TERRY A. GUENGERICH and ) 

LORRAINE GUENGERICH, ) 

 ) 

 Plaintiffs-Appellants, ) 

 ) 

v. ) No. SD31479 

 ) Filed: 3-10-14 

KAYLA BARKER and CLARENCE ) 

EDWARD HIGGINS, JR., ) 

 ) 

 Defendants-Respondents. ) 

APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY 

Honorable R. Craig Carter, Associate Circuit Judge 

AFFIRMED AS MODIFIED

 Terry and Lorraine Guengerich (hereinafter referred to individually by their given 

names and collectively as Sellers) appeal from a judgment ordering them to pay damages 

arising out of a contract to sell real estate to Kayla Barker and Clarence Higgins 

(hereinafter referred to individually by their given names and collectively as Buyers). 

The trial court found for Buyers on their counts alleging unjust enrichment and breach of 

contract. Sellers contend: (1) the trial court erred in finding that Sellers had been 

unjustly enriched; (2) the trial court erred in finding that Sellers had materially breached 

the contract; and (3) Buyers failed to present substantial evidence to support certain items 
2

awarded as damages. Because the trial court correctly found for Buyers on their breach 

of contract count, they were entitled to recover damages on that count. Since it is clear 

from the judgment that the damages from the breach of contract duplicated the amounts 

awarded on the unjust enrichment count, any error as to the latter count was immaterial 

and need not be addressed. We agree with Sellers, however, that the trial court erred in 

two respects in assessing Buyers’ damages. Pursuant to Rule 84.14, we affirm the 

judgment as modified.1

I. Standard of Review 

 We will affirm the decision in a court-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. Greenstreet v. Fairchild, 313 S.W.3d 163, 168 (Mo. App. 2010). 

The trial court’s judgment is presumed correct, and Sellers have the burden of proving it 

erroneous. Surrey Condominium Ass’n, Inc. v. Webb, 163 S.W.3d 531, 535 (Mo. App. 

2005). An appellate court is primarily concerned with the correctness of the trial court’s 

result, rather than the route taken by the trial court to reach that result. Business Men’s 

Assur. Co. of America v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999). Therefore, 

we will affirm the trial court’s judgment under any reasonable theory supported by the 

evidence, even if the reasons advanced by the trial court were wrong or insufficient. 

Ewanchuk v. Mitchell, 154 S.W.3d 476, 481 (Mo. App. 2005); Jackson v. Cannon, 147 

S.W.3d 168, 173 (Mo. App. 2004). 

 In conducting our review, “we accept as true the evidence and permissible 

inferences favorable to the prevailing party and disregard contrary evidence and 

 

1

 All references to rule are to Missouri Court Rules (2013). 
3

inferences.” Gordon A. Gundaker Real Estate Co., Inc. v. Maue, 793 S.W.2d 550, 551 

(Mo. App. 1990). “We defer to the trial court’s determinations regarding credibility; 

however, we review issues of law de novo.” Greenstreet, 313 S.W.3d at 169. The 

following summary of the facts has been prepared in accordance with these principles. 

II. Factual and Procedural Background 

 Sellers owned 71 acres of land in Douglas County. The property consisted of two 

adjoining parcels of land, separated by a county road. Sellers had orally leased both 

parcels of land to Rick and Nicole Dehaan (the Dehaans) to pasture their cattle for a perhead monthly fee. 

 Sellers decided to sell the parcel of land lying south of the county road. This 

fenced parcel, which Sellers believed to be 20 acres in size, contained a 3,800-square-foot 

home and a barn. Shortly after Buyers moved from Colorado to Missouri, they offered to 

purchase this parcel of land (hereinafter referred to as the 20-acre parcel) from Sellers. 

Buyers had a herd of 15 horses and needed a location suitable for that number of animals. 

Buyers’ offer included, inter alia, the following provisions: (1) the purchased property 

would be financed with a seller-financing agreement; (2) Buyers would execute a 

promissory note for the purchase price, bearing interest at 51⁄2 percent to Sellers; (3) 

Sellers would provide title insurance; (4) the washer and dryer would be left in the home 

and included in the purchase price; (5) Sellers would provide a one-year home warranty; 

(6) Sellers would provide a termite clearance letter; and (7) Buyers would be entitled to 

possession of the purchased property at the time of closing and a right of first refusal on 

the adjoining 51 acres across the county road (hereinafter referred to as the 51-acre 
4

parcel). Buyers also offered to maintain the 51-acre parcel in exchange for being able to 

use it to pasture their horses. This offer was made on September 4, 2009. 

 Sellers’ agent prepared a counteroffer. This counteroffer proposed that the 

interest rate on the promissory note be set at 6 percent and provided a right of first refusal 

on the 51-acre parcel. The counteroffer did not mention the use of the 51-acre parcel 

prior to exercise of the right of first refusal. The counteroffer also stated that any 

“unchanged terms” remained part of the new offer. Buyers accepted the modifications 

and signed the counteroffer. 

 The closing on the purchased property was conducted on September 24, 2009. At 

that time, Buyers were not provided with a home warranty, a title insurance policy or a 

termite clearance letter. Sellers did execute an affidavit stating that there were no leases 

or encumbrances on the purchased property. At the closing, Sellers and Buyers executed 

a contract for deed. Pursuant to that contract, Buyers paid $50,000 down and executed a 

promissory note for the balance of the purchase price in the amount of $250,000 at 6 

percent interest. The monthly purchase price payments were $1,791.08 to be paid on the 

25th of each month. The agreement provided that Sellers would deposit a warranty deed 

in escrow and that Sellers would provide a title insurance commitment. The warranty 

deed would be delivered to Buyers upon payment of the full purchase price. Buyers 

executed a quit claim deed to Sellers to be placed in escrow. The quit claim deed would 

be delivered to Sellers upon default by Buyers. The contract for deed did not contain an 

integration clause or a statement that it represented the entire agreement of the parties. 

The contract for deed further contained the following two provisions regarding taxes and 

insurance: 
5

TAXES: 

SELLER shall annually receive the annual real estate tax statement and 

shall forward to BUYER the amount of real estate taxes due. BUYER

shall forward payment to SELLER by December 15th of each year. 

Failure of BUYER to reimburse SELLER shall constitute default and the 

escrow agent is authorized to deliver to SELLER the Quit Claim Deed 

heretofore mentioned. 

INSURANCE:

BUYER shall carry insurance equal to or in excess of the unpaid balance 

of this agreement, with a loss-payable clause in favor of SELLER. IT IS 

AGREED that the obligation to keep the premises insured is continuous 

throughout the pendency of this agreement. IT IS AGREED that in the 

event BUYER shall fail to keep the premises insured that same shall 

constitute default and that SELLER shall, at their option, obtain insurance 

and the ESCROW AGENT is authorized to deliver to SELLER the QuitClaim Deed heretofore mentioned. 

Buyers provided a receipt for insurance coverage at closing. 

 When Buyers brought their horses to the purchased property on September 24th

, 

there was a herd of cows and a bull on the 20-acre parcel. The 51-acre parcel also had 

cattle grazing on it. Nicole Dehaan, to whom the cattle belonged, stopped by the 20-acre 

parcel on the 24th and said that the Dehaans had leased that property from Sellers on a 

month-to-month basis to pasture her cattle. Buyers placed their horses in an enclosed, 

one-acre paddock on the 20-acre parcel. There was not sufficient pasture in that 

enclosure to feed the horses, so Buyers were required to purchase hay for the animals. 

 Sellers told Buyers that they would have to execute a written lease on the 51-acre 

parcel to “trump” the Dehaans’ oral lease on the 20-acre parcel and thereby authorize the 

removal of her cattle from that land. Buyers signed a written agreement leasing the 51-

acre parcel for $200 per month so they could get the Dehaans’ cattle off the 20-acre 
6

parcel. Buyers also learned from the county assessor that the 20-acre parcel purchased by 

Buyers included some acreage beyond the fence. 

 On October 4, 2009, Buyers called the sheriff’s department because the Dehaans’ 

cattle were still on the 20-acre parcel. The sheriff’s deputy who responded to Buyers’ 

call examined some paperwork provided by the Deehans and determined that they had 

until November 1st to remove the cattle from the 20-acre parcel. The cattle remained on 

Buyers’ land until that date. From the date of closing through November 1st, Buyers 

spent $400 on hay to feed their horses. After the cattle were removed, Buyers still had to 

purchase additional feed for the horses because the land had not recovered enough to 

provide sufficient grazing for those animals. 

 When Buyers moved into the home, they discovered that Sellers had left some 

furniture and other personal property in the home. Additionally, the washer and dryer 

had been replaced with an older washer and dryer that did not work. Buyers rented a 

washer and dryer set. By the time of trial, Buyers had spent $3,145 to rent those 

appliances. Buyers also were concerned about the home warranty because they wanted to 

make a claim about the washer and dryer on the home warranty. When Buyers spoke 

with Sellers’ agent about the issue, she said she needed a check for $509 right then to 

activate the home warranty. Buyers paid that amount to the escrow company so that they 

could get the home warranty implemented. 

 Meanwhile, the check Buyers had used to pay the insurance premium had been 

dishonored because of a bank error. A cancellation notice was sent to Sellers on October 

23, 2009. Sellers did not forward that information to Buyers, and Buyers never received 

that notice. 
7

 By December 15th, Buyers had not received any documentation about the tax bill. 

On December 28th, Terry came to Buyers’ home and demanded the tax money. Buyers 

refused because they thought those taxes had been paid at closing. Terry became angry, 

and eventually Buyers asked him to leave. 

 On December 31, 2009, the attorney at the escrow company sent Buyers a default 

letter. The body of that letter stated: 

Pursuant to a request from [Sellers], this letter is to serve as notification 

that you are in default in the terms under the above mentioned Contract for 

Deed. The grounds for default are failure to keep insurance on property 

and failure to pay the 2009 taxes to [Sellers] by December 15th deadline 

listed in the Contract for Deed. 

If you refute the grounds of the default you must contact our office within 

twenty (20) days from receipt of this notice. If I do not hear from you 

within the allotted time, I will be authorized to deliver the Quit Claim 

Deed held in escrow to [Sellers]. Delivery of this Quit Claim Deed 

releases any claim you have in the property held under the Contract for 

Deed. 

 The letter was sent certified mail, and Buyers received it on January 5, 2010. On 

January 14, 2010, Kayla responded to the notice in a seven-page letter with attachments. 

Kayla sent copies of that letter to the escrow company, Buyers’ real estate agent and 

Terry. In the letter, Kayla explained that her mother had wired $51,000 to the escrow 

company prior to closing. Kayla also explained why they believed the 2009 taxes had 

been paid at closing. She included a check for the amount of the 2009 taxes with the 

copy of the letter that she sent to Terry. The letter also explained that Buyers had not 

received the documentation regarding the tax bill to which they were contractually 

entitled. Kayla further noted that, even after speaking with Terry on December 28th, she 

had to clarify the amount of tax due with the assessor’s office. This letter also discussed 
8

the issue with the cattle, the lack of a termite clearance letter, the lack of a home 

warranty, and Buyers’ efforts to remedy the insurance issue. 

 The escrow company received Buyers’ letter on January 20, 2010. The quit claim 

deed was recorded on January 22, 2010. The escrow company made no attempt to 

address Buyers’ complaints prior to filing the quit claim deed. Sellers instructed the 

escrow company not to deliver the quit claim deed on Buyers at that time. 

 By February 5, 2010, knowing that the quit claim deed had been recorded, Sellers 

obtained insurance for the property. The parties then spent about two months attempting 

to renegotiate the real estate sales contract. During this time, Sellers did not inform 

Buyers that the quit claim deed had been recorded, and Sellers accepted a payment on the 

contract for deed from Buyers. Sellers wanted Buyers to give back the property behind 

the fence in exchange for a change in the due date for the monthly purchase price 

payments. Even though such an arrangement would have left Buyers with about 12 acres 

instead of 20, Terry refused to adjust the purchase price. These negotiations were not 

fruitful. Eventually, Buyers received notice that their insurance policy had been canceled 

because the quit claim deed had been filed. 

 On May 12, 2010, Sellers filed a petition against Buyers seeking ejectment and 

rent. Buyers filed a counterclaim that included a count for breach of contract, a count for 

unjust enrichment, and two counts alleging fraudulent misrepresentation. 

 A two-day bench trial was conducted in April 2011. The trial court found, inter 

alia, that “[Sellers] failed to have the property vacant at the time of closing, swapped the 

washer and dryer for less-valuable models, refused to purchase a home warranty, and 

failed to properly deliver the yearly tax bill, all of which were their contractual duties.” 
9

The court also found that Sellers had failed to deliver possession of the 20-acre parcel to 

Buyers because the Dehaans’ cattle were on the property. Because Buyers no longer 

wanted the 20-acre parcel and consented to the entry of a judgment in Sellers’ favor on 

their ejectment count, the trial court found for Sellers and awarded them $16,150 in rent. 

The court concluded that it was Sellers’ actions which caused the real estate transaction 

to fail. The court awarded $59,792.09 in damages to Buyers on their unjust enrichment 

count.2 The court also found that Sellers had materially breached the contract, but Buyers 

were only awarded $12,154 in damages on that count to avoid a double recovery.3 After 

subtracting Sellers’ damages from the total amount of Buyers’ damages, the trial court 

entered a net judgment in favor of Buyers in the amount of $55,796.09. Sellers appealed. 

III. Discussion and Decision 

 In Point I, Sellers contend the trial court erred in finding for Buyers on their 

unjust enrichment count. In Point II, Sellers contend the trial court erred in finding that 

they had materially breached the contract. In Point III, Sellers contend there was no 

substantial evidence to support the award of damages. For ease of analysis, we will 

address Sellers’ points out of order. 

 

2

 Those damages consisted of: (1) $49,836.69 paid by Buyers at closing; (2) 

installment payments in the amount of $8,955.40; and (3) $1,000 paid by Buyers on the 

lease agreement. 

3

 Allowing Buyers to recover the same damages via a breach of contract and an 

unjust enrichment theory would violate Missouri’s rule that a party cannot be 

compensated for the same injury twice. See, e.g., MECO Systems, Inc. v. Dancing Bear 

Entertainment, Inc., 42 S.W.3d 794, 810-11 (Mo. App. 2001) (holding that a party could 

not recover the same damages via a breach of contract and unjust enrichment theory). 

The trial court recognized and applied that rule in the judgment by stating that, “for the 

breach of contract claim, as the Court has already granted the [Buyers] damages on their 

unjust enrichment count, the Court must not grant duplicate damages.” 
10

Point II 

 In Sellers’ second point, they contend the trial court misapplied the law by finding 

that Sellers had materially breached the contract. Sellers argue that: (1) they were 

entitled to file the quit claim deed based on the provisions of the real estate contract; and 

(2) their own breaches of contract were not material. We disagree. 

 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. G & J Holdings, LLC v. 

SM Properties, LP, 391 S.W.3d 895, 903 (Mo. App. 2013). The materiality of a breach 

is a question of fact. Matt Miller Co., 393 S.W.3d at 88; Classic Kitchens & Interiors v. 

Johnson, 110 S.W.3d 412, 417 (Mo. App. 2003). 

 Here, the trial court found that Sellers were in breach of the real estate sales 

contract immediately after the closing by: (1) failing to leave the house vacant; (2) 

switching out the washer and dryer for less valuable models; (3) refusing to purchase a 

home warranty as they promised; and (4) failing to remove the Dehaans’ cattle by the 

date of closing. The first and fourth listed breaches tended to deprive Buyers of their 

rightful possession of the property, which goes to the very substance or root of the 

agreement. The third breach deprived Buyers of their home warranty, which was another 
11

valuable benefit of the real estate sales contract. We reject Sellers’ argument that their 

breaches of contract were not material. 

 Assuming arguendo that the foregoing breaches by Sellers were not material, our 

disposition of this point would not change. Sellers argue that they were entitled to file 

the quit claim deed because Buyers failed to keep the property insured. That argument 

fails because the trial court implicitly found that: (1) Sellers waived their right to place 

Buyers in default based on that breach; and/or (2) Buyers’ untimely performance in 

obtaining insurance was excused because it was the result of a bank error. 

 With respect to the first issue, “[t]here is no doubt that any default in the 

performance of a contract may be waived.” Donahue v. State, 655 S.W.2d 642, 645 

(Mo. App. 1983). Whether a party has waived a right to declare a forfeiture is a question 

of fact best left to the trial court. Langdon v. United Restaurants, Inc., 105 S.W.3d 882, 

890 (Mo. App. 2003). 

 Here, the trial court found that a bank error caused Buyers’ check to be 

dishonored. Sellers learned of the cancellation of Buyers’ insurance on October 23, 

2009. Sellers did not forward that information to Buyers. After approximately two 

months elapsed, Sellers then demanded that Buyers pay the property taxes on the 20-acre 

parcel, which is inconsistent with an intention to declare a default. The December 31st

letter also did not declare a default. Instead, it gave Buyers 20 days to respond to the 

allegations of default and implicitly offered them an opportunity to cure. Buyers’ timely 

response tendered payment of the property taxes, and explained why the insurance had 
12

lapsed and how they intended to remedy that problem.

4

 Notwithstanding that response, 

and before expiration of the 20-day period granted in the letter, Sellers filed the quit 

claim deed. Buyers were not notified of that event, and Sellers continued to treat the real 

estate contract as being in effect. The parties continued to discuss a renegotiation of the 

contract, and Sellers accepted one monthly installment on the contract from Buyers. 

Under these circumstances, the trial court did not err in implicitly finding that Sellers 

could not rely upon Buyers’ failure to maintain insurance to declare a default because the 

Buyers’ breach was excused or because Sellers waived or were estopped from relying 

upon that ground. See, e.g., Langdon, 105 S.W.3d at 890; Rietsch v. T.W.H. Co., Inc., 

702 S.W.2d 108, 117-18 (Mo. App. 1985); Fieser Services, Inc. v. Saline Sewer Co., 643 

S.W.2d 92, 93 (Mo. App. 1982); Johnson v. Farrow, 594 S.W.2d 655, 658 (Mo. App. 

1980). Point II is denied. 

Point I 

 In Sellers’ first point, they contend the trial court misapplied the law in finding 

that Buyers had been unjustly enriched. For the reasons that follow, it is unnecessary to 

address this point. 

 “[A]ppellate courts are primarily concerned with the correctness of the result 

reached by the trial court[.]” Hunt v. Estate of Hunt, 348 S.W.3d 103, 108 (Mo. App. 

2011). Thus, “[a] correct result will not be disturbed on appeal merely because the trial 

 

4

 Sellers were required to provide notice of default to Buyers even though the 

contract was silent on that issue. As explained in Long v. Smith, 776 S.W.2d 409 (Mo. 

App. 1989), “[f]orfeitures are not favored and, if the contract does not provide for it or if 

time is of the essence but has been waived, it is necessary that the vendor give the vendee 

notice of his intention to forfeit the contract before the vendee may be deprived of 

equitable relief against the forfeiture.” Id. at 414. Assuming time was of the essence 

with respect to insurance, Sellers’ conduct furnished clear evidence of their intent to 

waive that requirement. 
13

court gave a wrong or insufficient reason for its judgment.” Harris v. Desisto, 932 

S.W.2d 435, 443 (Mo. App. 1996). 

 Assuming arguendo that the trial court erred in granting relief on the unjust 

enrichment count, the error did not materially affect the outcome. We have already 

determined that the trial court properly found for Buyers on their breach of contract 

count. It also is clear from the judgment that Buyers would have been awarded the same 

total amount of damages, even if the trial court had found for Sellers on the unjust 

enrichment count. Rule 84.13(b) states that “[n]o appellate court shall reverse any 

judgment unless it finds that error was committed by the trial court against the appellant 

materially affecting the merits of the action.” Id. Because any error the trial court may 

have committed with respect to the unjust enrichment count is immaterial, Point I is 

denied. See Harris, 932 S.W.2d at 443; Rule 84.13(b). 

Point III 

 In Sellers’ third point, they contend the trial court erred in awarding various types 

of damages to Buyers because the evidence was insufficient to support those awards. 

Sellers argue that: (1) the trial court made a mathematical error with respect to the 

amount of Buyers’ down payment; (2) the court should not have awarded $1,000 that 

Buyers paid to lease the 51-acre parcel; (3) the court should not have awarded Buyers the 

$500 they paid for horse feed; (4) the court should not have awarded the rental cost of the 

washer and dryer because it was not the proper measure of damages and included costs 

that accrued after forfeiture; and (5) the court should not have awarded $8,000 to Buyers 

to repay a first-time homebuyers’ tax credit because it was uncertain to occur and would 

not cause a loss even if repaid. 
14

 Substantial evidence is evidence “which a reasonable mind would accept as 

sufficient to support a particular conclusion, granting all reasonable inference[s] which 

can be drawn from it.” Catroppa v. Metal Bldg. Supply, Inc., 267 S.W.3d 812, 817 (Mo. 

App. 2008) (alteration in original). “The trial court’s findings related to actual damages 

are entitled to great weight on appeal and will not be disturbed unless the damages 

awarded are clearly wrong, could not have been reasonably determined, or were 

excessive.” Williams v. Williams, 99 S.W.3d 552, 557 (Mo. App. 2003). Furthermore,

“[i]f accepted as true by the fact trier, the testimony of a single witness is sufficient to 

establish any fact, including the amount of damages.” McClelland v. Williamson, 627 

S.W.2d 94, 98 (Mo. App. 1982); see also Roark Printing, Inc. v. Worm World, Inc., 974 

S.W.2d 613, 615 (Mo. App. 1998). 

 Sellers’ first complaint is that the trial court erred in awarding $49,836.69 to 

Buyers to reimburse them for their down payment. A purchaser’s damages in an action 

for breach of a contract to sell land generally are measured by the difference between the 

unpaid portion of the purchase price and the value of the land at the time the contract was 

to be completed. See, e.g., Wilt v. Waterfield, 273 S.W.2d 290, 296 (Mo. 1954); Wooten 

v. DeMean, 788 S.W.2d 522, 527 (Mo. App. 1990). This measure of damages does not 

apply, however, when the vendor retains the land and the contract is rescinded. Snowden 

v. Gaynor, 710 S.W.2d 481, 487 (Mo. App. 1986). In the latter situation, Missouri courts 

have relied on § 373 of the Restatement (Second) of Contracts. Kim v. Conway & Forty, 

Inc., 772 S.W.2d 723, 727 (Mo. App. 1989). When a purchaser proves a breach of 

contract, but nonetheless relinquishes the property to the seller after a period of 

occupation, the purchaser is entitled to recover: (1) any purchase price payments; (2) 
15

other expenses incurred in reliance on the contract; (3) reduced by an amount 

representing the reasonable value of the use of the property for the time the purchaser 

was in possession. Snowden, 710 S.W.2d at 488. 

 The closing documents show that Buyers paid $49,327.69 in cash at closing. The 

trial court appears to have made a mathematical error by adding the later $509 home 

warranty payment to the down payment figure. The trial court also awarded $509 for the 

home warranty when discussing Buyers’ breach of contract claim. As Buyers 

acknowledge, a double recovery is not permitted. See Catroppa, 267 S.W.3d at 817; 

MECO, 42 S.W.3d at 810-11. Consequently, it was error for the trial court to award the 

$509 twice, and the appropriate amount for the award based on the down payment should 

have been $49,327.69. This prong of Sellers’ argument has merit. 

 Sellers’ second complaint is that the trial court erred in awarding Buyers $1,000 

as reimbursement for the amounts they paid to lease the 51-acre parcel. Sellers argue that 

these payments should not have been awarded because they involved a separate piece of 

property. We disagree. When Buyers brought their horses to the 20-acre parcel on 

September 24th, the Dehaans’ cattle herd was on the property. Sellers told Buyers that 

they would have to sign a written lease on the 51-acre parcel to “trump” the Dehaans’ 

oral lease on the 20-acre parcel and get their cattle removed from that land. Therefore, 

Buyers’ expenditure of $1,000 to lease the 51-acre parcel was directly caused by Sellers’ 

breach of contract in not placing Buyers in full possession of the 20-acre parcel. This 

prong of Sellers’ argument lacks merit. 

 Sellers’ third complaint is that the trial court erred in awarding Buyers the $500 

they paid for horse feed because it was not based upon any changed condition in the land. 
16

That argument ignores the evidence favorable to the judgment. As noted above, the 

Dehaans’ cattle were on the 20-acre parcel when Buyers took possession. Because 

Sellers were honoring the Dehaans’ oral lease of Buyers’ property, they had to place their 

horses in an enclosed, one-acre paddock on the 20-acre parcel. There was not sufficient 

pasture in that enclosure to feed the horses, so Buyers were required to purchase hay for 

the animals. After the cattle were removed, Buyers still had to purchase additional feed 

for the horses because the land had not recovered enough to provide sufficient grazing for 

those animals. Thus, Buyers’ expenditure of money for horse feed was directly caused 

by Sellers’ breach of contract in not placing Buyers in full possession of the 20-acre 

parcel. This prong of Sellers’ argument lacks merit. 

 Sellers’ fourth complaint is that the trial court erred by awarding Buyers the 

amount they spent to rent a washer and dryer. Sellers argue that the award is not 

supported by the evidence because the correct measure of damages should have been the 

fair market value of the appliances. We disagree. Viewed most favorably to the 

judgment, Buyers proved the following facts: (1) the real estate sales contract provided 

that the washer and dryer would be left in the home and included in the purchase price; 

(2) when Buyers took possession of the house, the washer and dryer had been replaced 

with an older washer and dryer that did not work; (3) for that reason, Buyers rented a 

washer and dryer set by the week; and (4) as of the date of trial, Buyers had paid $3,145 

to rent those appliances. Therefore, the trial court’s award was supported by substantial 

evidence. All of that evidence was admitted without objection. Sellers simply took the 

position that the washer and dryer had not been switched, as Buyers contended. The trial 

court resolved that factual dispute in favor of Buyers. So far as we can determine from 
17

the record before us, Sellers’ current argument that the trial court used the wrong measure 

of damages was not advanced below and is being made for the first time on appeal. 

Therefore, it is not preserved for appellate review. See Arnold v. Minger, 334 S.W.3d 

650, 653-54 (Mo. App. 2011) (appellant waived any argument that the adverse party’s 

testimony constituted an improper measure of damages by not objecting at trial); 

Waldroup v. Dravenstott, 972 S.W.2d 364, 371 (Mo. App. 1998) (the appellant’s failure 

to object to evidence about the inflationary rate of lumber allowed the trial court to 

include the inflationary rate in its damages award). An appellate court will not convict a 

trial court of error with respect to an issue that was not put before it to decide. Arnold, 

334 S.W.3d at 654; Baker v. Gonzalez, 315 S.W.3d 427, 435 (Mo. App. 2010). This 

prong of Sellers’ argument lacks merit. 

 Sellers’ fifth complaint is that the court should not have awarded $8,000 to 

Buyers to repay a first-time homebuyers’ tax credit because it was uncertain to occur and 

would not cause a loss even if repaid.5

 We agree with the latter part of that argument. As 

noted above, Buyers opted to seek rescission of the purchase contract.6 Therefore, they 

were entitled to recover their purchase price payments and any other expenses incurred in 

reliance on the contract. See Snowden, 710 S.W.2d at 488. The first-time homebuyers’ 

tax credit does not fall into either category. Additionally, Buyers were only able to claim 

this tax credit because they made a qualifying home purchase. It was Buyers’ election to 

 

5

 The recapture provisions for the first-time homebuyer’s credit are found in 26 

U.S.C. § 36(f) (2010); see Woods v. C.I.R., 137 T.C. 159, 164 (U.S. Tax Ct. 2011). At 

trial, Kayla testified that the IRS told Buyers to repay the tax credit because they only 

owned the home for three to four months. 

6

 The purpose of rescission is to restore the parties to the status quo that existed 

before they entered into the contract. See Ehlert v. Ward, 588 S.W.2d 500, 503 (Mo. 

banc 1979); Patel v. Pate, 128 S.W.3d 873, 878 (Mo. App. 2004). 
18

rescind that caused them to no longer qualify for the tax credit. Therefore, it was error 

for the trial court to require Sellers to pay $8,000 as damages so that Buyers could repay 

the first-time homebuyers’ tax credit. This prong of Sellers’ argument has merit. 

 “In the interest of judicial economy, this Court may exercise its judicial 

prerogative to enter the judgment the trial court should have entered.” Lynn v. TNT 

Logistics North America, Inc., 275 S.W.3d 304, 312 (Mo. App. 2008); see Rule 84.14. 

The judgment is modified to reduce Buyers’ damages to the amount of $47,287.09. In all 

other respects, the judgment is affirmed. 

JEFFREY W. BATES, J. – OPINION AUTHOR 

ROBERT S. BARNEY, Sr. J. – CONCUR 

DANIEL E. SCOTT, J. – CONCUR IN PART AND DISSENT IN PART 
19

TERRY A. GUENGERICH and ) 

LORRAINE GUENGERICH, ) 

) 

Plaintiffs-Appellants, ) 

) 

v. ) No. SD31479 

) 

KAYLA BARKER and CLARENCE ) 

EDWARD HIGGINS, JR., ) 

) 

Defendants-Respondents. ) 

OPINION CONCURRING IN PART AND DISSENTING IN PART

 I would reverse the $3,145 awarded to Buyers for renting a washer and dryer by 

the week for some 17 months, and remand for further proceedings on that issue.7 Cases 

cited by the principal opinion (and cases cited in those cases) do not persuade me that 

Sellers have waived their well-based complaint that this award was improperly calculated 

and excessive. I concur in the principal opinion in all other respects. 

DANIEL E. SCOTT, J. – SEPARATE OPINION AUTHOR 

 

7

See Cason v. King, 327 S.W.3d 543, 554 & n.12 (Mo.App. 2010); Boyd v. 

Lollar, 985 S.W.2d 403, 406 (Mo.App. 1999). Thus, and purely as a procedural 

preference, I also would have the trial court make the other reductions indicated by the 

principal opinion, as opposed to this court doing so under Rule 84.14.