se. Rather, Plaintiff merely asserts the liquidated damages provision

limits, as a matter of law, Defendant's liquidated damages to only $1,500. Essentially, Plaintiff

concedes a liquidated damages award of $1,500 as valid and enforceable, but challenges a

liquidated damages award greater than $1,500. Although we note the novelty of Plaintiff's

argument, we are not persuaded.

On January 5, 2011, upon execution of the RBO, Plaintiff provided to Defendant a

$1,500 "non-refundable" deposit via a credit card transaction. Shortly thereafter, on the same

date, Plaintiff provided to Defendant a check valued at $5,500.

In the instant matter, the RBO included a liquidated damages provision which provided

for the forfeiture of "any cash deposit made by the Purchaser[.]" The full liquidated damages

provision is set forth, in toto, supra.

At trial, there was conflicting evidence adduced regarding the purpose of the $5,500

payment and whether said payment was non-refundable or refundable. However, grounded upon

the liquidated damages provision incorporated in the RBO and the evidence presented at trial, the

trial court awarded Defendant $7,000 in liquidated damages and denied Plaintiff's Petition

alleging a violation of the MMPA. In calculating the liquidated damages award, the judgment

of the trial court stated, in relevant part, as follows:

39. On January 5, 2011[,] [Plaintiff] signed each of the above documents, and
returned them to [Defendant] by Fax.
40. The [RBO] that [Plaintiff] signed on . . . January 5, 2011 provided that any
amounts paid by the buyer to the Dealer toward the purchase of the vehicle could
be kept by the Dealer as liquidated damages should buyer reject or refuse delivery
of the vehicle. (Paragraph 11 of Agreement).
***
42. [Plaintiff] also sent a total "down payment" of $7,000 ($1,500 in the form of
a nonrefundable deposit in order to remove the vehicle from the auction, and

8
 $5,500 in the form of a check, as an additional payment toward the balance of the
purchase price of the vehicle $60,000).
43. [Defendant] was reluctant to take the vehicle off the auction in view of the
fact [Plaintiff] backed out of the last deal, nor was [Defendant] willing to begin
undertaking the repairs unless the full purchase price was paid by [Plaintiff].
44. [Plaintiff] offered to send another $5,500 check (in addition to the initial
credit card charge of $1,500) to secure the sale and induce [Defendant] to address
the items identified on Mr. Hiatt's report.
45. Before signing and faxing the documents back to [Defendant] on January 5,
2011, and before sending his check, [Plaintiff] clearly knew that under the [RBO],
both the deposit of $1,500 and the additional $5,500 were nonrefundable. (Ex.
61).

Now, on appeal, Plaintiff requests this court to: (1) reweigh certain evidence and

determine the $5,500 payment was refundable; and (2) conclude, as a matter of law, the $5,500

payment was not a "deposit" for purposes of the liquidated damages provision.

As stated, supra, Plaintiff concedes the disputed provision of the RBO directs Plaintiff to

pay $1,500 to Defendant as for liquidated damages. In Missouri, the forfeiture of a deposit is

appropriate and tolerated for purposes of establishing liquidated damages. Carmel v.

Dieckmann, 617 S.W.2d 459, 461 (Mo. App. E.D. 1981);3 see also 25A C.J.S. Damages § 213

("A deposit or down payment is not to be treated as liquidated damages unless the parties have so

agreed. However, the designation of a deposit as "liquidated damages, evidences the parties'

intention to limit the seller's recovery to the stipulated amount."); Stillwell v. Temple, 28 Mo.

156, 162 (Mo. 1859) ("There can be no reason, if a person proposes to make a purchase at a

3
The vast majority of Missouri cases concerning the forfeiture of a deposit for purposes of liquidated damages arise
from real estate sale contracts. See, e.g., Carmel, supra; Waite, 280 S.W.3d 770; Highland Inns Corp. v. Am.
Landmark Corp., 650 S.W.2d 667 (Mo. App. W.D. 1983). However, we see no logical or legal reason why such a
rule should be limited to real estate sale contracts. In fact, several previous Missouri cases have permitted the non-
breaching party to retain a deposit for purposes of liquidated damages when a contract concerns something other
than real estate. See, e.g., Koelling v. Bank of Sullivan, 220 S.W.2d 794 (Mo. App. 1949) (deposit for the sale of
"stock of merchandise" was awarded as liquidated damages); Cleveland v. High Country Fashions, Inc., 831 S.W.2d
784 (Mo. App. W.D. 1992) (deposit for the sale of inventory and supplies for women's apparel store should be
awarded as liquidated damages). Missouri is not alone in this regard. See, e.g., United Title Agency, LLC v.
Surfside-3 Marina, Inc., 65 A.D.3d 1134 (N.Y. App. Div. 2009) (boat); Elec. Research Prods. v. Haniotis Bros., 39
P.2d 36 (Okla. 1944) (leased sounded equipment); Millar v. Smith, 67 S.W. 429 (Tex. App. 1902) (cattle).

9
future day, why he can not deposit stock, or any other property, with the stipulation that in the

event of being disappointed in procuring means to complete a purchase, he shall only forfeit the

deposit.").

Nevertheless, Plaintiff maintains that because the RBO did not include, much less,

describe the $5,500 payment as "non-refundable," said payment was, in fact, refundable and not

a "deposit" for purposes of liquidated damages. However, Plaintiff does admit the $5,500 was an

"additional cash deposit" made pursuant to a "separate, oral agreement."

We need not resort to the canons of contract construction to determine whether the

$5,500 payment was a "cash deposit," because Plaintiff, himself, admits in his brief that said

payment was an "additional cash deposit." (emphasis added). The plain and unambiguous

language of the liquidated damages provision at issue reads the Purchaser (Plaintiff) will forfeit

"any cash deposit made[.]" (emphasis added). Thus, by Plaintiff's own admission and intent, the

$5,500 payment falls under the realm of the liquidated damages provision. Triarch Indus., Inc. v.

Crabtree, 158 S.W.3d 772, 776 (Mo. banc 2005) ("The guiding principle of contract

interpretation under Missouri law is that a court will seek to ascertain the intent of the parties and

to give effect to that intent. . . . If the contract is unambiguous, it will be enforced according to its

terms.").

Moreover, this court finds there exists substantial evidence for the trial court's

determination that the $5,500 payment was "non-refundable." Although there was, indeed,

conflicting testimony in this regard, "an appellate court shall give due regard to the opportunity

of the trial judge to judge the credibility of the witnesses . . . (and) accord deference to the trial

judge's conclusions where there is conflicting testimony." S.G. Adams Printing & Stationery Co.

v. Cent. Hardware Co., 572 S.W.2d 625, 628 (Mo. App. 1978). We presume the trial court

10
accounted for such conflicting evidence in making its judgment. Lovan v. City of Festus, 679

S.W.2d 931, 932 (Mo. App. E.D. 1984) ("The resolution of the conflicting testimony, the

credibility of the witnesses, and the weight given to the testimony was within the discretion of

the trial court.").

Finally, we note Plaintiff's proposed construction and interpretation of the RBO's

liquidated damages provision is incongruent. Plaintiff seeks the benefits of the provision, but

only to the extent that it benefits Plaintiff. We replicate that which our colleagues from the

Missouri Court of Appeals, Southern District, succinctly stated:

A party cannot affirm a contract in part, and repudiate it in part. He cannot accept
its benefits on the one hand, while he shirks its disadvantages on the other. He
cannot play fast and loose in the matter. A party will not be allowed to assume
the inconsistent position of affirming a contract in part by accepting or claiming
its benefits, and disaffirming it in part by repudiating or avoiding its obligations or
burdens. A party to a contract cannot claim its benefits where he is the first to
violate it. A party to a contract cannot have the benefit of its provisions which are
favorable to him and ignore its conditions which are to be performed by him.

Hawkins, 897 S.W.2d at 86 (internal citations and quotation marks omitted).

We cannot condone Plaintiff's request. The liquidated damages provision does not

explicitly limit said damages to only $1,500.

C. The Liquidated Damages Provision is Valid and Enforceable and Not a Penalty.

Next, Plaintiff avers the trial court's award of $7,000 in liquidated damages in favor of

Defendant was erroneous because $7,000 was neither a reasonable forecast of Defendant's harm,

nor were Defendant's damages difficult to accurately discern at the time of contracting.

Effectively, Plaintiff attacks both prongs of § 339 of the RESTATEMENT OF CONTRACTS, supra.

We will address both prongs of RESTATEMENT OF CONTRACTS § 339. However, before

proceeding, it is necessary, as discussed, infra, to determine whether Defendant evidenced proof

of "actual harm or damage."

11
 1. Defendant evidenced proof of "actual harm or damage."

In Missouri, before triggering a liquidated damages provision, our courts have

"consistently" held that the party requesting enforcement of the liquidated damages provision

"must show at least some actual harm or damage caused by the breach." Grand Bissell Towers,

Inc., 657 S.W.2d at 379; see also Phillips v. Mo. TLC, LLC, 468 S.W.3d 398, 400 (Mo. App.

S.D. 2015) ("While it is not necessary to actually prove damages in the same amount as stated in

a liquidated damages provision, we have reasoned that without evidence of damages, a liquidated

damages clause actually becomes a penalty and is unenforceable.") (internal citations and

quotation marks omitted). If no damages are evidenced as a result of a breach of contract, the

non-breaching party is entitled to recover nothing more than nominal damages even if the

contract is construed as providing for liquidated damages. Ward v. Haren, 167 S.W. 1064, 1070

(Mo. App. 1914). Although proof of a precise dollar amount is unnecessary, "it nevertheless

must be shown that some harm or damage, in fact, occurred." Valentine's, Inc. v. Ngo, 251

S.W.3d 352, 355 (Mo. App. S.D. 2008) (quoting Goldberg, 672 S.W.2d at 179).

Plaintiff contends that Defendant was not financially harmed by the breach of contract.

In fact, Plaintiff avers that Defendant actually financially benefited from the breach of contract,

and, therefore, no actual harm or damages were evidenced. In support thereof, Plaintiff directs

this court's attention to the testimony of Daniel Schmitt ("Schmitt"), Defendant's owner.

During trial Schmitt testified: (1) the vehicle was originally purchased by Defendant for

$34,475; (2) Defendant invested approximately $10,679.04 to restore the vehicle; and (3) after

Plaintiff's breach, the vehicle was ultimately sold for $65,000. Based upon this testimony,

12
calculations reveal Defendant profited approximately $19,845.96, even after Plaintiff's breach

and before any damages were awarded.4

In order to rebut Plaintiff's claim that Defendant financially benefited as a result of

Plaintiff's breach, Defendant submitted evidence (although scant in nature) Defendant was

financially harmed in the amount of $16,019.85 after Plaintiff's breach. 5 The trial court

acquiesced to the same, finding, relevantly:

65. Plaintiff's failure to take possession of the vehicle resulted in damages to
Defendant including additional costs and expenses, specifically:
1. Costs associated with relisting E-Bay Auction: $592.00
2. Additional advertising costs:
i) Hemmings ads: $749.85
ii) Cars Online ads: $175.00
iii) Classic Cars ads: $165.00
iv) Old Ride ads: $60.00
v) Auta [sic] Buy ads: $83.00
3. Additional Administrative/Office costs for re-marketing, relisting and E-bay:
$425.00
4. Lost Profits: $12,770.00

TOTAL [DEFENDANT] DAMAGES: $16,019.85.6

Assuming, arguendo, there exists substantial evidence to support the trial court's

findings,7 Defendant still profited, at the very least, in the amount of $3,826.11 [$19,845.96 –

4
It should be noted Plaintiff's contract price was $60,000. Thus, had Plaintiff not breached, Defendant would have
only profited in the amount of $14,845.96 .
5
In post-trial motions and, again, on appeal, Defendant summarizes additional damages, in addition to those set
forth in the trial court's judgment, Defendant purportedly incurred due to Plaintiff's breach, totaling $8,726.12. The
trial court's exclusion of these additional alleged damages are presumed to be occasioned by the lack of
substantiation. See Rule 73.01(c) ("All factual issues upon which no specific findings are made shall be considered
as having been found in accordance with the result reached."). The trial court's judgment, in this respect, is found
not to be against the weight of the evidence, unsupported by the evidence, or against the law.
6
The trial court's listed "actual damages" only equates to $15,019.85. For purposes of this appeal, we assume the
trial court's mathematical calculation is correct.
7
We harbor significant reservations over the trial court's factual findings. For the most part, the trial court simply
adopted Defendant's Proposed Findings of Fact and Conclusions of Law as the Judgment. In fact, the trial court's
Judgment reads: "COMES NOW Defendant . . . and for its Proposed Findings of [F]act and Conclusions of Law[.]"
We do not condone such draftsmanship by a trial court, and strongly encourage all trial courts to avoid such a
practice. State v. Griffin, 848 S.W.2d 464, 471 (Mo. banc 1993) ("For obvious reasons, when a court adopts in its
entirety the proposed findings of fact and conclusions of law of one of the parties, there may be a problem with
appearance. The judiciary is not and should not be a rubber-stamp for anyone.").

13
$16,019.85], even after Plaintiff's breach. Guidry v. Charter Commc'n, Inc., 269 S.W.3d 520,

532 (Mo. App. E.D. 2008) ("The proper measure of damages is a question of law.").

"The measure of damages in a breach of contract case is the benefit of the bargain[, and]

[c]ompensation is the value of the performance of the contract." Kincaid Enters., Inc. v. Porter,

812 S.W.2d 892, 900 (Mo. App. W.D. 1991); see also Morehouse v. Behlman Pontiac-GMC

Truck Serv., Inc., 31 S.W.3d 55, 62 (Mo. App. E.D. 2000) ("Damages for breach of contract are

also measured by the benefit of the bargain rule."). "[B]enefit-of-the-bargain damages, also

called lost profits damages, are the 'net profits a plaintiff would have realized' had the contract

not been breached." Catroppa v. Metal Bldg Supply, Inc., 267 S.W.3d 812, 818 (Mo. App. S.D.

2008) (quoting in part Ameristar Jet Charter, Inc. v. Dodson Int'l Parts, Inc., 155 S.W.3d 50, 54

(Mo. banc 2005)). The injured party should be placed in the same position had the contract been

performed. Morehouse, 31 S.W.3d at 62.

Here, but for Plaintiff's breach, Defendant would have merely accumulated additional

profits. Mathematically, the correct equation in calculating Defendant's "benefit-of-the-bargain"

damages is as follows:

$14,845.96 (Defendant's profits had Plaintiff not breached)
– $3,826.11 (Defendant's profits after selling the vehicle for $65,000)
$11,019.85 (lost profits)

Any additional damages awarded to Defendant above and beyond this correctly

calculated loss profits sum ($11,019.85) would thwart the law and place Defendant in a better

position than Defendant "would have enjoyed had the contract been completed on both sides."

Guidry, 269 S.W.3d at 532.

Thus, insomuch as Defendant demonstrated loss profits, Defendant suffered "actual

harm" induced by Plaintiff's breach.

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 2. Prong (1): $7,000 was a reasonable forecast of Defendant's harm.

Under the first prong of RESTATEMENT OF CONTRACTS § 339, a valid and enforceable

liquidated damages clause must embrace a "reasonable forecast of damages." Star Dev. Corp.,

429 S.W.3d at 493. The reasonable forecast of damages "must not be unreasonably

disproportionate to the amount of harm anticipated when the contract was made." Paragon Grp.,

Inc., 878 S.W.2d at 881. "The amount fixed is reasonable to the extent that it approximates the

actual loss that has resulted from the particular breach[.]" RESTATEMENT (SECOND) OF

CONTRACTS § 356, cmt. b. Nevertheless, "[b]y its nature, a liquidated damages clause may

operate to provide the non-breaching party more or less than his actual damages." Burst, 771

S.W.2d at 91–92.

Plaintiff avers the $7,000 amount is not a reasonable forecast of damages to be incurred

by Defendant upon a breach of $60,000 contract. We acknowledge the amorphous language of

the liquidated damages provision could result in an unreasonably disproportionate forecast of

damages, dependent upon the sum of a purchaser's cash deposits, and we gently remind all

purchasers to carefully read the entire contract before signing. Here, however, Plaintiff's cash

deposits equated to only $7,000—or 11.67% of the contract price—and said amount is not

unreasonable under these circumstances. See, e.g., Standard Imp. Co. v. DiGiovanni, 768

S.W.2d 190, 191-92 (Mo. App. E.D. 1989) (liquidated damages clause equal to 30% of home

improvement contract price was valid to terminate contract one month after execution); Taos

Const. Co., Inc., 750 S.W.2d at 525-26 (liquidated damages provision equaling 66% of value of

subcontract was reasonable).

3. Prong (2): The harm caused by the breach was very difficult to accurately
estimate.

15
 Under the second prong of RESTATEMENT OF CONTRACTS § 339, a valid and enforceable

liquidated damages clause necessitates a kind of harm that is difficult to accurately estimate.

Star Dev. Corp., 429 S.W.3d at 492; AAA Unif. & Linen Supply, Inc. v. Barefoot, Inc., 81

S.W.3d 133, 137 (Mo. App. W.D. 2002) ("Liquidated damages clauses are enforceable only if, at

the moment the contract is entered into, the damages would be difficult to ascertain should the

parties breach the contract."). "Where the amount of loss or harm that has been caused by a

breach is uncertain and difficult of estimation in money, experience has shown that the estimate

of a court or jury is no more likely to be exact compensation than is the advance estimate of the

parties themselves." RESTATEMENT OF CONTRACTS § 339, cmt. c. The difficulty of proof of loss

is a matter to be determined at the time of contracting, not the time of breach. RESTATEMENT

(SECOND) OF CONTRACTS § 356, cmt. b.

In the case in bar, the record is replete with evidence that it was, indeed, difficult to

determine Defendant's loss of profits with regard to Defendant's counterclaim for breach of

contract. Defendant, in fact, provided two possible damage awards to the trial court when

Defendant submitted its Proposed Findings of Fact and Conclusions of Law to the trial court.

Likewise, as previously discussed, the trial court erroneously calculated Defendant's harm in

dramatic fashion.

Although the difficulty of proof of loss is adjudged at the time of contracting, if the

parties and the trial court, alike, had such severe quandaries in determining damages at the time

of breach, then, logically, the parties would have had difficulty in estimating harm at the time of

contracting. Thus, the nature of the harm caused by the breach was one that was difficult to

estimate.

16
 Therefore, this court finds the trial court did not err in finding a valid and enforceable

liquidated damages clause and permitting Defendant to retain $7,000 as a result thereof.

Point I is denied.

Point II—Damages Awarded to Defendant

Next, in his second point on appeal, Plaintiff challenges the trial court's award of

$16,019.85 in actual damages in favor of Defendant. Specifically, Defendant maintains that the

trial court's award of both liquidated damages and actual damages was erroneous as a matter of

law.

Under Missouri law, liquidated damages are merely a replacement for recovery of actual

damages. Mihlfeld & Assocs., Inc. v. Bishop & Bishop, L.L.C., 295 S.W.3d 163, 178 (Mo. App.

S.D. 2009). Accordingly, to avoid duplicative damages, "[g]enerally, both liquidated damages

and actual damages may not be awarded as compensation for the same injury." Paragon Grp.,

Inc., 878 S.W.2d at 882. After all, the purpose of a breach of contract cause of action "is to

restore the non-breaching party to the position she would have occupied had the breaching party

fully performed the contract[,]" and cannot be employed to "elevate the non-breaching to a better

position than she would have enjoyed had the contract been completed on both sides." Smith ex

rel. Stephan v. AF & L Ins. Co., 147 S.W.3d 767, 789-90 (Mo. App. E.D. 2004); see also

Perroncello v. Donahue, 859 N.E.2d 827, 832 (Mass. 2007) ("The law of contracts is intended to

give an injured party the benefit of the bargain, not the benefit of the bargain and a windfall.").

As discussed under Point I, the trial court erroneously calculated Defendant's actual

damages, supra. Defendant, in sum, incurred $11,019.85 in actual damages. Thus, if this court

were to deduct the $7,000 in liquidated damages awarded to Defendant, there remains a sum of

$4,019.85 in actual damages for which Defendant was not compensated and for which Defendant

17
sought redress. The issue on appeal is whether Defendant can elect to seek recovery of both

liquidated damages in addition to any and all actual damages over and beyond that which is

contracted for in the liquidated damages provision.

Plaintiff contends that an award of liquidated and actual damages produces duplicative

recovery in favor of Defendant for purposes of the "same injury"—namely, Plaintiff's failure to

pay the contract price and take possession of the vehicle. Defendant, to the contrary, submits

Defendant's award of both liquidated and actual damages was not duplicative, in that the

liquidated damages award was insufficient to make Defendant whole again.

Both Plaintiff and Defendant cite to certain Missouri cases to support their respective

arguments. However, while instructive, we find these cases do not directly answer the question

of whether a party must elect between liquidated damages or actual damages in a breach of

contract cause of action. In the alternative, we find Missouri has long held a party must elect

between either liquidated damages or actual damages, and a party should be prohibited from

collecting both, even if the liquidated damages fails to fully compensate the non-breaching party

for his or her actual damages for the same injury.

In Stillwell v. Temple, 28 Mo. 156 (Mo. 1859), the defendant deposited into the

possession of the plaintiff a certain quantity of stock for purposes of effectuating a real estate

contract. Id. at 159. Pursuant to the written contract, should defendant fail to perform, the stock

was to become the absolute property of the plaintiff for purposes of liquidated damages. Id. at

159-60. The defendant defaulted upon the written contract, and without tendering the stock

back, the plaintiff brought a cause of action to collect certain rent agreed to be paid by the

defendant. Id. at 160. In holding the plaintiff was barred from collecting any further damages

18
beyond that specified in the liquidated damages provision, the Supreme Court of Missouri

elaborately set forth the justifications and policies warranting such a restriction:

The courts have indicated a strong inclination towards that construction which
excludes the idea of liquidated damages and which limits a recovery to
compensation for the real injury; but the rule is almost invariably invoked in favor
of the party who is bound for the penalty, and it is seldom that a party who has
exacted a penalty is heard to ask to be relieved from it. If the defendant was here
seeking to be relieved of a forfeiture, and to redeem the stock on condition of
paying the damages which the plaintiff had suffered by a breach of his covenants,
it would become material to determine whether the stock should be treated as
liquidated damages or as a penalty. But that question, in our opinion, is
immaterial to the decision of this case, for, no matter how it might be determined,
the plaintiff is not entitled to recover. If the parties at the time of making their
agreement, in order to avoid any future dispute as to the amount of damages
which might result from a violation of the contract, agreed upon a definite sum
represented by the stock, the plaintiff must look to the stock, as he had agreed to
do, as a complete and adjusted indemnity; and if, on the contrary, the construction
contended for by the plaintiff is maintained, and it is held that the stipulated
amount is to be regarded as a penalty, then it is not perceived on what principle he
can ask to be relieved from a penalty he exacted himself, and be permitted to
recover beyond the amount of it. Suppose that, instead of the stock of the mining
company, bank stock worth a premium had been deposited to cover the breaches
in advance, or rather that fifteen hundred dollars in money had been given to the
plaintiff, with the express agreement that he should keep it as his own and as a
full compensation for any damage he might suffer by the failure of the defendant
to comply with the agreement; would it be contended that he had a right to hold
on to the money and recover what he could besides? Could he be heard to
complain that he was not fully compensated? In the case supposed the deposit
would be regarded as the maximum of the defendant's liability, and though he
might be relieved from a forfeiture of the whole sum on paying the actual
damages occasioned by his default, the plaintiff would demand nothing beyond it.
The defendant might insist that he should not lose all without reference to the
extent of the injury the party had sustained; but as a penalty is generally fixed at a
sum large enough to cover any probable liability that may be incurred, the
plaintiff would not be allowed to recover beyond it. There can be no reason, if a
person proposes to make a purchase at a future day, why he can not deposit stock,
or any other property, with the stipulation that in the event of being disappointed
in procuring means to complete a purchase, he shall only forfeit the deposit. He
may be willing to lose that much for the chance of making a bargain, but
unwilling or afraid to run the risk of being ruined if he should fail to comply with
the terms of a sale.

The plaintiff insists that the clause of the contract under consideration relates only
to the damages that might be incurred by the failure of the defendant to purchase

19
 the property. As any arrears of rent could easily be computed, there was little
reason for securing it by a penalty, or liquidating the damages that might result
from the nonpayment of it; but the parties chose to contract otherwise, and on
turning to the clause, it will be seen that the obligation to pay rent is indissolubly
connected with the agreement to purchase; and the plaintiff's construction can not
be maintained without doing violence to his language and wresting words from
their context.

Id. at 160-62.; see also Morse v. Rathburn, 42 Mo. 594 (Mo. 1868).

Although over 150 years old, this holding by our Supreme Court has never been

overruled and has been frequently restated, albeit in more modern and succinct language. See,

e.g., Burst, 771 S.W.2d at 91-92 ("By its nature, a liquidated damages clause may operate to

provide the non-breaching party more or less than his actual damages."); Paragon Grp., Inc., 878

S.W.2d at 882 ("both liquidated damages and actual damages may not be awarded as

compensation for the same injury").

In fact, those cases in which the litigants direct this court's attention cite to cases which

are rooted in and can be directly traced back to Stillwell. See Bishop & Bishop, L.L.C., 295

S.W.3d 163 (holding liquidated and actual damages may be recoverable so long as the injuries

are separate); Germany v. Nelson, 677 S.W.2d 386 (Mo. App. S.D. 1984) (holding it was error

for the trial court to award "additional" damages above that set forth in the liquidated damages

provision).

Courts of several sister jurisdictions have reached the same result our Supreme Court set

forth more than 155 years ago. See, e.g., Carlos R. Leffler, Inc. v. Hutter, 696 A.2d 157, 162

(Pa. Super. 1997) ("Further, parties who agree to include a liquidated damages clause in their

contract, and do so properly, cannot later claim entitlement to actual damages; rather, in keeping

with the law of contracts, the parties must be bound by their bargain. This is true whether the

complaint avers that the amount of liquidated damages is insufficient to fully compensate or

20
excessive in light of the actual damage caused."); Se. Land Fund, Inc. v. Real Estate World, Inc.,

227 S.E.2d 340, 343 (Ga. 1976) ("The liquidated damages become the maximum as well as the

minimum sum that can be collected.") (internal quotation marks omitted).

Moreover, the restriction that the non-breaching party elect between liquidated damages

or actual damages stands upon sound public policy. Enforceable liquidated damages provisions

foster certainty for the parties, eradicate the requirement of the non-breaching party to mitigate

damages, and implements that which the parties agreed to in the contract. See Eureka Dev., Inc.

v. Port Jefferson Realty, LLC, 2007 WL 2908179, *3 (E.D. Mo. Oct. 3, 2007) ("In agreeing to a

liquidated-damages provision one, in effect, bargains away a claim that the other party would be

unjustly enriched if the liquidated-damages provisions are enforced without offsetting benefits

received by the other party.") (internal citations omitted).

Here, the trial court awarded Defendant both liquidated and actual damages for the same

injury. Defendant legally retained that sum which was permitted under the liquidated damages

provision. Defendant cannot now complain the liquidated damages provision—in Defendant's

contract drafted by a savvy businessperson—is inappropriate compensation, in that said

liquidated damages are less than the sum of Defendant's actual damages, as both parties shall be

bound by the plain language of their agreement. Therefore, the trial court erred in awarding

Defendant any sum greater than that permitted under the liquidated damages provision,

regardless of the amount of actual damages.

Point II is granted.

21
Point III—Attorney's Fees

Finally, in his third point on appeal, Plaintiff argues the trial court erred as a matter of

law in awarding Defendant $43,033.75 in attorney's fees, which amounted to half of the

attorney's fees Defendant incurred during the pendency of this matter. We strongly agree.

"Missouri courts adhere to the 'American Rule' which states that, ordinarily, litigants

must bear the expense of their own attorney's fees." Lett v. City of St. Louis, 24 S.W.3d 157,

162 (Mo. App. E.D. 2000). Nevertheless, exceptions are permitted where: (1) the fees are

authorized by statute or contract; (2) very unusual circumstances exist so it may be said equity

demands a balance of benefits; (3) the fees result from an individual being involved in collateral

litigation; or (4) in special circumstances, a party's conduct is frivolous, without substantial legal

grounds, reckless, or punitive. Goines v. Mo. Dept. of Soc. Servs., Family Support & Children's

Div., 364 S.W.3d 684, 688 (Mo. App. W.D. 2012).

In the instant matter, the trial court neglected to set forth justifications for its sizable

award of attorney's fees in favor of Defendant. However, in the litigants' briefs, both Plaintiff

and Defendant agree that the only authority upon which the trial court could have possibly

awarded attorney's fees springs from the power afforded under Chapter 407, the Missouri

Merchandising Practices Act. See Section 407.010, et seq.

Pursuant to Section 407.025.1, "[t]he court may, in its discretion, award punitive damages

and may award to the prevailing party attorney's fees, based on the amount of time reasonably

expended, and may provide such equitable relief as it deems necessary or proper." Section

407.025.1 (emphasis added).

22
 First, for purposes of this court's disposition, we assume, arguendo, without deciding,

Defendant is a "prevailing party" for purposes of the fee-shifting clause of Section 407.025.1.8

Second, operating under that assumption, the issue arises as to whether a prevailing-defendant

under the MMPA may be awarded attorney's fees in the same manner as a prevailing-plaintiff.

Defendant insists the plain and ordinary meaning of "prevailing party" does not limit or

prohibit a trial court, pursuant to the discretion afforded thereto, from awarding a prevailing-

defendant attorney's fees under Section 407.025.1. Not only does the plain language of the

statute prohibit such a restriction, but Defendant also argues such an interpretation would

produce a "special law" and would be deemed unconstitutional.

Plaintiff, to the contrary, contends awarding attorney's fees to a prevailing-defendant

contravenes and stifles the legislative intent and purpose of the MMPA. Particularly, Plaintiff

hinges his argument upon the MMPA's "statutory purpose of protecting consumers." Further,

grasping the prospect of private-citizen-plaintiffs forced to pay defendant's attorney's fees,

Plaintiff warns of the detrimental and deterrent effects and consequences said rule would spawn.

This court recognizes that this State's appellate courts have, on numerous occasions,

discussed the propriety of awarding attorney's fees to a prevailing-plaintiff, pursuant to Section

407.025.1. However, this court also acknowledges our appellate courts have yet to explicitly

address the legitimacy of awarding attorney's fees to a prevailing-defendant under the same

statute. See Kawin v. Chrysler Corp., 636 S.W.2d 40, 45 (Mo. banc 1982) (declining to resolve

whether the prevailing-defendant in an MMPA cause of action can be awarded attorney's fees).

8
Whether Defendant can be deemed a "prevailing party" for purposes of Section 407.025.1 "is a question of some
difficulty." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 482 (1990). Inasmuch as this issue was not raised at the trial
court, briefed on appeal, or indispensable for this court's disposition, we leave for future determination whether
Defendant "achieve[d] some of the benefits [it] sought[.]" Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (citations
omitted).

23
 The Missouri Legislature's employ of "prevailing party" in the fee-shifting clause of the

MMPA is far from unique. The United States Congress has, in fact, enacted numerous laws

authorizing courts to award attorney's fees to the "prevailing party" or either party. Such laws

include, but are not limited to, the Civil Rights Attorney's Fee Awards of 1976 (42 U.S.C. §

1988), Employee Retirement Income Security Act of 1974 ("ERISA") (29 U.S.C. § 1132(g)),

Equal Access to Justice Act (28 U.S.C. § 2412(b)), and the Securities Act of 1933 (15 U.S.C. §

77k(e)).

The Supreme Court of the United States has branded the phrase "prevailing party" as a

"term of art." Buckhannon Bd. and Care Home, Inc. v. W. Va. Dept. of Health & Human Res.,

532 U.S. 598, 603 (2001). When the plaintiff is the "chosen instrument" of the statute to

vindicate a policy the legislative body considered the highest priority "a moment's reflection

reveals that there are . . . strong equitable considerations counseling an attorney's fee award" to a

prevailing-plaintiff that are "wholly absent" in the case of a prevailing-defendant. Christiansburg

Garment Co. v. Equal Emp't Opportunity Comm'n, 434 U.S. 412, 418 (1978).

Under United States Supreme Court jurisprudence, requiring a defendant to pay a

prevailing-plaintiff's attorney's fees serves at least two important functions: "such fee-shifting

helps secure enforcement of the underlying statute at issue and increases the costs to defendants

of violations of theses statutes, thereby generating a greater deterrent effect." Newberg on Class

Actions § 15:31 (5th Ed.) (emphasis in original); see also Fox v. Vice, 563 U.S. 826, 833 (2011)

("When a plaintiff succeeds in remedying a civil rights violation, we have stated he serves as a

'private attorney general,' vindicating a policy that Congress considered of the highest priority.

He therefore should ordinarily recover an attorney's fee from the defendant—the party whose

misconduct created the need for legal action. Fee shifting in such a case at once reimburses a

24
plaintiff for what it cost him to vindicate civil rights, and holds to account a violator of federal

law[.]") (internal citations and quotation marks omitted).

To the contrary, under the same United States Supreme Court jurisprudence, requiring a

plaintiff to pay a prevailing-defendant's attorney's fees implicates wholly different policies, in

that enforcement of the underlying statute is absent. Newberg on Class Actions § 15:32 (5th

Ed.). Rather, awarding attorney's fees to a prevailing-defendant should be exercised as a

"penalty" to protect defendants from burdensome litigation and reserved for those rare cases

where the plaintiff pursued vexatious and frivolous matters. Id. See, e.g., Christiansburg

Garment Co., 434 U.S. at 421 (under a cause of action pursued under Title VII of the Civil

Rights Act of 1964, a prevailing defendant may be awarded attorney's fees if "the plaintiff's

action was frivolous, unreasonable, or without foundation, even though not brought in subjective

bad faith"). Hence, under most fee-shifting federal statutes employing "prevailing party," the

general rule "shifts the defendant's fees to the plaintiff on narrower grounds than the plaintiff's

fees may be shifted to the defendant." Newberg on Class Actions § 15:32 (5th Ed.); cf. Fogerty

v. Fantasy, Inc., 510 U.S. 517 (1994) (the plaintiff and defendant should be treated alike for

purposes of attorney's fees under the Copyright Act of 1976).

The fundamental purpose of the MMPA is the protection of customers and consumers.

Berry v. Volkswagen Grp. of Am., Inc., 397 S.W.3d 425, 433 (Mo. banc 2013). "The MMPA is

paternalistic legislation designed to protect those that could not otherwise protect themselves."

Id. (citations omitted). To promote this laudable purpose, the MMPA broadly prohibits false,

fraudulent or deceptive merchandising practices and affords our trial courts remedial measures

(i.e., damages, injunctions, equitable relief, and attorney's fees), "designed not only to remedy

violations of the MMPA, but also prospectively to deter prohibited conduct and protect Missouri

25
citizens." Id. In conjunction therewith, effectuating this legislative purpose is not confined to

the Office of the Attorney General, but private citizens injured by MMPA violations "have a

right to act as 'private attorneys general' for purposes of enforcing it." Hess v. Chase Manhattan

Bank, USA, N.A., 220 S.W.3d 758, 769 (Mo. banc 2007).

With this backdrop, we elect to follow the guidance and interpretation provided by the

United States Supreme Court and find the use of the phrase "prevailing party" in the fee-shifting

statute of the MMPA to be a "term of art." As a term of art, "prevailing party" connotes differing

standards for awarding attorney's fees to plaintiffs as compared to defendants. Insomuch as the

MMPA unambiguously grants private citizens the authority to vindicate the policy and purpose

of the MMPA, "assessing attorney's fees against plaintiffs simply because they do not prevail

would substantially add to the risks inhering in most litigation and would undercut the efforts of

[the Missouri Legislature] to promote vigorous enforcement of the provisions of [the MMPA]."

Christiansburg Garment Co., 434 U.S. at 423. Attorney's fees in favor of the defendant shall be

the extremely rare exception, rather than the rule. Trial courts shall sparingly assess attorney

fees against plaintiffs and only when the defendant demonstrates the plaintiff has pursued

vexatious and frivolous claims that would warrant dismissal of the claims and imposition of

sanctions pursuant to Rule 55.03.

In the case in bar, Plaintiff did not pursue vexatious or frivolous claims. Plaintiff's three

count petition sought redress under the MMPA, common law fraud, and negligent

misrepresentation. Plaintiff's cause of action, although unsuccessful, was reasonable and non-

frivolous.

Therefore, it is unmistakable the trial court abused its discretion in awarding Defendant

any attorney's fees. The award of attorney's fees in favor of Defendant was against the logic of

26
the circumstances and so arbitrary and unreasonable as to shock one's sense of justice. We

reverse the entire award of attorney's fees and court costs awarded to Defendant.9

Point III is granted.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed in part and reversed

in part, consistent with this opinion.

___________________________________
Lisa P. Page, Judge

Robert M. Clayton III, P.J. and
Mary K. Hoff, J. concur.

9
With this court, both Plaintiff and Defendant have filed motions for attorney's fees on appeal. Without further
elucidation, both motions are hereby denied. Each party shall bear their own costs on appeal.

27