CBAM LLC v. ALPS ACQUISITIONS LLC (2026)

Introduction

The buyer, Defendant Alps Acquisitions, LLC, appeals the judgment entered by the Circuit Court of the City of St. Louis against Alps and in favor of the seller, Plaintiff CBAM, LLC, following a bench trial in this dispute over a failed real estate sale contract. Alps challenges the trial court's determinations that Alps breached the sale contract, and committed fraudulent misrepresentation and slander of title, along with the trial court's award of a total of $730,663.62 in damages to CBAM. We affirm the trial court's judgment.

In addition, CBAM, as the prevailing party in the action for breach of contract and slander of title, seeks attorney's fees on appeal as provided in the parties’ contract and as a measure of damages for slander of title. We award attorney's fees on appeal in the amount of $46,555.50 to CBAM as the prevailing party.

Factual and Procedural Background

Viewing the evidence in the light most favorable to the judgment, Day v. Hupp, 528 S.W.3d 400, 411 (Mo. App. E.D. 2017), the following evidence was adduced at trial.

CBAM owns the commercial real property comprised of two contiguous parcels at 3130 Chouteau Avenue and 3123 LaSalle Avenue in the City of St. Louis (“the Chouteau Property”). On November 25, 2019, Alps, acting through its corporate representative Sidarth Chakraverty, executed a commercial sale contract to purchase the Chouteau Property from CBAM for $1,400,000. The Chouteau Property housed Picturesque Graphics, a screen printing/graphic design company and sole tenant of the Chouteau Property. CBAM and Picturesque Graphics are both owned by Carl McDowell. At the time of the contract, Picturesque Graphics had outgrown the Chouteau Property's physical limitations and needed a larger building. Mr. McDowell began searching for a larger replacement property and placed the Chouteau Property on the market.

The goal of securing a replacement property for Picturesque Graphics was communicated to Alps and to each party's broker and banker. Exhibit 3, an email dated November 7, 2019—almost three weeks prior to contract execution—from Alps’ broker to Mr. Chakraverty stated, “Sid, as a side note, please remember he [Mr. McDowell for CBAM] said he's willing to lease back for a year until he locates or builds the perfect building.” CBAM's broker testified he informed Alps’ broker that “[m]y client is looking for 1.4 million. It's part of his strategy to upsize to a different building, and that's what he wants.” CBAM's broker continued, “I made it clear from the beginning” to Alps and its brokers that “the reason [Mr. McDowell] was selling was to move to a larger facility—he needed the space to grow his business—and that he needed to take the cash out of his current building to be able to put into the new building and business, and this included retooling his operation as well.” (emphasis added).

To allow sufficient time to locate a replacement property and transition Picturesque Graphic's business in stages, Mr. McDowell specifically required the special terms and conditions set forth in section 23.2 of the sale contract. Section 23.2 was a post-closing lease-back provision that allowed CBAM to lease the Chouteau Property for nine months at $8,500 per month plus all triple net charges.¹ The contract further provided an option for an additional 12-month lease-back at the same rent and triple net charges, with either party able to terminate the lease extension upon 120 days’ notice. Alps was to draft a lease in accordance with the terms set forth in the sale contract for CBAM's review within 15 days of contract execution, and the parties were to execute the lease prior to closing. CBAM's broker testified that Alps agreed to the special lease provisions included in the sale contract because “[t]hey [Alps] weren't gonna move on the property immediately anyway in terms of whatever they were going to do with it, they expressed that. And we left with everybody OK on those terms and conditions.”

CBAM looked at numerous properties, and identified four that could meet Picturesque Graphics’ needs for the relocation and expansion of its business. About 10 days after executing the sale contract, CBAM identified a property on Pagedale Industrial Court (“the Pagedale Property”) that it believed would be the best fit. The Pagedale Property was the only one of those properties CBAM identified that was known to be listed for sale at the time of trial. The list price of the Pagedale Property in December 2019 was $795,000, and following sale of its Chouteau Property, CBAM planned to obtain a $1,000,000 loan to purchase and expand the Pagedale Property at an interest rate of 3.5 percent for 15 years.

Following execution of the contract and deposit of the initial $15,000 earnest money with the title company, Alps required two amendments to the contract: the first on January 9, 2020 and the second on February 2, 2020. The first amendment extended the initial contingency period by four days, and the parties agreed to the first amendment without controversy. However, Alps sought termination of the sale contract and return of the earnest money on January 14, 2020. CBAM's broker and Mr. McDowell both expressed frustration and questioned whether Alps seriously intended to close on the Chouteau Property. Alps’ broker indicated that Mr. Chakraverty admitted “dropping the ball on the initial due diligence period,” and noted that the zoning change process for the City of St. Louis required drafting detailed plans for the site (costing roughly $50-$100,000 or more), completing an application, and submitting the detailed plans and application to the City. Alps’ broker also indicated issues encountered with the Saint Louis University Midtown Redevelopment District were slowing Alps’ due diligence, but the Chouteau Property was not located within the Midtown Redevelopment District.

In any event, Alps’ attempted termination was untimely, and the parties negotiated a second amendment and extension to the sale contract. The second amendment was initiated by Alps’ broker because Alps needed more time to obtain approvals from the City for new construction on the Chouteau Property. According to Mr. Chakraverty, he conferred with the brokers and agreed to the terms of the second amendment, which were memorialized by Alps’ broker. The second amendment extended the contract by 180 days to provide Alps time to obtain the required approvals for new construction of multi-family apartments on the Chouteau Property and required an additional earnest money deposit of $35,000. The second amendment further provided that the initial $15,000 earnest money deposit held at the title company would be released to CBAM upon full execution of the amendment.

On January 31, 2020, the parties executed the second amendment, and provided it to the closing agent at the title company. Alps’ broker directed the title company to release the $15,000 initial earnest money to CBAM, and stated that additional earnest money would be deposited. Shortly thereafter, Mr. Chakraverty's then-counsel objected to the original second amendment and threatened litigation if CBAM did not agree to remove the provision for immediate receipt of the $15,000 initial earnest money. Alps also demanded removal of the provision releasing the additional $35,000 earnest money to CBAM if Alps failed to close. Alps’ counsel further claimed the original second amendment lacked consideration and was “ambiguous and [un]enforceable (sic).” He informed the title company that Alps “intends to vigorously defend its right to its earnest money” and would “hold [the title company] liable for the release of any such funds.” Alps’ counsel stated that if CBAM insisted on enforcing the original second amendment, CBAM “should know that in the least, his property will be tied up for the duration of the litigation.” CBAM's broker contacted Mr. McDowell stating, “Sid is screwing with us.” However, Mr. McDowell reluctantly agreed to a substitute second amendment removing the provisions to which Alps objected.

According to the contract, Alps was to draft a separate lease consistent with the terms set out in the contract, namely rent of $8,500 per month plus triple net charges for an initial term of nine months with the option to extend the lease for an additional 12 months at the same rate. But when Alps tendered the draft on July 28, 2020, it did not contain the agreed lease terms. Instead, the proposed lease contained different terms dramatically more favorable to Alps, including a three-year rental term at $10,000 per month and required the entire the rent of $360,000 be placed in escrow at closing. Even after CBAM prepared and submitted a lease containing the bargained-for lease terms identified in section 23.2 of the sale contract, Alps still rejected them. CBAM, however, refused to budge from the agreed lease terms, and therefore on July 31, 2020, Alps declared the contract “hereby terminated,” first claiming CBAM's refusal to sign the non-conforming lease and failure to provide tenant estoppel certificates constituted a breach. Alps further claimed CBAM breached its “warranties” and certain “obligations” although no such warranties or obligations were identified in the communication or at trial. Alps then sent a second notice of termination, narrowing its stated reasons solely to lack of finalization of the lease.

Despite the termination, CBAM gave notice of the closing consistent with the sale contract and appeared at the title company ready, willing, and able to close. Alps failed to appear and again threatened litigation if the title company disbursed the earnest money to CBAM, despite the contract's provision in section 11(a) expressly granting CBAM the right to receive the earnest money in lieu of pursuing litigation. With the earnest money frozen in escrow, and its ability foreclosed to accept the earnest money as a resolution to the dispute, CBAM filed suit pursuant to section 11(a) of the sale contract, which provided CBAM with the right “to pursue any remedy at law or in equity.”

CBAM initially sought specific performance of the sale contract, and in the alternative, sought damages for fraudulent misrepresentation. Alps filed its answer and affirmative defenses as to CBAM's specific performance count only, in which it denied the allegations. Alps also asserted affirmative defenses claiming the contract was unenforceable because it was little more than “an agreement to maybe agree later but did not contain sufficient terms to constitute an enforceable agreement and remained subject to the parties’ review.”

CBAM undertook to mitigate its damages in June 2021 by re-marketing the Chouteau Property for sale and dismissing its claim for specific performance. CBAM filed a first amended petition, claiming breach of contract and fraudulent misrepresentation. In July 2021, after spending nearly a year denying CBAM's allegations for specific performance and claiming the sale contract was invalid, Alps filed a counterclaim asserting specific performance. Alps “tied up” the property precisely as it had threatened previously by filing a lis pendens and blocking CBAM's ability to sell the Chouteau Property and mitigate its damages for several more years as the case progressed through trial. CBAM filed its second amended petition thereafter, asserting claims for breach of contract, fraudulent misrepresentation, and slander of title, which Alps denied. CBAM received some expressions of interest in the Chouteau Property in the following years, but when potential buyers learned of the lis pendens, they declined to go under contract. Mr. McDowell explained that he still wanted to put the Chouteau Property on the market even after Alps filed the lis pendens. He contacted his bank, and he discussed it with his broker and with counsel. However, Mr. McDowell soon realized that when potential buyers learned of the lis pendens “the interested parties just put up their hands and said, ‘We will have to wait.’ ” As a result, CBAM was unable to market the Chouteau Property during the pendency of the litigation.

The parties proceeded to trial in January 2025 on CBAM's claims for breach of contract, fraudulent misrepresentation, and slander of title, and Alps’ counterclaim for specific performance. CBAM's witnesses were: Mr. McDowell, sole member and principal of CBAM and Picturesque Graphics; CBAM's real estate broker and expert witness; CBAM's expert appraiser and market analyst; CBAM's banker, who also had a past working relationship with Alps; the title company's general counsel; and the title company's closing agent. Alps presented the testimony of only Mr. Chakraverty as its corporate representative. CBAM argued at trial that its damages were not limited to the breach of contract, but also included damages in tort:

They locked this property down, and not just through the breach of contract, Judge, and this is also important, it's the lis pendens also. They've doubled down. So you've got a contract and you've got a tort issue. That property has been locked down for the better part of five years—we, obviously, contend—improperly. So the question becomes ․ what opportunities, what damages have been inflicted on CBAM? And what would it cost for CBAM to do today exactly what CBAM was prepared, ready, willing, able, and planning to do, at the time the contract was breached?

Alps neither included its counterclaim of specific performance in its pre-trial briefing, nor presented any evidence to support its counterclaim, despite its notice of lis pendens preventing any sale of the property for nearly four years. After trial, Alps acknowledged it lacked sufficient evidence for specific performance and withdrew its claim. The trial court dismissed Alps’ counterclaim with prejudice.

The trial court entered judgment in favor of CBAM on its claims of breach of contract, fraudulent misrepresentation, and slander of title. The trial court observed that CBAM sought “to be made whole for the tangible, foreseeable and readily calculable losses to which [CBAM] testified having suffered as a direct and proximate result of [Alps’] failure to close on the sale in accordance with the terms of the Sale Contract, and by tying up title to the Property through the filing of the lis pendens ․.” As a result, the court awarded CBAM $730,663.62 in damages as follows: (1) the $50,000 in earnest money held by the title company; (2) attorney's fees of $88,399 and litigation costs of $13,264.63; (3) $490,000 representing the increased acquisition cost for purchase of the Pagedale Property; and (4) $89,000 representing the present value of the increase in the interest rate on commercial real estate loans between the date of Alps’ breach and trial. Alps appeals.

Standard of Review

On review of a court-tried case, we will affirm the trial court's judgment 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. Ivie v. Smith, 439 S.W.3d 189, 198-99 (Mo. banc 2014); Day, 528 S.W.3d at 411.

The majority of Alps’ points on appeal challenge the trial court's action on the basis that there was no substantial evidence to support it. “Substantial evidence is evidence that, if believed, has some probative force on each fact necessary to sustain the trial court's judgment.” Id. “Evidence carries probative force if it has any tendency to make a material fact more or less likely.” Id. We view the evidence in the light most favorable to the trial court's judgment, accepting as true the favorable evidence and inferences and disregarding all contrary evidence. Id. We also defer to the trial court's credibility determinations, recognizing that the trial court is free to believe any, all, or none of the evidence presented at trial. Id.

Any reference to or reliance on evidence and inferences contrary to the judgment is irrelevant in challenging a factual proposition necessary to sustain the judgment as not supported by substantial evidence. Houston v. Crider, 317 S.W.3d 178, 186 (Mo. App. S.D. 2010). Contrary facts and inferences offer no help in determining whether the evidence and inferences favorable to the challenged proposition have probative force upon the proposition and constitute evidence from which the factfinder can reasonably decide the proposition is true. Id. Further, we do not reweigh the evidence. Veazie-Gallant v. Brown, 620 S.W.3d 641, 654 (Mo. App. E.D. 2021).

However, we review questions of law de novo, and we do not defer to the trial court's determination of such questions. Buscher v. Buscher, 620 S.W.3d 283, 287 (Mo. App. E.D. 2021).

Discussion

In seven points on appeal, Alps challenges the trial court's judgment in favor of CBAM on its claims of slander of title, breach of contract, and fraudulent misrepresentation along with the trial court's award of damages to CBAM. For the sake of clarity, we consider Alps’ points out of order. In addition, CBAM has filed a motion for an award of attorney's fees on appeal.

Point Five—CBAM Established Slander Of Title

In its fifth point, Alps challenges the trial court's determination that CBAM established its claim of slander of title:

The trial court erred in holding CBAM established the elements for a slander of title claim because this misapplied the law, for as a matter of law Alps’ filing of its notice of lis pendens was absolutely privileged in that [section] 527.260, R.S.Mo., legally obligated Alps to file the notice of lis pendens, making judicial estoppel inapplicable here.

Alps argues the trial court misapplied the law because Alps was legally obligated by statute to file the notice of lis pendens so that the filing was, in fact, absolutely privileged. We disagree.

A. Absolute Privilege For Filing Of Lis Pendens Does Not Bar Consideration Of Motive And Intent In An Appropriate Civil Action

Section 527.260 RSMo. (2016) provides for the filing of a lis pendens “[i]n any civil action, based on any equitable right, claim or lien, affecting or designed to affect real estate[.]” Filing a lis pendens provides a record notice to potential purchasers that a pending suit may affect title to the subject property, and the purpose of the lis pendens is to preserve rights pending the outcome of litigation. First Nat'l Bank of St. Louis v. Ricon, Inc., 311 S.W.3d 857, 864 (Mo. App. E.D. 2010).

When a notice of lis pendens has a reasonable relation to the pending litigation, absolute privilege attaches to recordation of the lis pendens. Id. A party has an absolute privilege to disparage another party's property interest when participating in a judicial proceeding if the disparagement has some relation to the judicial proceeding. Id. “However, the filing of such notices can constitute slander of title where the filings are instituted for a purpose other than securing adjudication of a plaintiff's claim and without reasonable belief in a valid claim.” Id. (emphasis added) (citing Houska v. Frederick, 447 S.W.2d 514, 519 (Mo. 1969).

The question, then becomes whether a lis pendens filed under section 527.260 may form the basis for a slander-of-title claim. Alps argues that such a filing cannot constitute slander of title, and cites Odermann v. Mancuso, 670 S.W.3d 461 (Mo. App. W.D. 2023), for that proposition. But Alps reads Odermann too broadly.

In Odermann, the Western District stated that “[a]s we have already said, when examining a lis pendens filed pursuant to section 527.260, neither the plaintiff's motive nor evidence tending to show motive is relevant and the ‘only relevant inquiry is whether the lis pendens notices bore a reasonable relation to the action filed.’ ” 670 S.W.3d at 473 (quoting Birdsong v. Bydalek, 953 S.W.2d 103, 114 (Mo. App. S.D. 1997)). However, the Court continued:

[W]e hold that where a notice of lis pendens that contains the information required by section 527.260, is filed and has “a reasonable relation” to a civil action pending based on any equitable right, claim or lien affecting or designed to affect real estate, the lis pendens cannot be attacked under section 570.095 [a criminal statute related to filing false documents] as a matter of law because of the requirement in section 527.260 to file such notice, and the resulting absolute privilege attached to the filing.

Id. at 473-74 (emphasis added). The Odermann ruling is limited explicitly to collateral attacks on a lis pendens in proceedings under section 570.095, which is a criminal statute prohibiting filing of false documents. The Odermann Court suggested that a lis pendens filed under section 527.260 could be addressed in the underlying action itself, or via further litigation for slander of title or malicious prosecution.

[A] court entertaining a section 570.095 petition for review has no authority to look at the motive or to a party's intent for filing the lawsuit that generates the statutory obligation to file the notice of lis pendens. Instead, such issues are properly—and should only be—addressed in connection with the underlying lawsuit, and possibly in further litigation, whether by way of a malicious prosecution or slander of title action, if at all.

Id. at 474 (emphasis added).

Odermann left open the possibility that the motive or intent of a party filing a lis pendens could be considered in the action that gave rise to filing the lis pendens. The present case is precisely that type of action. Alps’ motive for filing its specific performance counterclaim and related lis pendens was addressed along with CBAM's resulting claim for slander of title in the underlying litigation, where Alps failed to present any evidence to prove its specific performance counterclaim and maintained through trial that it had properly terminated the sale contract. Odermann does not foreclose all possibility that the motive for filing a lis pendens under section 527.260 can be considered in an appropriate proceeding, such as we have here.

Houska v. Frederick, 447 S.W.2d 514, 518-19 (Mo. 1969), is among the principal cases Missouri courts rely on to hold that filing a lis pendens is absolutely privileged when the filing has some relation to the underlying judicial proceeding. Nevertheless, the Houska Court stated:

However, there could be an action for wrongful initiation of civil proceedings, but this must be based on lack of probable cause, suing for a purpose other than securing adjudication of plaintiffs’ claim and without reasonable belief of a valid claim. Our statute, [section] 527.260 provides for filing of lis pendens and it is proper to do so when a party has reasonable grounds to believe he has a valid claim.

447 S.W.2d at 518 (internal citations omitted) (emphases added). This language should not be ignored as extraneous. Acknowledging the defendants adequately pled a counterclaim for malicious prosecution, the Houska Court proceeded to consider whether the defendants proved this claim. Id. at 519. The Court determined that the evidence did not support malicious prosecution but rather “indicat[ed] a claim made in good faith by plaintiffs.” Id. Thus, Houska likewise suggests that a bad-faith claim and lis pendens filing could give rise to a separate claim against the party filing in bad faith, and that such a claim could be sustained with adequate proof. Id.

Therefore, we hold that Alps’ filing of a lis pendens does not prevent CBAM from pursuing a claim for slander of title in the underlying action, as CBAM did here.

B. CBAM Established The Elements Of Slander Of Title

“Under Missouri law, a claim of slander of title requires the plaintiff to demonstrate: 1) some interest in the property, 2) that the words published were false, 3) that the words were maliciously published, and 4) that he suffered pecuniary loss or injury as a result of the false statement.” Bechtle v. Adbar Co., L.C., 14 S.W.3d 725, 728 (Mo. App. E.D. 2000). Here, it was undisputed that CBAM, the plaintiff, met the first element because it held an ownership interest in the Chouteau Property. The second and third elements—false words and malice, respectively—logically relate to the exception to the privilege that generally attaches to recording a lis pendens. When the lis pendens filings are instituted for a purpose other than securing adjudication of a claim and without reasonable belief in a valid claim, their filing can constitute slander of title. First Nat'l Bank, 311 S.W.3d at 864; see also, Houska, 447 S.W.2d at 518 (stating lis pendens filing proper when party has reasonable grounds to believe party has valid claim).

Here, the trial court found the lis pendens was patently false. We agree. Alps purported to terminate the sale contract on July 31, 2020. Alps steadfastly maintained through the time of trial that it had properly terminated the sale contract on July 31, 2020. Only when CBAM amended its petition to plead breach of contract, rather than specific performance, and sought to re-market the Chouteau Property did Alps contend that it had a claim for specific performance. Alps then, as stated in its lis pendens, sought “an order, judgment and decree from the Court compelling [CBAM] to perform under a certain Sale Contract and deliver title to the Property to [Alps].” Essentially, Alps’ lis pendens represents that Alps seeks title to property—property for which it never completed its due diligence obligations, for which it refused release of earnest money, for which it never paid, and for which Alps insisted up to and throughout trial was the subject of a sale contract that Alps properly and successfully terminated in July 2020. Alps filed its counterclaim for specific performance and recorded the lis pendens in July 2021, nearly a year after Alps’ supposed successful termination of the sale contract.

The trial court found that because Alps “did not have any legitimate ‘equitable right, claim or lien’ on the Property to support the lis pendens, [Alps’] filing was neither authorized nor privileged under section 527.260 RSMo.” The trial court's finding is supported by the record. Alps’ actions for nearly a year before filing its counterclaim for specific performance and the lis pendens as soon as CBAM sought to market the Chouteau Property to other potential buyers support a finding that Alps did not reasonably believe it had a valid claim to the Chouteau Property and did not file the lis pendens for the purpose of adjudicating a valid claim but instead filed in bad faith. Thus, the statements contained in the lis pendens were false.

The third element of a slander of title action is malice. “An action for slander of title cannot exist without a malicious intent.” Bechtle, 14 S.W.3d at 728. [P]roof of falsity, alone, is not proof of malice. Id. To establish malice, the evidence must support a reasonable inference that Alps’ lis pendens was filed not only without legal justification or excuse, but also was not innocently or ignorantly filed. First Nat'l Bank, 311 S.W.3d at 867. A plaintiff need not present direct evidence of the defendant's mental state because malice may be inferred from the defendant's conduct. Dumler v. Nationstar Mortgage, LLC, 585 S.W.3d 343, 352 (Mo. App. W.D. 2019). “Such inference may rest on a foundation of circumstantial evidence and proof of a lack of probable cause would support an inference that the representation was not innocently made out of stupidity or ignorance but was known to be false.” First Nat'l Bank, 311 S.W.3d at 867 (quoting Bechtle, 14 S.W.3d at 729).

As Alps sought to renegotiate the original second amendment to the sale contract, Alps threatened that if CBAM did not agree to whatever Alps wanted, CBAM “should know that in the least his property will be tied up for the duration of the litigation.” Malicious intent is a question for the factfinder. Id. We also defer to the credibility determinations made by the trier of fact, Day, 528 S.W.3d at 411, and here, the trial court found Mr. Chakraverty's testimony on behalf of Alps that CBAM's broker tricked him into signing the original second amendment was not credible. The trial court's finding that Alps’ lack of legal justification or excuse for filing its lis pendens, and its own course of conduct in threatening to tie up the Chouteau Property in litigation while continuously denying the enforceability of the sale contract is supported by the record. We do not reweigh the evidence, Veazie-Gallant, 620 S.W.3d at 654, but instead accept as true the favorable evidence and inferences and disregard all contrary evidence, Day, 528 S.W.3d at 411.

The fourth element of slander of title is pecuniary loss or injury. Alps’ actions tied up CBAM's property for nearly five years, rendering CBAM unable to market the Chouteau Property to other potential buyers, preventing CBAM from contracting to sell the Chouteau Property to another buyer, preventing CBAM from purchasing a larger property in which to expand Picturesque Graphics, and increasing CBAM's costs to purchase and finance a larger property after prevailing at trial. CBAM produced evidence of these injuries, as discussed in detail in Points Two and Three below. CBAM established it sustained pecuniary injury.

The trial court did not erroneously apply the law when it determined CBAM established the elements of a claim for slander of title. We deny Alps’ fifth point.

Point Six – CBAM Established Alps’ Breach Of Contract

In Point Six, Alps claims the trial court erred in concluding that CBAM established the required elements of a breach of contract action:

The trial court erred in holding CBAM established the required elements of a breach of contract action as a matter of law because that finding lacked substantial evidence in support, as a breach of contract requires that the defendant breach the contract's terms and is the first party to do so in that even viewing the evidence in the light most favorable to the trial court's judgment, the contract's terms explicitly permitted Alps to terminate the contract during due diligence, and it is uncontested CBAM had already breached the terms of the contract prior to.

In an action for breach of contract, the plaintiff must establish: (1) the existence and terms of a contract; (2) the plaintiff's performance or tender of performance under the contract; (3) the defendant's breach of the contract; and (4) damages suffered by the plaintiff. TNT Amusements, Inc. v. BFC Enters., Inc., 613 S.W.3d 403, 408 (Mo. App. E.D. 2020).

Here, the parties do not dispute that they entered into the sale contract dated November 25, 2019, which was then amended by the first amendment, the original second amendment, and the revised second amendment. Thus, it is undisputed that CBAM established the first element of its breach of contract claim. In this point relied on, Alps contends CBAM failed to establish the second and third elements of CBAM's claim, namely that CBAM performed or tendered performance under the contract, and that Alps breached the contract, respectively. Alps challenges the issue of damages in separate points relied on.

The trial court found the terms of the sale contract and the amendments were “plain, unambiguous and aptly set forth the rights, duties, and obligations of the parties.” The trial court found Alps breached the sale contract when it failed to produce a lease for CBAM in compliance with the terms of the contract ($8,500 monthly rent plus triple net charges for an initial term of nine months and the option to extend for another 12 months at the same rate) and then rejected CBAM's attempt to include those agreed-to terms in the lease. The trial court found the lease provisions were material to the sale contract, and the agreed-to lease terms included all necessary terms for a valid lease under Missouri law. However, Alps argues no substantial evidence supports the trial court's determination that Alps breached the contract because: (1) CBAM materially breached the contract first by failing to provide tenant estoppels; and (2) Alps had the right to terminate the contract during the due diligence period.

First, we disagree with the premise that CBAM failed to perform or tender performance. CBAM did not materially breach the contract by failing to provide tenant estoppel certificates. An estoppel certificate is “[a] signed statement by a party (such as a tenant or a mortgagee) certifying for another's benefit that certain facts are correct, such as that a lease exists, that there are no defaults, and that rent is paid to a certain date.” Estoppel Certificate, Black's Law Dictionary (12th ed. 2024). In other words, an estoppel certificate simply verifies that the tenant's lease with the current landlord is in full force and effect and no uncured breaches or other issues exist.

CBAM's broker and expert testified that estoppel certificates are material in transactions where the buyer assumes the seller's duties and obligations as landlord under a tenant's existing lease, and where the landlord/seller and the tenant are separate, unrelated entities. In this case, however, CBAM and the Chouteau Property's sole tenant, Picturesque Graphics, were owned by the same individual, Mr. McDowell, who had authority to bind both CBAM and the tenant. With this sale contract, Alps was not assuming an existing lease between CBAM and Picturesque Graphics, nor was Alps assuming any of CBAM's duties or obligations to Picturesque Graphics.

The lack of materiality of an estoppel certificate in this case is further demonstrated, as the trial court observed, in that neither Alps nor its broker ever questioned why CBAM did not provide the tenant estoppel certificate, despite it allegedly being due to Alps within 10 calendar days of execution of the sale contract. The trial court found that “[i]f the estoppel certificate was critical to this transaction as Alps claimed at trial, common sense and good business practice dictate there would have been some communication about it ․.” The court continued, “[y]et neither Mr. Chakraverty nor his Broker or attorney ever made inquiry regarding the status of the certificate until after [Alps] was seeking to get out of the Sale Contract.” (Emphases in original).

The trial court determined that “the evidence showed that the estoppel certificate was not material to the transaction, and in fact was irrelevant based on the post-closing lease and the common ownership of [CBAM] and Picturesque Graphics.” We agree. Even assuming for the sake of argument that CBAM breached the contract by failing to provide an estoppel certificate, only a material breach excuses the other party's performance. Matt Miller Co., Inc. v. Taylor-Martin Holdings, LLC, 393 S.W.3d 68, 88 (Mo. App. S.D. 2012). Here, any breach by CBAM was not material and would have been deemed satisfied under section 8(e) of the sale contract—discussed below—because Alps failed to timely notify CBAM of any issue with the estoppel certificate. The materiality of a breach is a question for the factfinder. Id. That is not what occurred here, and the record contains substantial evidence to support a finding that CBAM performed under the sale contract.

Second, Alps argues that it had the right to terminate the sale contract before the end of the due diligence period and that it timely did so. This argument goes to the third element of a claim for breach of contract, namely the defendant's breach. The trial court found Alps breached the terms of the sale contract because its purported termination failed to “comply with, satisfy, or otherwise fall within any of the Sale Contract's recognized grounds for termination and was ineffective.” We agree.

Section 8 of the sale contract, titled “Buyer's Due Diligence Period,” identifies in paragraphs (a) through (f) certain items of due diligence that if not satisfied or waived, allow Alps to terminate the contract on giving proper notice.² Alps did not invoke any of these circumstances when it purported to terminate the contract on July 31, 2020. Rather Alps’ first notice sought to declare the contract “hereby terminated” because CBAM: (1) failed “to enter into a post-closing Lease”; (2) failed “to provide Estoppel Certificates”; and (3) breached “the warranties as well as Seller's Obligations as set forth in the Agreement.” Alps then gave a second notice that the trial court found narrowed the grounds for termination solely to CBAM's refusal to execute the lease drafted by Alps, which did not conform to the agreed terms set forth in the sale contract.³ CBAM's refusal to execute the lease drafted by Alps is not among the grounds for termination enumerated in the sale contract.

Further, we agree with the trial court that Alps was the first to breach the sale contract by tendering to CBAM a lease that did not conform to the terms negotiated and agreed by the parties and expressly set forth in the sale contract under Section 23.2, special terms and conditions. The sale contract provided that the day after closing the sale, CBAM would lease the Chouteau Property for nine months at $8,500 per month plus all triple net charges. The contract also provided an option for an additional 12-month lease-back at the same rent and triple net charges, with either party able to terminate the lease extension upon 120 days’ notice. Alps was to draft a lease for CBAM's review within 15 days of contract execution, and the parties were to execute the lease prior to closing.

Instead, on July 28, 2020, after numerous CBAM inquiries, Alps tendered a draft lease that did not contain the agreed terms set forth in the contract. The lease contained different terms far more favorable to the Alps, including a three-year term at $10,000 per month with CBAM placing $360,000—rent for the entire three years—in escrow at closing. When CBAM insisted on a lease in conformity with the contract terms, Alps purported to terminate the contract on July 29, 2020. Alps thereafter failed to appear at closing and threatened to sue the title company if it disbursed the earnest money to CBAM, thereby causing the title company to freeze the earnest money, which remained in escrow at the time of trial.

In addition, Alps’ failure to tender a lease containing the agreed-to terms constituted a material breach of the sale contract. Both the testimony of Mr. McDowell and his broker was uncontroverted that the agreed-to lease terms were material. Mr. McDowell's testimony and documentary evidence of the plan to sell the Chouteau Property and lease it back to allow time to locate a replacement property and transition Picturesque Graphics’ business to the new location also support the materiality of the agreed-to lease terms. Indeed, the sale contract's placement of the express lease terms in section 23.2, titled special terms and conditions, supports the finding that the lease terms were material to the sale contract.

Finally, the trial court determined that the agreed-to lease terms constitute all of the necessary terms for a valid lease under Missouri law. However, Alps has not challenged that determination on appeal. “[A]llegations of error not briefed or not properly briefed shall not be considered in any civil appeal.” Rule 84.13(a).

We find the trial court's determination is supported by substantial evidence that Alps was the first to materially breach the sale contract by failing to tender a lease containing the agreed-to terms contained in the sale contract. We deny Alps’ sixth point.

Point Seven—CBAM Established Fraudulent Misrepresentation

In Point Seven, Alps challenges the trial court's determination that CBAM established its claim of fraudulent misrepresentation:

The trial court erred in holding CBAM established the elements of a fraudulent misrepresentation claim because the court's holding lacked substantial evidence supporting any finding that Alps made a material misrepresentation regarding its intent to fully perform the contract when it was signed in that even viewing the evidence in the light most favorable to the trial court's judgment, the evidence showed only that Alps intended to complete the purchase when the parties entered into the contract.

To prove liability for fraudulent misrepresentation, a plaintiff must prove the following elements: (1) a representation; (2) its falsity; (3) its materiality; (4) the defendant's knowledge of the representation's falsity or ignorance of its truth; (5) the defendant's intent that the plaintiff act on that representation in the manner reasonably contemplated; (6) the plaintiff's ignorance that the representation is false; (7) the plaintiff's reliance on the representation being true; (8) the plaintiff's right to rely on it; and (9) the consequent injury. Sanders v. Gould, 685 S.W.3d 589, 594-95 (Mo. App. E.D. 2024). Because fraud is rarely susceptible of positive proof, a plaintiff may prove a claim of fraud by circumstantial evidence. O'Gorman & Sandroni, P.C. v. Dodson, 478 S.W.3d 539, 545-46 (Mo. App. E.D. 2015).

Alps argues no substantial evidence supports the trial court's determination that Alps made a material misrepresentation regarding its intent to fully perform under the terms set forth in the sale contract when it signed the agreement. Because the fraudulent misrepresentation claim was premised on a future act—Alps completing the purchase of the Chouteau Property—CBAM was required to prove that, at the time the statement was made, Alps did not intend to perform the act represented, namely to complete the purchase of the Chouteau Property according to the terms set forth in the sale contract. Sanders, 685 S.W.3d at 596. In other words, “an unkept promise does not constitute actionable fraud unless the promise is accompanied by the defendant's present intent not to perform, which constitutes a misrepresentation of a present state of mind, itself an existent fact.” Id. at 597 (quoting CADCO, Inc. v. Fleetwood Enters., Inc., 220 S.W.3d 426, 436 (Mo. App. E.D. 2007)). Missouri law is well settled that a contractual promise made without the present intention to perform is a misrepresentation sufficient to demonstrate fraud. Commonwealth Land Title Ins. Co. v. Miceli, 480 S.W.3d 354, 372 (Mo. App. E.D. 2015). Alps’ present intent is judged at the time the statement was made and in light of the meaning that CBAM would reasonably give it under the circumstances. Sanders, 685 S.W.3d at 597. In addition, post-contract acts can support a finding that a party had a pre-contract intent not to perform at the time of signing. Saddleridge Estates, Inc. v. Ruiz, 323 S.W.3d 427, 434 (Mo. App. W.D. 2010).

Here, the record contains substantial evidence to establish that Alps did not intend to complete the purchase of the Chouteau Property according to the terms set forth in the sale contract executed on November 25, 2019. Alps did not comply with a single provision of the sale contract, including: (1) the original 45-day deadline to secure zoning approval set forth in section 8; (2) the $50,000 additional earnest money required for an extension of Alps’ due-diligence period set forth in section 3.B; (3) the terms of the original second amendment, which Alps refused to perform after negotiation, execution, and delivery to the title company; (4) the revised second amendment that called for obtaining approvals from the City of St. Louis for new construction of multi-family apartments; (5) the agreed-to lease terms set forth in section 23.2; and (6) CBAM's option under section 11(a) to receive the escrow funds in lieu of litigation if Alps defaulted.

Mr. Chakraverty testified that changes to the terms of the sale contract terms were necessary because first, the Midtown Redevelopment District was not supportive of his plan to construct apartments; and second, the Chouteau Property was misrepresented as being “shovel ready” for construction within 45 days of contract execution. The trial court found that “Mr. Chakraverty's testimony only proves [CBAM's] point: that [Alps’] intention was to perform, if at all, pursuant to whatever terms [Alps] felt it needed over the course of the deal as business conditions dictated, or that [Alps] believed it could otherwise impose.” We agree.

Mr. Chakraverty attributed the need for different contract terms to lack of support from the Midtown Redevelopment District although he conceded at trial that the Chouteau Property was not located within the Midtown Redevelopment District. Mr. Chakraverty was an experienced real-estate developer, and was familiar with the area surrounding the Chouteau Property, having owned and developed multiple parcels within a half-mile radius. As a result, Mr. Chakraverty was familiar with the requirements of the City of St. Louis and the Midtown Redevelopment District. He testified that the typical development timeframe for a project in this area was about two years before construction could begin. These facts support an inference that Alps never intended to complete the purchase after a 45-day due-diligence period as agreed when the parties executed the sale contract.

In addition, Mr. Chakraverty contended he was misled about the Chouteau Property, and so needed to change the terms of the sale contract. Mr. Chakraverty testified that Alps agreed to the contract's 45-day due-diligence period based on his claimed belief that the Chouteau Property would be ready to begin construction in that time. Again however, Mr. Chakraverty, an experienced real-estate developer, testified the typical time was closer to two years to obtain the appropriate zoning approvals and to ready a property for construction.

Alps also knew, when promising to close on the purchase after a 45-day due-diligence period, that CBAM would be leasing the Chouteau Property back for at least nine months, and perhaps for as long as 21 months. Alps agreed to the specified terms wherein CBAM would lease back the Chouteau Property while Picturesque Graphics located and transitioned to a new, larger property. Given these facts, Alps’ testimony that he originally intended to close the purchase of the Chouteau Property after a 45-day due-diligence period with the expectation that the Chouteau Property would be “shovel-ready” in that time is illogical. As the trial court found, “under no circumstances could [Alps] have ‘put a shovel in the ground’ ” to begin development in this timeframe.

Further, Alps conducted no due diligence during the initial 45-day period, and “admitted dropping the ball.” Even after obtaining a 180-day extension, Alps still adduced no evidence at trial that it had conducted any due diligence, supporting a reasonable inference that Alps never intended to purchase the Chouteau Property under the terms set forth in the sale contract. There was no evidence that detailed plans were submitted to the City, and the Chouteau Property was not located in the Midtown Redevelopment District as Alps claimed.

As to the lease terms the parties agreed to in the sale contract, Mr. Chakraverty testified that he would not honor the agreed-to lease terms because the Midtown Redevelopment District was not in favor of additional development of multi-family apartments at that time. Thus, Mr. Chakraverty maintained Alps’ development plan would be delayed for three years, and the economic projections changed as a result, leading Alps to demand that CBAM execute a lease for 36 months at a rent of $10,000 per month, with the full $360,000 placed in escrow at closing. However, the trial court observed that Alps’ proffered rationale appears nowhere among the voluminous communications between the parties and their brokers. In fact, these communications indicate that “Sid's banker” wanted the longer lease, rather than there being an issue with the Midtown Redevelopment District.

Alps’ refusal to honor any of the sale contract terms, including those for the lease back to CBAM, followed by Alps’ attempts instead to secure an exponentially better and dramatically different deal at CBAM's expense support the trial court's determination that Alps never intended to perform under the sale contract terms as agreed and executed on November 25, 2019.

CBAM established its claim for fraudulent misrepresentation. We deny Alps’ seventh point.

Point One—An Award Of Damages To CBAM Was Supported By Substantial Evidence

In its first point, Alps challenges the award of damages to CBAM, generally:

The trial court erred in awarding CBAM damages for the Property because any damages lacked substantial evidence in its support, as Missouri law requires only that the seller receive the benefit of the bargain, in that even viewing the evidence in the light most favorable to the trial court's judgment, the evidence at trial from CBAM's own expert showed the Property had actually risen in value.

The gravamen of Alps’ argument is that CBAM suffered no damages, and thus was not entitled to an award of any damages whatsoever, because the contract price of the Chouteau Property was less than the fair market value at the time of Alps’ breach in late July 2020. As a result, Alps contends, CBAM “did not lose even a cent from any contractual breach.” We disagree.

Fundamental to all of Alps’ arguments against the damages awarded to CBAM is the supposition that the trial court awarded all damages at law for Alps’ breach of contract. However, this supposition is flawed. As the trial court observed, CBAM sought to be made whole for the tangible, foreseeable, and readily calculable losses sustained as a direct and proximate result of: (1) Alps’ failure to close on the sale in accordance with the terms of the sale contract, which relate to CBAM's claims of breach of contract and fraudulent misrepresentation; and (2) Alps’ tying up the Chouteau Property through filing the lis pendens, which relates to CBAM's claim for slander of title.

Given our determination that Alps engaged in fraudulent misrepresentation, breached the sale contract, and slandered CBAM's title, we reject Alps’ contention that CBAM is not entitled to any damages whatsoever. We will affirm the trial court's award of damages based on any theory supported by the record. Dumler, 585 S.W.3d at 353 n.8. We examine the trial court's award of damages in our discussion of Point Two, increased acquisition costs for the Pagedale Property; Point Three, increased interest rate costs for a replacement property; and Point Four, disbursement of the earnest money.

The only award to CBAM that Alps does not challenge in a separate point relied on is that of attorney's fees and costs. However, section 11 of the sale contract expressly provides for payment of these expenses to the prevailing party in the event of litigation. When a contract authorizes the payment of attorney's fees, the court must award them to the prevailing party. Ries v. Shoemake, 359 S.W.3d 137, 144 (Mo. App. S.D. 2012). The trial court properly awarded attorney's fees and costs to CBAM. We deny Point One.

Point Two—CBAM Is Entitled To Damages Based On The Increased Sale Price Of The Pagedale Property

And

Point Three—CBAM Is Entitled To Damages Based On The Increased Interest Rate For A Commercial Real Estate Loan On A Replacement Property

We consider Points Two and Three together to avoid repetition because the law and reasoning are equally applicable to both points. Alps challenges the award of these damages on the basis that no substantial evidence supports the trial court's judgment.

In its second point, Alps challenges the award of damages to CBAM based on the increased sale price of the Pagedale Property, a property that CBAM considered in 2019 and 2020 as a replacement for its Chouteau Property, and that was on the market at the time of trial.

The trial court erred in awarding CBAM special damages for the Property because the award lacked substantial evidence in its support based on the difference in price of another property, the Pagedale Property in that even viewing the evidence in the light most favorable to the trial court's judgment, there was no evidence that CBAM ever seriously intended to purchase the Pagedale Property but for the breach or that CBAM ever communicated its plans to purchase the Pagedale Property to Alps.

Alps purports to apply the sequential three-step analytical framework for a not-supported-by-substantial-evidence challenge as set forth in Houston v. Crider, but does not actually do so. 317 S.W.3d at 187.⁴ Instead, Alps simply identifies evidence contrary to the trial court's judgment. We reiterate:

[A]ny citation to or reliance upon evidence and inferences contrary to the judgment is irrelevant and immaterial to an appellant's point and argument challenging a factual proposition necessary to sustain the judgment as being not supported by substantial evidence. Such contrary facts and inferences provide no assistance to this Court in determining whether the evidence and inferences favorable to the challenged proposition have probative force upon it, and are, therefore, evidence from which the trier of fact can reasonably decide that the proposition is true.

Id. The exclusion of material evidence favorable to the judgment renders Alps’ attempted demonstration analytically useless and provides no support for sustaining Alps’ challenge. Id. at 188.

In its third point, Alps challenges the award of damages to CBAM based on the present value of increased costs CBAM will incur in financing a replacement property because of the higher interest rates on commercial real estate loans in effect at the time of trial versus the time the sale contract was breached.

The trial court erred in awarding CBAM interest rates for the Property because any award for interest rates lacks substantial evidence in support, as Missouri law requires that damages be reasonably foreseeable in that even viewing the evidence in the light most favorable to the trial court's judgment, there was no evidence that CBAM suffered any real loss as to the increased interest rates because it took no steps towards procuring an interest rate.

According to Mr. McDowell, CBAM had planned to obtain a $1,000,000 loan to purchase and expand the Pagedale Property at an interest rate of 3.5 percent for 15 years. He estimated the increase in interest rates for commercial real estate loans generally since the time of Alps’ breach would cost CBAM $245,000 over the life of a 15-year loan.

CBAM argued at trial that its damages were not limited to the breach of contract, but also included damages related to its tort claims:

They locked this property down, and not just through the breach of contract, Judge, and this is also important, it's the lis pendens also. They've doubled down. So you've got a contract and you've got a tort issue. That property has been locked down for the better part of five years—we, obviously, contend—improperly. So the question becomes ․ what opportunities, what damages have been inflicted on CBAM? And what would it cost for CBAM to do today exactly what CBAM was prepared, ready, willing, able, and planning to do, at the time the contract was breached?

In awarding damages to CBAM, the trial court noted that CBAM sustained damage not only from Alps’ failure to close on the sale, but also when CBAM's Chouteau Property was rendered unmarketable for years as the result of Alps filing the lis pendens, which was patently false. Further, we have affirmed the trial court's determination that Alps committed fraudulent misrepresentation, never intending to perform the sale contract under the terms the parties agreed.

We acknowledge the trial court's judgment did not allocate specific damage awards to specific claims. Instead, the trial court looked at the entire matter and granted relief as good conscience dictated, which is what courts sitting in equity are called to do. 27A Am. Jur. 2d Equity, section 98. Remedies for breach of contract, fraudulent misrepresentation, and slander of title all support CBAM's recovery of damages representing the increased cost of purchasing a replacement property and increased interest rates on commercial real estate loans, especially when considering the totality of Alps’ actions. “The admonitory function of the law requires that the defendant not escape liability and justifies allowing the plaintiff the benefit of his bargain.” Restatement (Second) of Torts, section 549 cmt. i (A.L.I. 1977). Again, we will affirm the trial court's award of damages based on any theory supported by the record. Dumler, 585 S.W.3d at 353 n.8.

A. Damages For Breach Of Contract

“The rules regarding the measure of damages in contract cases are well settled.” Cal-Val Constr. Co., Inc. v. Mazur, 636 S.W.2d 391, 392 (Mo. App. E.D. 1982). “The non-breaching party may recover ‘the amount which will compensate [the party] for the loss which a fulfillment of the contract would have prevented or the breach of it has entailed[.]’ ” Id. (quoting Boten v. Brecklein, 452 S.W.2d 86, 93 (Mo. 1970)). The injured party is to be placed, as far as is possible with a monetary award, in the position the party would have been in had the contract been performed. Id.; Birdsong, 953 S.W.2d at 116; Dunning v. Alfred H. Mayer Co., 483 S.W.2d 423, 427 (Mo. App. St.L.D. 1972).

Here, section 11(a) of the sale contract provided that “[i]f [Alps] defaults, ․ [CBAM] may pursue any remedy at law or in equity[,]” and the trial court, indeed, was sitting in equity. CBAM originally filed suit for specific performance, which “is purely an equitable remedy and must be governed by equitable principles.” ROH Farms, LLC v. Cook, 572 S.W.3d 121, 125 (Mo. App. W.D. 2019). When CBAM dismissed its claim for specific performance and instead sought damages for breach of contract, Alps sought specific performance from CBAM on the contract Alps itself had purported to terminate. As a result, the trial court was sitting in equity throughout the litigation. “The equity court once invested with jurisdiction will retain jurisdiction and do full and complete justice.” Dunning, 483 S.W.2d at 428.

The equity court has broad discretion to do complete justice between the parties. McDermott v. Burpo, 663 S.W.2d 256, 263 (Mo. App. W.D. 1983). “These powers are broad. [The court] can do complete justice; require an accounting; establish and enforce vendor's or other liens on terms provided in the contract; adjust equities for improvements made, deterioration, rent, interest and the like ․” Id. (quoting State ex rel. Place v. Bland, 353 Mo. 639, 183 S.W.2d 878, 890-891 (1944)). The court may also enforce specific performance and award damages. Place, 183 S.W.2d at 891. “Equity looks at the entire matter and grants or denies relief as good conscience dictates.” 27A Am. Jur. 2d Equity section 98.

In Smith v. Najafi, 584 S.W.3d 389, 394 (Mo. App. W.D. 2019), the Western District observed that “[w]here a trial court awards a decree of specific performance to a purchaser of land, inevitably a period of time elapses between the date when the land should have been conveyed in fulfillment of the contract and the date of the decree ordering the performance.” (quoting McDermott, 663 S.W.2d at 263). “As incident to its decree, the trial court has the discretion to relate performance to the original date of the agreement through an additional award of any costs caused by the delay.” Id. (quoting McDermott, 663 S.W.2d at 263). Such an award does not comprise legal damages from the breach of contract. Id. Rather, the award is more akin to an equitable accounting between the parties in affirmance of the contract. Id. An award of this nature includes compensation for the increase in interest rates. Id.

While the instant case does not involve an order of specific performance, the trial court was sitting in equity, nevertheless.

A court of equity has the jurisdiction to grant remedies necessary to establish, protect, and enforce the essential equitable relief required. Therefore, where equitable relief is appropriate, its scope is left to the discretion of the trial judge. Moreover, the determination of what equity requires in a particular equitable proceeding, the balancing of the equities, is a matter for the discretion of the trial court.

27A Am. Jur. 2d Equity section 98. We find Smith instructive regarding an award of any costs arising from the delay caused by the breaching party, which we have affirmed is Alps in this case. And the well-settled rule regarding the measure of damages in contract cases holds true: The non-breaching party may recover the amount that will compensate the party for the loss that the contract's fulfillment would have prevented or its breach has entailed. Cal-Val Constr., 636 S.W.2d at 392.

Consequential damages are also available for breach of contract. Curators of University of Missouri v. Suppes, 583 S.W.3d 49, 61 (Mo. App. W.D. 2019). Consequential damages are those damages naturally and proximately caused by the non-performing party's breach, and those damages that the breaching party reasonably could have contemplated at the time of the parties’ agreement. Id. Alps and the dissent argue that Alps could not have known of CBAM's intention to purchase the Pagedale Property, and without such knowledge, damages for the increased acquisition costs of the Pagedale Property are not foreseeable and not properly awarded as damages. We acknowledge that consequential damages are those that the breaching party reasonably could have contemplated at the time of the parties’ agreement. Id. Where we diverge, however, is in the analysis of whether CBAM must have informed Alps of its intent to purchase a specific, identified property upon the sale of the Chouteau Property, or whether Alps’ more general knowledge of CBAM's intent to use funds from the sale of the Chouteau Property to purchase a larger property supports the damage award of $490,000 linked to the increased sale price of the targeted Pagedale Property. In other words, we believe that CBAM was not obligated to inform Alps of its intent to purchase the Pagedale Property specifically. Rather, we find that Alps’ knowledge at the time of the parties’ agreement that CBAM needed to sell its Chouteau Property in order to purchase another larger property and expand its business operations was sufficient to support the damage award for the increased purchase price of the Pagedale Property.

Substantial evidence in the record supports a finding that Alps knew, before entering the sale contract for the Chouteau Property, of CBAM's business plans and intent to purchase a larger building. The goal of securing a replacement property for Picturesque Graphics was communicated to Alps and to each party's broker and banker. Exhibit 3, an email dated November 7, 2019—almost three weeks prior to contract execution—from Alps’ broker to Mr. Chakraverty stated, “Sid, as a side note, please remember he [Mr. McDowell for CBAM] said he's willing to lease back for a year until he locates or builds the perfect building.” CBAM's broker testified he informed Alps’ broker that “[m]y client is looking for 1.4 million. It's part of his strategy to upsize to a different building, and that's what he wants.” CBAM's broker continued, “I made it clear from the beginning” to Alps and its brokers that “the reason [Mr. McDowell] was selling was to move to a larger facility—he needed the space to grow his business—and that he needed to take the cash out of his current building to be able to put into the new building and business, and this included retooling his operation as well.” (emphasis added).⁵

To allow sufficient time to locate a replacement property and transition Picturesque Graphic's business in stages, Mr. McDowell specifically required the special terms and conditions set forth in section 23.2 of the sale contract. Section 23.2 was a post-closing lease-back provision in the sale contract that allowed CBAM to lease the Chouteau Property for a minimum of nine months and for as long as 21 months. Alps was to draft a lease in accordance with the terms set forth in the sale contract for CBAM's review within 15 days of contract execution, and the parties were to execute the lease prior to closing.

The email reminding Mr. Chakraverty of CBAM's desire to lease the Chouteau property while it procured a new building, inclusion of the specific lease provisions among the special terms and conditions set forth in the sale contract, as well as the testimony of Mr. McDowell and CBAM's broker belie an assertion that the record is devoid of evidence that Alps could envision CBAM's acquisition of the Pagedale Property hinged on the Chouteau Property sale contract. It is uncontroverted that Alps knew before executing the sale contract of CBAM's intent, upon the sale of the Chouteau Property, to “take the cash out of [its] current building to be able to put into the new building and business.” We have been directed to no authority that requires a seller of real estate to inform the buyer in detail of the seller's precise post-sale plans—right down to the address of the replacement property the seller plans to purchase using proceeds from sale of its current property. And we have been directed to no authority that requires the seller to negotiate with the buyer to memorialize and incorporate those precise plans into the sale contract. It was reasonable for the trial court to infer Alps knew the acquisition of replacement property, even if not specifically Pagedale, hinged on the sale of the Chouteau Property.

The trial court's power to fashion equitable relief is broad and flexible. 27A Am. Jur. 2d Equity section 98. Sitting in equity on this breach of contract claim—accompanied by two intentional tort claims—the trial court had broad discretion to do complete justice.

B. Damages For Slander Of Title

Consequential damages, or special damages, are among the damages available for slander of title. Restatement, section 633 cmt. i. Special damages are the natural, though not the necessary, result of the wrongful act. Lau v. Pugh, 299 S.W.3d 740, 751 (Mo. App. S.D. 2009). For instance, “if it can be proved with reasonable certainty that [a property owner] could obtain another loan only at a higher rate of interest, the loss of the favorable interest rate is a result directly and immediately caused by the disparagement [of owner's property] and is recoverable.” Restatement, section 633 cmt. i. And it is well-settled that “[a]ttorney's fees expended in clearing a disparaged title are recoverable as special damages in a slander of title action.” Dumler, 585 S.W.3d at 353 (quoting Lau, 299 S.W.3d at 750); see also First Nat'l Bank, 311 S.W.3d at 867 (stating attorney's fees incurred to remove cloud on plaintiff's titles were sufficient basis to establish pecuniary loss or injury).

In Dumler, the Western District found that the plaintiff's testimony that she incurred $30,000 in attorney's fees and also that she was prevented from marketing her home because of the defendant's invalid lien supported the trial court's damage award.⁶ 585 S.W.3d at 353. “[A] plaintiff sustains damages in slander of title ‘[s]o long as [the false] instrument remains on the public record against the property uncancelled ․ complicating, interfering with and rendering uncertain the outcome of any efforts plaintiff might make to transfer the property.’ ” Id. (quoting Greenlake Inv. Co. v. Swarthout, 161 S.W.2d 697, 699 (Mo. App. St.L.D. 1942)).

In Tongay v. Franklin County Mercantile Bank, 735 S.W.2d 766, 770 (Mo. App. E.D. 1987), our Court reversed a grant of summary judgment for the defendant, finding that the plaintiffs satisfactorily pled pecuniary loss along with the other elements of slander of title and that genuine issues of material fact existed. The Court observed that “[e]ven where a petition fails to allege special damages and even though the plaintiff suffers no substantial actual damages, the plaintiff would be entitled on proof of such charges to recover an award of nominal actual damages. An award of at least nominal damages could in turn sustain an award of punitive damages.” Id.

While decisions in other jurisdictions are not binding on our Court, they can provide informative and insightful guidance regarding the broad nature of damages recoverable for slander of title, including damages for impairment of vendibility; mortgage interest paid while vendibility was impaired; loss of sale, mineral lease, or other pecuniary advantage; punitive or exemplary damages; and attorney's fees. See, e.g., Solley v. Navy Fed. Credit Union, Inc., 397 S.C. 192, 723 S.E.2d 597, 606-08 (S.C. Ct. App. 2012) (finding that: (1) plaintiff entitled to recover attorney's fees and litigation costs; (2) record contained sufficiently clear and convincing evidence for award of punitive damages; and (3) plaintiff not entitled to special damages arising from inability to sell property for full value, inability to sell at all, or inability to obtain loan because she did not attempt any of these actions); Gillmor v. Cummings, 904 P.2d 703, 708 (Utah Ct. App. 1995) (special damages for slander of title include lost sale or other pecuniary advantage and attorney's fees); Rorvig v. Douglas, 123 Wash.2d 854, 873 P.2d 492, 496-98 (1994) (having stated that “actual damages are difficult to establish and often times are minimal in slander of title” and “[f]airness requires the plaintiff to have some recourse against the intentional malicious acts of the defendant,” Court held that (1) trial court properly awarded damages based on interest incurred on plaintiffs’ mortgage while cloud on title impaired property's vendibility, and (2) remanded to trial court to determine and award plaintiffs damages based on attorney's fees); 105 E. Second St. Assocs. v. Bobrow, 175 A.D.2d 746, 573 N.Y.S.2d 503, 504 (1991) (impairment of vendibility is important factor in determining damages for slander of title and fact that properties may have been marketable should not deprive party of compensation to extent vendibility was impaired); Williams v. Jennings, 755 S.W.2d 874, 884-86 (Tex. App. 1988) (affirming award of $23,075 in actual damages, which represented prevailing $500-per-acre bonus for oil leases when landowner discovered cloud on her title versus the nonexistent leasing opportunities at the time of trial four years later; $65,000 in exemplary damages; and prejudgment interest); Fountain v. Mojo, 687 P.2d 496, 501 (Colo. App. 1984) (accrual of interest from time of proposed closing with third party until lis pendens removed is pecuniary loss resulting directly and immediately from effect of injurious falsehood and is properly recoverable as damages for slander of title); Summa Corp. v. Greenspun, 98 Nev. 528, 655 P.2d 513, 517 (1982) (malicious filing of void deed of trust resulted in proper award of $1,000,000 in punitive damages); Home Inv. Fund v. Robertson, 10 Ill.App.3d 840, 295 N.E.2d 85, 88 (1973) (plaintiff entitled to recover costs and attorney's fees directly related to quieting title “and to those damages directly related to slander of title, i.e., loss of vendibility, etc.”).

Here, the false lis pendens remained on CBAM's Chouteau Property and caused CBAM to sustain ongoing damages for nearly four years, impairing the Property's vendibility as it was rendered unmarketable and potential buyers refused to contract with CBAM upon learning of the lis pendens.⁷ Equity and fairness require CBAM have some recourse against Alps, as CBAM lost its ability to sell the Chouteau Property, the opportunity to purchase a replacement property at a lower price, and a favorable interest rate.

C. Damages For Fraudulent Misrepresentation

Missouri courts have upheld a similarly broad range of damages for fraudulent misrepresentation. See, e.g., Ries, 359 S.W.3d at 143-46 (affirming $160,000 in actual damages for diminished value of land, $17,000 attorney's fees and costs, and $60,000 punitive damages); Saddleridge Estates, 323 S.W.3d at 437 (stating that although contract did not provide for monetary damages, trial court had authority to award monetary damages on the fraud claims, and affirming plaintiff's recovery of incidental losses and expenses suffered as result of defendants’ misrepresentation, including $55,000 allowance for rock removal on defendants’ purchase of subdivision lot); CADCO, 220 S.W.3d at 430, 441-42 (Mo. App. E.D. 2007) (affirming judgment for fraudulent and negligent misrepresentation, removing $35,000 offset in damages, and entering judgment for plaintiff of $1,735,352.18).

Generally, in cases of fraud or deceit, the defendant is responsible for those injurious results that must be presumed to have been within his or her contemplation at the time the defendant committed the fraud. Hanes v. Twin Gable Farm, Inc., 714 S.W.2d 667, 670 (Mo. App. W.D. 1986). A plaintiff may recover damages for any injury that is the direct and natural consequence of acting on the faith of the defendant's representations. Id. “[I]f the application of the benefit-of-the-bargain rule will not make a [party] whole, because the [party] has suffered an injury not encompassed by the rule, but one that nevertheless follows as a natural and ordinary consequence of the wrong, additional damages are allowed.” 37 Am. Jur. 2d Fraud and Deceit, section 386.

Here, Mr. Chakraverty is a knowledgeable and highly experienced real estate developer with a reputation as a “very shrewd, and tough” negotiator. Mr. Chakraverty testified that he was very familiar with the area of the Chouteau Property and that he owned and had developed multiple parcels of land in the area, including another property within half a mile of the Chouteau Property. The trial court determined Alps had engaged in two intentional torts against CBAM in addition to breaching the sale contract. As the fact finder, the court could reasonably infer that Alps, as a knowledgeable, experienced, and shrewd real estate developer, fully understood CBAM's position before Alps entered the sale contract; that Alps chose to fraudulently misrepresent its intentions when the parties went under contract; that Alps knew the gamble it took in forcing CBAM into litigation to “pursue any remedy at law or in equity” as set forth in the sale contract; and that Alps intentionally rendered CBAM's property unmarketable for years with a bad-faith counterclaim and lis pendens. The fact finder could reasonably infer that Alps took these actions as sequential steps in furtherance of a plan to exploit the situation and compel CBAM to give in to Alps’ demands.

Being highly experienced real estate professionals and “very shrewd, and tough negotiators” that knew of CBAM's business plans, Alps could reasonably contemplate—when it chose to embark on its acquisition strategy for the Chouteau Property—that warehouse/industrial properties suitable for relocation and expansion of Picturesque Graphics’ business would parallel overall St. Louis market trends and increase significantly in price during the years of litigation. Likewise, Alps could reasonably contemplate that CBAM would incur a higher interest rate for a commercial real estate loan as interest rates generally rose over the same period. Indeed, the trial court found that Alps’ filing of the lis pendens when it terminated the contract in 2020 and in the face of its repeated denials of the sale contract's enforceability demonstrated Alps’ malicious intent and “that the lis pendens was simply a high-risk/high-stakes litigation tactic designed to generate litigation leverage.” This is precisely what Alps warned it would do when it threatened to tie up the Chouteau Property in litigation when the parties disagreed over the second amendment to their agreement.

Further, the trial court observed that Alps was at all times “an assetless shell that does not have a bank account or file any tax returns.” The court found Mr. Chakraverty “also confirmed that any property [Alps] acquires is placed in a ‘single-asset LLC prior to closing,’ thereby making it even more burdensome on an injured party seeking to recover the damages it suffers if [Alps] fails to perform under the Sale Contract.” For these reasons, we disagree with any contention that Alps’ fraudulent misrepresentation was too remote to be the proximate cause of CBAM's increased costs in acquiring a replacement property.

D. Evidence Of CBAM's Damages Related To Purchasing The Pagedale Property

We have affirmed the trial court's judgment that Alps engaged in the intentional tort of fraudulent misrepresentation, never intending to perform the contract under the agreed terms. Alps then breached the sale contract with CBAM as contemplated by its fraudulent misrepresentation. Alps followed its breach of contract by falsely and maliciously filing a lis pendens, resulting in slander of title, a second intentional tort. CBAM adduced evidence to support recovery of damages under breach of contract, fraudulent misrepresentation, slander of title, or any combination thereof.

Mr. McDowell testified he had been looking for a larger property for Picturesque Graphics since 2016. He explained the plan was “to move, just sort of migrate across, in phases over a period of probably one year—that's what we expected, possibly.” CBAM's broker made it clear from the beginning of communications with Alps—and before contract execution—that CBAM intended to purchase a larger building, and “needed to take the cash out of [its] current building [the Chouteau Property] to be able to put into the new building.”

Mr. McDowell testified he looked at numerous properties, “too many to even take a guess,” but had honed in on four. The properties were Pagedale, which Mr. McDowell ranked first; Tree Court, which he ranked second; Gustine; and Lindbergh. On December 4, 2019, some 10 days after the contract was executed, Mr. McDowell emailed his broker that the Pagedale Property had the most potential. Pagedale was the smallest and most appealing property at the time.

CBAM introduced Exhibit 57, an advertising brochure for the Pagedale Property, from early December 2019. The list price of Pagedale was $795,000 at that time. The Pagedale Property was about 8,000 square feet smaller than CBAM thought ideal, so CBAM had obtained cost estimates on building out the property. Mr. McDowell testified that the Pagedale Property would have been a good replacement property because “the price was right”; the lot was larger than CBAM's current property and could accommodate expansion of the building; Pagedale had 18-foot ceilings to accommodate warehousing operations; “[t]he offices were nice”; and Pagedale was closer to CBAM's largest clients and convenient for most of its employees. CBAM's broker undertook initial inquiries and believed the Pagedale Property might be obtained for $695,000 in 2020 after sale of CBAM's Chouteau Property.⁸ CBAM lost the opportunity to purchase a replacement property at a lower cost and interest rate than was available at the time of trial in January 2025.

Mr. McDowell testified that starting in August 2020, prices in the commercial real estate segment that CBAM was targeting for its replacement property “started tightening up,” and interest rates rose as well. CBAM's real estate broker testified that since early December 2019, inventory levels had fallen for available properties in the warehouse/industrial segment that fit CBAM's parameters. As inventory shrank, both rental and sale prices rose, and CBAM's broker estimated an approximate increase of about 20 percent generally.

Pagedale was the only property known to be on the market on the date of trial. CBAM introduced Exhibit 58, a then-current advertising brochure for the Pagedale Property showing a list price of $1,285,000. CBAM's broker confirmed that Pagedale was back on the market for a higher price than in 2019. Based on exterior photos of the property in Exhibits 57 and 58, the broker could see no exterior change to the Pagedale Property. CBAM's broker had reached out to the broker for the Pagedale Property, but had not heard back.

In June 2022, CBAM “tested the water” with an oral offer on Mr. McDowell's second-choice replacement property, Tree Court.⁹ No written offer on Tree Court was ever submitted because the owner would not entertain the amount orally proposed by CBAM's broker. CBAM's banker testified the bank would have given CBAM a loan of up to $2,000,000 if it had wanted to pursue the Tree Court property in 2022. The bank was able to tell Mr. McDowell immediately that CBAM qualified for a $2,000,000 loan because the bank had “looked at maybe a similar price range or something for a previous deal” on a property of interest to CBAM. The finder of fact could reasonably infer that the previous deal was for purchase of the Pagedale Property.

Finally, CBAM's commercial real estate appraiser conducted a market analysis based on the change in market conditions from fourth quarter 2019 to third quarter 2023 and updated his report as of third quarter 2024. CBAM introduced these market analyses as Exhibits 51 and 52, respectively. The appraiser “surveyed industrial brokers in the St. Louis market area as well as looked at market surveys to determine what the differences were in terms of price, federal rates, vacancy, [and] absorption levels.” The appraiser also looked at three submarkets of interest to CBAM. The appraiser concluded there was a 25% to 30% increase in sale prices overall. The market analyses indicate sale prices for the submarket where the Pagedale Property was located typically increased 29.1% by late 2024. The appraiser's surveys of brokers revealed that some properties had increased in price by as much as 60% in late 2023 and 45% in late 2024.

Alps’ fraudulent misrepresentation and breach of the sale contract followed by its slander of CBAM's title proximately caused CBAM to face significantly higher cost for purchase of a replacement property, which Alps knew was CBAM's goal and its reason for selling the Chouteau Property. Sitting in equity, the trial court had discretion to allow CBAM damages resulting from the increase in commercial property prices in order to place CBAM in the position in which it would have been if Alps had not fraudulently misrepresented its intent to perform under the terms of the contract, breached the contract, and slandered CBAM's title. See Cal-Val Constr., 636 S.W.2d at 392 (if plaintiff's breach proximately caused defendants to lose loan commitment, court had discretion to allow defendants credit for increased interest rates to place them in position they would have been in had plaintiff fulfilled contract); Dunning, 483 S.W.2d at 429 (holding substantial evidence supported $5,000 damage award where contract price to construct house was $23,525 while cost of constructing same house at time of trial was $28,600).

Alps contends in Point Two that there was no evidence CBAM ever seriously intended to purchase the Pagedale Property or that CBAM ever communicated its plans to Alps. We disagree. CBAM identified multiple reasons why the Pagedale Property was the best fit for its needs, evidencing that CBAM conducted considerable research. CBAM obtained estimates on expanding the building, and obtained a commitment from its bank for a $1,000,000 loan. CBAM's broker made inquiries and determined CBAM could probably purchase the property in 2020 for $695,000. CBAM adduced sufficient evidence that it seriously intended to purchase the Pagedale Property after selling its Chouteau Property.

Alps also contends in Point Two that CBAM never communicated its plan to purchase the Pagedale Property to Alps. Before the sale contract was negotiated and signed, CBAM's broker informed Alps and its brokers that CBAM's intent was to sell the Chouteau Property, lease it back until CBAM could purchase a replacement property, and transition Picturesque Graphics’ business to the replacement property. Alps does not dispute that it knew CBAM wanted to buy another property. Rather, Alps contends CBAM was obligated to inform Alps of the exact property it planned to purchase.

Alps cites W.C. Hardesty Co. v. Schaefer, 139 S.W.2d 1031 (Mo. App. St.L.D. 1940), to support its argument that CBAM was obligated to inform Alps of its intent to purchase a specific replacement property. In that case, the plaintiff purchased a tank of what was purported to be prime tallow from the defendant for the purpose of producing triple-pressed stearic acid. 139 S.W.2d at 1033. However, the tallow the plaintiff received was adulterated with other substances, and could not be used to produce stearic acid. Id.

The W.C. Hardesty plaintiff adduced no evidence of the difference in market value of the prime tallow it ordered versus the market value of the adulterated tallow it received. Id. at 1034. Instead, the plaintiff sought damages based on the difference in the value of the product obtained by processing the adulterated tallow delivered and the value of the stearic acid that would be obtained by processing the same quantity of unadulterated prime tallow. Id. The Court noted that a plaintiff's typical measure of damages in an action for breach of contract of this nature is the difference between the contract price and the market value of the goods actually delivered by the defendant. Id. at 1035. Therefore, the defendant, to be held liable for consequential or special damages for breach of contract must have had knowledge of the intended use of the particular goods for producing triple-pressed stearic acid, and to have contracted with a view to that use. Id.

The W.C. Hardesty case is inapposite. That case was pled and tried only on a breach of contract theory for the defendant's failure to deliver the precise material for which the parties contracted, and damages were awarded based on breach of contract. Id. at 1032-33. In that context, it was reasonable to consider whether the defendant knew of the specific intended use for its materials in the plaintiff's production process and contracted with a view to that use, considerations which have no application in this commercial real estate case involving breach of contract and two intentional torts. CBAM proved its claims for fraudulent misrepresentation, breach of contract, and slander of title, and the damages the trial court awarded were not necessarily limited to those for breach of contract. We reiterate that we will affirm the trial court's judgment as to the calculation of damages under any reasonable theory supported by the evidence. Dumler, 585 S.W.3d at 353 n.8. See also, Williams, 755 S.W.2d at 884 (“Appellants also argue in point of error fifteen that appellee failed to prove Williams Company had notice that she would suffer special damages. However, we are unable to find that such notice is an element of a slander of title action.”).

Under the circumstances here, we find that Alps had sufficient notice of CBAM's plan to use the proceeds from the sale of the Chouteau Property to purchase a larger replacement property for Picturesque Graphics’ operations. CBAM was not required to inform Alps in advance of the exact property that CBAM wanted to purchase in order to support an award of consequential or special damages in tort.

E. Evidence Of CBAM's Damages Related To Interest Rates For Commercial Loans

In addition to the increased prices for warehouse/industrial properties, interest rates also climbed in the intervening years since Alps fraudulently misrepresented its intent to perform under the terms of the contract, breached the contract, and then slandered CBAM's title. We reject Alps’ argument in Point Three that there was no evidence that CBAM suffered any real loss as to the increased interest rates because it took no steps towards procuring an interest rate.¹⁰

Alps cites Dunning v. Alfred H. Mayer Co. for the proposition that a “change in interest rates for the Pagedale Property was not a foreseeable measure of damages because there is no evidence that CBAM committed itself to that loan at any point.” 483 S.W.2d at 429. Dunning is distinguishable. Initially, we note that Dunning was a pre-Murphy v. Carron case. Id. at 427. Thus, the Court reviewed the case de novo, weighing the competent evidence, reaching its own conclusions, and entering such judgment as the trial court should have entered. Id. That is not our current standard of review.

Dunning is also factually distinguishable. There, the plaintiff buyers entered into a contract to purchase a subdivision lot from the defendants and for defendants to build a new home on the lot. 483 S.W.2d at 424-25. The defendants failed to build the home. Id. at 425. Under the circumstances of that case, the Dunning Court rejected an award of damages for the higher interest rate applicable at the time of trial to any loan the plaintiffs would need to finance the purchase of an existing home or the purchase of a replacement lot and construction of a house. Id. at 429. The Court found the record lacked any evidence that the plaintiffs actually took steps to contract for the purchase of another home in the four years prior to trial, nor had they become obligated in any manner to pay any increased interest rates. Id. As the Court noted in Cal-Val Construction Co. v. Mazur, “We did not hold [in Dunning] that losses caused by increased interest rates are not recoverable in a suit for specific performance. Rather, we held that because the buyers were in no way committed to taking a loan at the higher interest rate, they would suffer no actual loss as a result of the increased interest rates.” 636 S.W.2d at 393.

Here, however, CBAM had taken steps to secure financing from its bank for a specific loan amount and term and had a plan in place for financing a replacement property. Mr. McDowell explained that CBAM had planned to borrow $1,000,000 with a 15-year note. According to Mr. McDowell, interest rates for commercial real estate had risen from 3% in late 2019 and early 2020 to 7% at the time of trial in early 2025, at an added borrowing cost of “[c]onservatively $245,000” for CBAM to undertake the plan it had in 2019 and 2020 to purchase a new property and transition its Picturesque Graphics business. CBAM's banker testified the bank looked at CBAM's financials for a deal on another property of interest to CBAM before considering the Tree Court property inquiry in 2022. Further, the plaintiffs in Dunning did not have their hands tied by an opposing party that, as we have concluded CBAM proved, falsely and maliciously acted to prevent them from moving forward with any other contract.

F. Summary Of Damages Awarded

In sum, the parties contracted for the sale of the Chouteau Property for $1,400,000. CBAM adduced evidence at trial that if Alps had not fraudulently misrepresented its intent to perform under the contract terms and breached the sale contract, CBAM would have had the funds it needed and could have purchased the Pagedale Property in 2020 for $795,000 and expanded the building, using a $1,000,000 loan approved by CBAM's bank at an interest rate of 3.5%. Alps then slandered CBAM's title to the Chouteau Property, rendering the Property unmarketable for several years, and preventing CBAM from mitigating its damages. In the nearly five years between Alps’ breach and trial, property prices rose 25% to 30%, generally. Sale prices for the submarket where the Pagedale Property was located, typically increased 29.1% by late 2024. At the time of trial, the Pagedale Property was listed for $1,285,000, an increase in sale price of $490,000. In addition, interest rates had risen from 3.5% in 2020 to 7% at the time of trial, and the evidence showed such an increase would cost an additional $245,000 over the life of a 15-year, $1,000,000 loan.

CBAM proved its claims. We have found that Alps fraudulently misrepresented its intention to perform under the terms of the sale contract, breached the contract, and then falsely and maliciously rendered the Chouteau Property unmarketable for nearly four years by filing a lis pendens, preventing CBAM from moving forward with the purchase of the Pagedale Property it had targeted as a replacement property and causing pecuniary loss to CBAM. Because Alps’ fraudulent misrepresentation, followed by its breach of the sale contract, followed by its slander of CBAM's title proximately caused CBAM to lose its bank's loan commitment for a commercial real estate loan, the trial court sitting in equity had discretion to allow CBAM damages resulting from the increase in interest rates in order to place CBAM in the position it would have been in had Alps fulfilled the contract and not slandered CBAM's title. Cal-Val Constr., 636 S.W.2d at 392; see also, Smith, 584 S.W.3d at 397 (“Having found that Smith will incur a higher interest rate with his mortgage because of the Najafis’ failure to close on the sale, the trial court should have awarded Smith an additional $9,166.95 to compensate for the increased interest rate).

We hold the trial court, sitting in equity, properly awarded CBAM the $490,000 in damages representing the increased cost CBAM will incur in buying a replacement property. We deny Point Two. Based on the same reasoning, we hold the trial court properly awarded CBAM $89,000 in damages representing the present value of the cost for the higher interest rate CBAM will incur for a commercial real estate loan. We deny Point Three.

Point Four—CBAM Is Entitled To The Earnest Money As Damages

In Point Four, Alps challenges the award of the earnest money to CBAM:

The trial court erred in holding CBAM was entitled to the earnest money because any award of earnest money lacked substantial evidence in its support, as Missouri courts must adhere to the contractual terms upon which the parties agreed in that even viewing the evidence in the light most favorable to the trial court's judgment, the evidence showed only that CBAM waived its rights to the earnest money under the express terms of the contract that allowed for the seller to either accept the earnest money as liquidated damages or pursue a remedy at law, such that any award amounted to a double recovery for CBAM.

Alps contends the trial court erred when it awarded CBAM the $50,000 in earnest money because CBAM chose to pursue litigation instead of opting to accept the earnest money. Alps argues that CBAM forfeited the earnest money under the express terms of the contract, and that the award of the earnest money plus increased acquisition costs of the Pagedale Property and increased interest rates represents an impermissible double recovery.

Section 11(a) of the sale contract provides that upon Alps’ default, CBAM may accept the earnest money and interest thereon as liquidated damages in lieu of making any claim in court. Alternatively, CBAM may pursue any remedy at law or in equity. We have already determined that Alps breached the sale contract as discussed in Point Six. Thus, Alps’ assertion is unavailing that CBAM was not entitled to the earnest money because Alps was not in default.

Second, when Alps breached the contract, CBAM sought to obtain the earnest money to which it was entitled under the contract. But Alps prevented CBAM from obtaining the earnest money, in lieu of pursuing litigation, by threatening to sue the title company if it released the earnest money to CBAM. The trial court found that Alps’ actions nullified CBAM's option of accepting the earnest money as liquidated damages. “It is a general, fundamental maxim of the common law that no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own inequity ․.” Cork v. St. Charles County, 10 S.W.3d 608, 609 (Mo. App. E.D. 2000). Alps violated the express terms of section 11(a), and left CBAM no option but to pursue litigation. Alps also engaged in fraudulent misrepresentation and slandered CBAM's title. Alps shall not now be heard to complain.

The trial court's award of the earnest money along with increased costs for purchasing and financing a replacement property do not represent a double recovery, given our analysis in Points Two and Three. We deny Alps’ fourth point.

CBAM's Motion For Attorney's Fees On Appeal

CBAM, as the prevailing party on all claims and counterclaims, seeks attorney's fees on appeal as provided in section 11 of the parties’ contract in the amount of $46,555.50 plus time spent appearing for oral argument.¹¹ Further, it is well established that “attorney's fees expended in clearing a disparaged title are recoverable as special damages in a slander of title action.” Dumler, 585 S.W.3d at 354 (quoting Lau, 299 S.W.3d at 749).

The entitlement to attorney's fees on appeal stands upon the same grounds as at the trial court level, and appellate courts have the authority to allow and fix the amount of attorney's fees on appeal. Id. We typically remand to the trial court to determine and award attorney fees, as the trial court “is better equipped to hear evidence and argument on this issue and determine the reasonableness of the fee requested.” Id. (quoting Rosehill Gardens, Inc. v. Luttrell, 67 S.W.3d 641, 648 (Mo. App. W.D. 2002)). Eastern District Local Rule 400 was recently amended, however, to require motions for attorney's fees on appeal to include “a detailed list of the fees incurred for each legal service on appeal.” We are charged with finally disposing of the case, unless justice requires otherwise, and may “give such judgment as the court ought to give.” Rule 84.14.

With its motion for attorney's fees on appeal, CBAM provided an affidavit of appellate counsel, reporting hours spent on the various work involved in defending Alps’ appeal at a discounted hourly rate of $315 for Mr. Hein and $300 for Mr. Mabie. We find the hourly rates and hours expended reasonable and award CBAM attorney's fees on appeal in the amount of $46,555.50.

Conclusion

We affirm the judgment of the trial court. CBAM's motion for attorney's fees on appeal is sustained, and we award CBAM $46,555.50.¹²

Dissent

I respectfully dissent from the majority's holding that Respondent CBAM was entitled to special damages in the form of $490,000 for the increased acquisition cost of the Pagedale Industrial Court property and an additional $89,000 attributable to the increased interest rate for a commercial loan. I agree that the circuit court properly awarded CBAM the $50,000 in earnest money and the collective $101,663 in attorney's fees as allowed by the sales agreement. However, Missouri law precludes the circuit court from awarding additional, special damages which, in these circumstances, essentially grants CBAM with double damages or a windfall. Sanders v. Gould, 685 S.W.3d 589, 598 (Mo. App. E.D. 2024) (“[A] party is not entitled to be made more than whole or receive more than one full recovery for the same harm.”) (citations omitted). In the alternative, awarding CBAM with attorney's fees is the appropriate mechanism to recover “reasonable expenses incurred by the plaintiff in removing the cloud from [its] title” caused by Alps filing the lis pendens without justification. Lau v. Pugh, 299 S.W.3d 740, 750 (Mo. App. S.D. 2009) (citations omitted).

After ruling in favor of CBAM on all three causes of action, the circuit court failed to specifically attribute both the $490,000 and the $89,000 in damages as the intended relief linked to the breach of contract claim, fraudulent misrepresentation and/or slander of title claim(s). After failing to attribute this relief to a specific cause of action, the court ruled CBAM is entitled to these awards as “damages.” Certainly, the circuit court is vested to enter judgment against Alps on all three counts but the law does not allow it to award special damages that were never contemplated, discussed or memorialized in the party's agreement. Kim v. Conway & Forty, Inc. 772 S.W.2d 723, 728 (Mo. App. E.D. 1989).

I would reverse the $490,000 award in special damages because 1) these damages were not foreseeable as required under a breach of contract cause of action; 2) special damages outside of attorney's fees are unavailable relief under the circumstances affecting this particular slander of title claim and 3) the Pagedale property's appreciation in value does not justify special damages under fraudulent misrepresentation, in my opinion. I would also reverse the judgment awarding CBAM an additional $89,000 attributable to the increased interest rate for a commercial loan because this award is based on speculation and is not supported by substantial evidence.

As an initial matter, I disagree that equitable considerations provide the circuit court with inflated powers when crafting this remedy at law. I agree that “Missouri trial courts have jurisdiction to try cases involving requests for equitable relief and damages at law in one proceeding,” but I disagree that the circuit court can expand its authority contrary to statutory and caselaw boundaries when crafting remedies at law. State ex rel. Leonardi v. Sherry, 137 S.W.3d 462, 473 (Mo. banc 2004). It may be true that “[a] court's power to order equitable relief is broad and flexible․[however,] equitable powers may not be used to provide relief that is contrary to statutory or constitutional requirements.” 27 Am. Jur. 2d Equity, section 98 (2026). When a court sitting in equity grants damages at law, they must comply with the requirements of each claim at law. See Craig v. Jo B. Gardner, Inc., 586 S.W.2d 316, 325 (Mo. Banc 1979).

Under CBAM's claim of breach of contract, the $490,000 in special damages were not foreseeable to Alps because CBAM failed to sufficiently communicate its intentions to acquire Pagedale as a replacement property as a condition of the Chouteau sale. Birdsong v. Bydalek, 953 S.W.2d 103, 116-17 (Mo. App. S.D. 1997) (citing Restatement (Second) of Contracts section 351 (1981)). Both the circuit court and the majority appropriately point to Alps’ ongoing, difficult behavior after signing the agreement as impeding the closing and sabotaging the deal. While true and significant evidence regarding liability, it lacks any evidentiary value when determining special damages and the record is devoid of evidence that Alps could envision that CBAM's acquisition of the Pagedale property specifically hinged on the Chouteau agreement.

While CBAM argues that the special damages attributable to the Pagedale property value's appreciation were a natural, foreseeable consequence of Alps’ breach, an absence of evidence within the record disproves this. Significantly, their contract did not require Alps to pay an appreciated value for replacement land should Alps breach the contract. In fact, the agreement fails to mention any condition, clause or language relating to any replacement property. See Quigley v. Jones, 255 Ga. 33, 334 S.E.2d 664, 665 (1985) (“[T]here can be no recovery for [loss of use of net sales proceeds for the property defendants failed to purchase] in the absence of a clause in the parties’ contract expressly authorizing such recovery”). Under their agreement, the only available damages were forfeiting the earnest money and paying attorney's fees, which the circuit court correctly awarded.

“In breach of contract actions, ‘in addition to recovering the benefit of [the] bargain, a plaintiff may also recover for damages naturally and proximately caused by the commission of the breach and for those that could have been reasonably contemplated by the defendant at the time of agreement.’ ” Gill Const., Inc. v. 18th & Vine Auth., 157 S.W.3d 699, 717 (Mo. App. W.D. 2004) (quoting Crank v. Firestone Tire & Rubber Co., 692 S.W.2d 397, 402 (Mo. App. W.D. 1985)). “[A] breaching party is only liable for those consequences that were reasonably foreseeable at the time the parties entered into the contract.” Id. (quoting Birdsong, 953 S.W.2d at 116).

Following the record, it is unclear when – if ever – Alps learned that CBAM intended on targeting the Pagedale location. It is further unclear when – or if ever – Alps ever discovered that finalizing their agreement would affect CBAM's ability to purchase Pagedale specifically. When arguing that it provided Alps with sufficient notice of its intentions to relocate to Pagedale, CBAM refers to an email expressing this desire in Exhibit 5. However, the evidence demonstrates CBAM identified the Pagedale property as its ideal replacement property in an internal email that was never sent to Alps. Exhibit 3 is an email between the Alps broker and its owner indicating CBAM has expressed a desire to lease the property on Chouteau until it can “locate( ) or build( ) the perfect building.” Not only is this writing lacking in specificity regarding a location of interest, but now CBAM has expanded its range of potential interest from existing structures to even exploring construction alternatives. This additional language about construction creates more uncertainty about their intentions about when, where and under what conditions they will relocate. Again, Exhibit 3 does not reference Pagedale, the property value selected by the court for damages. Significantly, CBAM's owner, Carl McDowell, corroborated in his testimony that CBAM failed to inform Alps of its plan to purchase the Pagedale property. Conversely, the circuit court concluded that CBAM did identify Pagedale as an ideal replacement property but not until “nine (9) days after (it) signed the Sale Contract.” Even if Alps somehow learned of CBAM's plans to purchase Pagedale following this email, the law does not allow this relief when the breaching party's knowledge comes after the agreement. Id. (quoting Birdsong, 953 S.W.2d at 116). Rather, the breaching party is only liable for the damages that were reasonably foreseeable when the parties entered the contract. Id.

While I agree with the majority that CBAM adequately communicated its need to “take money out of the building” in order to buy a replacement property in Exhibit 3, and this notion is further reinforced by the leaseback provision in section 23.2 of the sale contract, I do not believe this generalized intention offers an avenue to foreseeability and most certainly does not make Alps liable for the Pagedale property's appreciation. See Restatement (Second) of Contracts, Section 351 cmnt. a. If this court allows recovery of special damages based on notice of a general intention instead of a specific plan, Missouri defendants would be vulnerable to practically unlimited liability. In other words, defendants would be on the hook for the appreciation linked to any property the plaintiffs may have considered, even if that property is millions of dollars more expensive or located where property values appreciate more rapidly than the property originally under contract. Considering the record demonstrates that Alps lacked any knowledge of CBAM's plan to buy Pagedale specifically, the judgment is not supported by substantial evidence.¹

Additionally, I also disagree with how the circuit court calculated these damages. Even assuming Alps was sufficiently aware of CBAM's intentions to acquire Pagedale, a conclusion that is not supported by substantial evidence, the record does not demonstrate that Alps could have “reasonably contemplated” that this property would increase 62% in value between the parties executing the contract in 2019 and the trial in 2025, also required under the law. Id. (quoting Crank, 692 S.W.2d at 402). Rather, the circuit court's opinion states that CBAM proved by substantial evidence that it selected the Pagedale property as its ideal replacement property, the property was on the market both when the contract was signed as well as at the date of trial and the price of the Pagedale property rose $490,000. Again, the evidence does not justify the circuit court awarding this relief, and in this amount, especially when CBAM's owner disavowed giving Alps notice of its intention to relocate to any specific property, including Pagedale.

Second, special damages of this type are equally unavailable under a slander of title claim, rather attorney's fees are the proper method of relief following successful litigation. Solley v. Navy Fed. Credit Union, Inc., 397 S.C. 192, 723 S.E.2d 597, 605-06 (S.C. Ct. App. 2012) (citing Neff v. Neff, 247 P.3d 380, 401 (Utah 2011)). The majority points to this case as justifying an award but my interpretation suggests the opinion more narrowly limits the boundaries affecting special damages.

The Solley court explains that a party is eligible for special damages “if a slanderous statement forces a party to sell land at a reduced price․” or “[t]o the extent that․legal action is reasonably necessary to remove clouds from the party's title, the party may recover those attorney[’s] fees.” Id. at 605-06. The Solley court excludes special damages not directly related to the clouded title as available relief following a slander of title claim. Id. at 604-06. The court instructs CBAM that attorney's fees is the appropriate mechanism to “remove the cloud from their title” and recover damages caused by Alps filing the lis pendens without justification. Id. at 604 (citing Neff, 247 P.3d at 401).

Further, “[special damages do] not include any loss resulting from the plaintiff's failure to make an advantageous use of money that he would have made if a prospective sale had been consummated, since this is not the direct and immediate consequence of the injurious falsehood․” Restatement (Second) of Torts section 633 cmnt. i (1977). Following the Restatement logic explaining that a party is not entitled to special damages attributable to the lost profits from a sale that would have been consummated but for the falsehood, it seems reasonable to similarly conclude that CBAM should not benefit from the increase in value of a property that it did not even contract to purchase. Id.

Missouri law reflects this understanding explained in Solley and the Restatement. It explicitly allows plaintiffs to recover attorney's fees and other legal fees rooted in a slander of title claim. Lau, 299 S.W.3d at 748-49. Missouri law also allows plaintiffs to recover special damages stemming from impairment of vendibility or value due to a slandered title. Id. at 749 (citing Restatement (Second) of Torts section 633); see also V.J.M. Assoc. Inc. v. Gilmore, 44 S.W.3d 440, 441 (Mo. App. E.D. 2001) (noting that plaintiff failed to establish special damages because he failed to allege he was “interested in selling the [property], that he ha[d] tried to sell the [property], or that if he did try to sell the [property], that any buyer [had become] disinterested” as a result of the slandered title). My review of Missouri law limits special damages as directly tied to the impairment of the slandered property's value or vendibility and does not stray into supplemental relief such as the increased acquisition cost for alternative properties.

Here, the circuit court specifically awarded damages based on the Pagedale property's rise in value which was not a “direct[ ] and immediate[ ]․impairment of vendibility or value caused by” Alps’ slander of title affecting the Chouteau parcel. Solley, 723 S.E.2d at 605. Pagedale's appreciation in value stands independent of any actions by Alps and is an inappropriate basis for special damages in a slander of title action. In a slander of title claim, courts are authorized to award either general or punitive damages which are distinguishable from special damages. See, e.g., Ries v. Shoemake, 359 S.W.3d 137, 144 (Mo. App. S.D. 2012); Tongay v. Franklin Cnty. Mercantile Bank, 735 S.W.2d 766, 770 (Mo. App. E.D. 1987). General or punitive damages may be appropriate in this case, however the learned circuit court instead awarded special damages based on Pagedale's appreciation and interest rate changes. I specifically disagree with those damages which are disallowed under the law.

Third, the circumstances in this case do not justify special damages for CBAM's fraudulent misrepresentation claim. In fraudulent misrepresentation cases, special damages may be recovered when they are “necessarily incurred solely by reason of the fraud.” Little v. Morris, 967 S.W.2d 685, 686 (Mo. App. S.D. 1998) (citing Miller v. Higgins, 452 S.W.2d 121, 125 (Mo. 1970)). Special damages in fraud claims “must flow from fraud as the proximate and not the remote cause.” Thoroughbred Ford, Inc. v. Ford Motor Co., 908 S.W.2d 719, 735 (Mo. App. E.D. 1995) (citations omitted). The fraud claim is too remote and is not the proximate cause of the Pagedale property value increase. See, e.g., Hanes v. Twin Gable Farm, Inc., 714 S.W.2d 667, 671 (Mo. App. W.D. 1986) (“[S]pecial damages occasioned by the fraudulent sale of diseased animals[ ] includ[ed] cost of extra care, attention and feed necessitated by the disease, as well as expenditures for medical care and treatment, veterinarian services, drugs, medicines, and damages for the spreading of the disease to other animals of the buyer.”). Alps’ bad conduct is isolated to the activities surrounding the Chouteau sales agreement and is completely unrelated to the Pagedale property increase, making these damages inapplicable under fraudulent misrepresentation.

Saddleridge Estates, Inc. v. Ruiz, cited by the majority, is instructive. 323 S.W.3d 427 (Mo. App. W.D. 2010). In that case, the defendants contracted to buy a piece of land, with a contractual term requiring them to build a home on the lot. Id. at 430. The defendants requested and received a $55,000 allowance to excavate rock that was preventing home construction. Id. at 436. After the defendants failed to build a home, the plaintiffs sued and a jury found that the defendants had fraudulently misrepresented their intentions to build a home. Id. at 437. The Western District affirmed the $55,000 award in special damages based on the rock excavation allowance because those damages were “incidental losses and expenses suffered as a result of the [defendants’] misrepresentations.” Id.

Unlike the costs necessary to care for diseased livestock represented to be healthy, or a rock excavation allowance tied to a property sale where the buyers misrepresented their intention to build a house, the increased acquisition cost in this case is not directly and necessarily the result of Alps fraudulently misrepresenting that it intended to buy the Chouteau property. The increased acquisition cost was not “necessarily incurred solely by reason of fraud,” so Alps’ fraudulent misrepresentation cannot justify an award of special damages based on the Pagedale property. Little, 967 S.W.2d at 686.

Finally, I would also reverse the circuit court judgment awarding the $89,000 attributable to the increased interest on a loan necessary to secure a replacement property and relocate the Chouteau property tenant because it is not supported by substantial evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Missouri law does not allow recovery for an increase in interest rates unless the plaintiff had an interest rate “committed to him.” Smith, 584 S.W.3d at 397 (quoting McDermott v. Burpo, 663 S.W.2d 256, 264 (Mo. App. W.D. 1983)). Without a firm commitment to an interest rate, an award is based on speculation. See McDermott, 663 S.W.2d at 264 (denying interest rate special damages because plaintiffs “had no loan commitment until․after the date of closing․failed to adduce evidence on the rate of interest on the permanent or end loan” and therefore the “increased financing costs․could only rest upon speculation and conjecture”). This is not the only factor contributing to speculation, making the award flawed. Additional, multiple, undefined variables such as the ultimate loan amount, the length of the loan repayment period and even where CBAM would relocate among five properties of varying selling prices further contribute to the speculation surrounding the proposed loan. In my opinion the record lacks specific, definitive evidence demonstrating that CBAM had committed to a loan. While CBAM's plans are unclear about when, where or under what evolving conditions it would ultimately relocate, it is equally speculative that a formal loan arrangement was negotiated and finalized. Id. McDowell may have testified about his general intentions to obtain a loan, but the record is unclear about an existing, definitive loan commitment as required under Missouri law. McDermott, 663 S.W.2d at 264. In my opinion, awarding a judgment attributable to the increase in the interest rate was error and was not supported by substantial evidence.

Following the agreement and Missouri law, the circuit court correctly awarded CBAM the earnest money and attorney's fees. Conversely, I would reverse both the $490,000 award in special damages stemming from the Pagedale property's increase in value and the additional $89,000 attributable to the increased interest on a loan as well as remand to the learned circuit court to enter a judgment consistent with these directions.

FOOTNOTES

1.   A triple net lease (NNN) requires the tenant to pay property taxes, insurance, and maintenance costs. Investopedia, Triple Net Lease (NNN): Definition, Uses, And Investment Insights, https://www.investopedia.com/terms/t/triple-net-lease-nnn.asp (last visited Mar. 20, 2026).

2.   The identified contingencies are Alps’ satisfaction of the following: (a) title and survey inspection; (b) property and records inspection; (c) Alps’ review of executed tenant estoppel certificate(s); (d) permanent loan; (e) satisfaction/waiver of contingencies; and (f) CBAM's time to respond. Section 8(e) provides that:Each of the above contingencies is for the sole and subjective benefit of Buyer. Subject to this paragraph (e) and (f) below, if Buyer notifies Seller that it has not satisfied or waived each of the above contingencies by 5:00 p.m. on or before the date specified for each in writing, this Contract shall, at the close of business on the applicable date, terminate without further action of the parties, and in such event, all Earnest Money and interest thereon, shall be promptly returned to Buyer. If Buyer fails to notify Seller in writing within the applicable stated period that any contingency has not been satisfied or waived, such contingency shall be deemed satisfied.(Emphasis added).

3.   Both parties and the trial court refer to Alps’ second notice of termination as Exhibit 24, but this exhibit is not in the record before us.

4.   An appellant challenging a judgment as not supported by substantial evidence must complete three sequential steps:(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;(2) identify all of the favorable evidence in the record supporting the existence of that proposition; and,(3) demonstrate why that favorable evidence, when considered along with the reasonable inferences drawn from that evidence, does not have probative force upon the proposition such that the trier of fact could not reasonably decide the existence of the proposition.Houston, 317 S.W.3d at 187.

5.   Both parties communicated and negotiated through their respective brokers.

6.   The Dumler Court noted that the trial court's finding was incorrect that the plaintiff “did not plead or prove specific (sic) damages,” which suggests that the evidence supported an award of special damages covering the loss of vendibility of the plaintiff's home in addition to her attorney's fees. 585 S.W.3d at 353 n.8. The plaintiff, however, did not appeal the trial court's award of special damages in the approximate amount of her attorney's fees.

7.   Widely disseminated injurious falsehood, such as a falsely and maliciously recorded lis pendens, “may cause serious and genuine pecuniary loss by affecting the conduct of a number of persons whom the plaintiff is unable to identify, and so depriving him of a market that he would otherwise have found. When this can be shown with reasonable certainty, the rule requiring the identification of specific purchasers is relaxed and recovery is permitted for the loss of the market.” Restatement, section 633 cmt. h.

8.   The trial court found too speculative evidence that the Pagedale Property could have been purchased in 2020 for $695,000, and thus creating an even larger difference between its price in 2020 versus the 2025 price.

9.   The record reveals that Mr. McDowell considered making an offer of $2,000,000 on the Tree Court property, thus indicating that Tree Court cost considerably more in 2022 than Pagedale cost even at the time of trial.

10.   Mr. McDowell also testified that because of Alps's actions, CBAM was compelled to renew its loan on the Chouteau Property. CBAM's interest rate on that loan rose from a variable rate between 3.1% and 3.5% during the contract period to a rate of between 7% and 9% at the time of trial.

11.   Section 11 of the sale contract provides in relevant part that “[i]n the event of litigation (including mediation/arbitration, if applicable) between the parties, the prevailing party shall recover, in addition to damages or equitable relief, the cost of litigation including reasonable attorney's fees.”

12.   All other pending motions are denied.

1.   I disagree that Alps failed to follow the Houston v. Crider framework and only identified evidence contrary to the judgment. 317 S.W.3d 178, 186 (Mo. App. S.D. 2010). Alps followed this framework by: 1) identifying the challenged factual proposition stating that CBAM informed Alps of its intention to purchase Pagedale; 2) identifying the exact evidence the circuit court relied on when awarding damages based on the Pagedale property's appreciation, specifically Exhibit 5; and 3) explaining that this evidence cannot support the proposition because it was an internal email that was not sent to Alps. This identification and analysis satisfy the Houston requirements. Section 23.2 of the sales contract and Exhibit 3 are not evidence supporting the proposition that CBAM informed Alps of the Pagedale property, and, therefore, Alps was not obligated to identify them in its analysis.

Angela T. Quigless, Judge

Renee D. Hardin-Tammons, Presiding Judge, concurs and Thomas C. Clark, II, Judge, dissents in separate opinion.