Sellers' argument that they were entitled to record the quit claim deed is based upon the premise that Buyers' failure to obtain insurance constituted a default. That argument ignores the well settled principle that a party to a contract cannot claim its benefit where he is the first to materially breach it. See, e.g., Boten v. Brecklein, 452 S.W.2d 86, 92 (Mo.1970); Matt Miller Co., Inc. v. Taylor–Martin Holdings, LLC, 393 S.W.3d 68, 88 (Mo.App.2012); Barnett v. Davis, 335 S.W.3d 110, 112 (Mo.App.2011). A breach of contract is material if the breach relates to a vital provision of the agreement that goes to the substance or root of the agreement.
Under Missouri law, "[t]he materiality of a breach is a question of fact." Matt Miller Co. v. Taylor-Martin Holdings, LLC, 393 S.W.3d 68, 88 (Mo. Ct. App. 2012). As such, we review the district court’s finding that Kinder committed the first material breach for clear error and will reverse only "if upon a review of the entire record [we] form [ ] the definite and firm conviction that a mistake has been committed."
The Court must first determine whether Dr. Siegel's opinions will be useful to the jury in deciding the remaining issue in this matter - specifically, whether Plaintiff's breach was material. Whether a breach was material is a question of fact. Matt Miller Co. v. Taylor-Martin Holdings, LLC, 393 S.W.3d 68, 88 (Mo. Ct. App. 2012). To determine whether a breach is material, the following factors are considered: (1) "the extent to which the injured party will be deprived of the benefit which he reasonably expected"; (2) "the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived"; (3) "the extent to which the party failing to perform or to offer to perform will suffer forfeiture"; (4) "the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances"; and (5) "the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing."
if the breaching party fails to present evidence of the value of the property, but the owner has produced evidence of cost of repair, "the cost of repair or replacement is the appropriate damages measure." Stom v. Saint Clair Corp., 153 S.W.3d 360, 364 (Mo. Ct. App. 2005); see Matt Miller Co., Inc. v. Taylor-Martin Holdings, LLC, 393 S.W.3d 68, 84 (Mo. Ct. App. 2012). A. Cost of Repair
SeeState v. Roll , 942 S.W.2d 370, 374 (Mo. banc 1997) ("This Court presumes that the trial judge knew and followed the law[.]"); Matt Miller Co., Inc. v. Taylor-Martin Holdings, LLC , 393 S.W.3d 68, 82 (Mo. App. S.D. 2012).SeeJaco v. Jaco , 516 S.W.3d 429, 436 (Mo. App. W.D. 2017) ("It bears repeating that we are required to affirm a trial court’s judgment on any basis supported by the record, even if that basis is other than that which is expressed by the trial court.").
Because this "chain of custody" argument is not contained in the point relied on, it "is not properly before us, and we do not address it." Matt Miller Co. v. Taylor-Martin Holdings, LLC , 393 S.W.3d 68, 79 n.5 (Mo. App. S.D. 2012). We address the refused deposition testimony here but will address the exclusion of the requisition form in our analysis of Plaintiffs' third point.
As to Point I, cost to repair or replace was the preferred measure of damages unless Appellants proved that would cause “unreasonable economic waste.” See, e.g.,Kelley v. Widener Concrete Const., LLC, 401 S.W.3d 531, 540–41 (Mo.App. S.D.2013) (contractor's burden to prove that repair cost would result in unreasonable economic waste); Matt Miller Co. v. Taylor–Martin Holdings, LLC, 393 S.W.3d 68, 84 (Mo.App. S.D.2012) (same). The trial court heard the evidence and found that Appellants did not carry this burden; that cost of repair or replacement would not be unreasonable economic waste.
To establish waiver, Plaintiff must show that Defendant intentionally relinquished a known contractual right—here, the right to work free from defects. See Matt Miller Co. v. Taylor–Martin Holdings, LLC, 393 S.W.3d 68, 79 (Mo.App.S.D.2012). “If waiver is implied from conduct, the conduct must clearly and unequivocally show a purpose to relinquish the right.”
Because this case was decided on summary judgment, and the disputed issues involve contract interpretation, we review the circuit court's judgment de novo, with no deference to its decision. ITT Comm. Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Matt Miller Co. v. Taylor–Martin Holdings, LLC, 393 S.W.3d 68, 72 (Mo.App. S.D.2012). The Association argues that the circuit court erred in granting DOC's motion for summary judgment because the Department's interpretation of how state compensatory time operates is inconsistent with the Labor Agreement, and the definition of “state compensatory time” in the Department Manual.