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Spencer Reed Group5/31/2005
to practice law approximately two weeks later; however, the firm elected not to dismiss Wormington, but instead reduced his salary to $35,000 per year. After learning that Wormington had no license to practice and his salary had been lowered, Spencer Reed unilaterally reduced its fee to 25 percent of $35,000, or $8,750. Thereafter, Law Firm paid $2,000 to Spencer Reed. Spencer Reed invoiced Law Firm for the balance of its fee for placing an "associate attorney," but Law Firm refused to pay any additional sum. Spencer Reed then sued for the balance. After a bench trial, a judgment was entered in favor of Spencer Reed for $6,750. Law Firm appeals.
Standard of Review
The standard of review for a court-tried case is governed by Murphy v. Ca rron, 536 S.W.2d 30, 32 (Mo. banc 1976): The judgment will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Neither party requested findings of fact and conclusions of law. Because the trial court did not make specific findings, the trial court is deemed to have made its findings in accordance with the decree entered, and its judgment will be affirmed under any reasonable theory supported by the evidence. R.J.S. Sec., Inc. v. Command Sec. Servs., Inc.,101 S.W.3d 1, 22 ( Mo. App. 2003).
Discussion
Law Firm argues on appeal that Spencer Reed, in referring an individual without a law license for an associate attorney position, failed to provide consideration triggering Law Firm's obligations under the contract; breached the covenant of good faith and fair dealing; and materially breached the contract. Law Firm also argues that there is insufficient evidence to support the judgment and that the judgment is against the weight of the evidence.
Viewing the evidence in the light most favorable to the judgment, it is clear that Spencer Reed materially breached the contract by referring a candidate who was not licensed to practice law. A "material breach" is one where the breach relates to a vital provision (i.e., material term) of the agreement and cannot relate simply to a subordinate or incidental matter. Patel v. Pate, 128 S.W.3d 873, 878 (Mo. App. 2004).
Although denied at trial, Spencer Reed finally admitted at oral argument that their obligation under the contract to furnish candidates for the position of "associate attorney" was to furnish licensed law school graduates. T he condition that any candidate referred to Law Firm be qualified as an attorney was a vital provision to the agreement and not a subordinate or incidental matter. Thus, Spencer Reed materially breached the contract when it referred a non-attorney as a candidate for employment as an associate attorney.
Spencer Reed argues, in the alternative, that Law Firm waived any condition that referred candidates be licensed attorneys. A party may waive any condition of a contract in the party's favor, Bellos v. Winkles, 14 S.W.3d 653, 655 ( Mo. App. 2000), and that waiver may be implied from conduct. Howe v. Lever Bros. Co.,851 S.W.2d 769, 775 ( Mo. App. 1993). However, to rise to the level of a waiver, the conduct "must be so manifestly consistent with and indicative of an intention to renounce a particular right or benefit that no other reasonable explanation of conduct is possible." Id.
Spencer Reed claims that there was substantial evidence indicating that Law Firm agreed to waive any condition that candidates referred be licensed attorneys. The factual basis Spencer Reed points to in support of this contention is Wormington's testimony that, during his interview, he revealed that he had failed the Kansas bar exam and was
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