Tribus, LLC v. Greater Metro, Inc.

589 S.W.3d 679

TRIBUS, LLC, Appellant,

v.GREATER METRO, INC., Respondent.

No. ED 107460

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: November 19, 2019

FOR APPELLANT, John C. Drake, Gregory C. Mollett, Greensfelder, Hemker & Gale, P.C., 10 South Broadway, Suite 2000, St. Louis, Missouri 63102.

FOR RESPONDENT, Caitlin L. Stayduhar, Daniel J. Welsh, Jill R. Rembusch, Stephen C. Hiotis, Summers Compton Wells, 8909 Ladue Road, St. Louis, Missouri 63124.

Philip M. Hess, Presiding Judge

Introduction

Tribus, LLC ("Tribus") appeals from the trial court’s entry of judgment for Greater Metro, Inc. ("Greater Metro"), in which it rejected Tribus' breach-of-contract claim against Greater Metro and granted Greater Metro’s breach-of-contract counterclaim against Tribus. Tribus brings five points on appeal. Finding no merit to any of Tribus' points, we affirm the judgment.

Factual and Procedural History ¹

1. Contract Obligations and Performance

Tribus is a custom software developer headquartered in St. Louis, Missouri, that builds digital tools, including websites and customer management relationship software ("CRM"), and markets them to real estate brokerages. Greater Metro² is a residential real estate brokerage company. Roughly 350 real estate agents are affiliated with Greater Metro. Real estate agents affiliated with Greater Metro are independent contractors, not employees, of Greater Metro. On October 27, 2013, Tribus and Greater Metro executed a Consulting, Product Development & Licensing Agreement ("Contract"), which provided Tribus would create, design, and deploy a custom company website for Greater Metro; license both basic websites and upgraded websites to agents affiliated with Greater Metro; license CRM to Greater Metro; and provide content marketing services.

The term of the Contract was "thirty-six (36) months beginning on the date the [company] website is functionally deployed and accepted by [Greater Metro]." The Contract provided Greater Metro agreed to timely furnish, at its own expense, all information, items, and personnel required to complete the Contract. The Contract provided that if Greater Metro made no payment within thirty days of its due date, Greater Metro would be in breach of the Contract and the amount unpaid would be subject to 18% interest per month until paid in full. In addition, the Contract included the following integration clause: "NO WAIVER, MODIFICATION, ALTERATION, OR ADDITION TO THIS AGREEMENT, INCLUDING THE WORK STATEMENT, SHALL BE VALID UNLESS IN WRITING SIGNED BY BOTH PARTIES. THIS AGREEMENT, AND THE WORK STATEMENT CONSTITUTE THE ENTIRE CONTRACT BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, CONDITIONS, AND PROPOSALS." Attached to the Contract was a "Statement of Work," which described the design and other services Tribus would provide Greater Metro. The Statement of Work provided the "[f]unctionality of each design must fall within the offerings of Tribus."

Agent Websites

The Contract provided Tribus would create basic agent websites for Greater Metro’s agents and Greater Metro would pay Tribus recurring charges of $5,500 per month for the first 250 user accounts and $22 per month for each additional user. The Contract also provided Tribus would create upgraded agent websites and Greater Metro would pay $980 per month to license twenty upgraded agent websites. No time frame for completing the agent websites was included in the Contract. However, based on correspondence it had with Tribus before executing the Contract, Greater Metro expected the agent websites to be available and functional immediately after the Contract’s execution. On October 25, 2013, two days before the Contract’s execution, Greater Metro emailed Tribus, stating:

I believe [Tribus] said that, while the company website would take 90 days to design and implement, the agent websites could be up much sooner. How is that? Wouldn't they be lacking content, IDX functionality,³ etc.? What components of their website would be available to them initially in a couple of weeks?

In response, Tribus did not dispute this time frame and stated: "[W]e don't need the company site to get MLS⁴ approval or setup the agent sites. We can definitely have them up and running within a week or two max." On October 27, 2013, the day of the Contract’s execution, Greater Metro emailed Tribus, stating: "New agent sites immediately and custom built website in 60-90 days." In response, Tribus also did not dispute this time frame.

Greater Metro and Tribus agreed Tribus would launch the agent websites before working on the company website. Tribus provided a placeholder for the company website to allow work on the agent websites before the company website went "live." Tribus "turned on" Greater Metro’s basic agent websites on December 9, 2013. When Tribus "turned on" the basic agent websites, Greater Metro’s agents could access and customize them. However, the agent websites were not "live" or accessible to the public until further action was taken by the agent to point his or her personal domain to Tribus' website.

In the following months, Greater Metro experienced several functional issues with the basic agent websites. "Agent About" boxes on the websites were not showing the agents' information. Agent websites included incorrect default header images and messages. MLS feeds were not displaying correctly for agents working as part of a team. MLS feeds were inconsistent among agent websites. Agents experienced difficulty linking themselves to their websites and opening search options in a new tab. "My Listing" headers appeared on agents' websites who had no listings. Many agents experienced difficulty logging on to their websites. The agent websites were difficult to customize, requiring agents to enter a code to change basic aspects of their websites, such as font or headings. Despite these issues, Greater Metro continued to work with Tribus to troubleshoot, as it wished to keep their relationship on an "even keel."

On December 20, 2013, eleven days after Tribus "turned on" the agent websites, Greater Metro contacted Tribus asking when the upgraded agent websites would be available to its agents. Tribus responded it would make the upgraded agent websites available "asap" once it received a list of agents eligible to receive an upgraded website. Upon Tribus' receipt of the agent list on December 20, 2013, Tribus told Greater Metro the upgraded agent websites were not ready because custom coding needed to be completed. Tribus stated the upgraded agent websites would be ready in early January 2014. On January 29, 2014, Tribus informed Greater Metro that lead routing integration was still being completed on the upgraded agent websites. On February 11, 2014, Greater Metro asked Tribus to make the upgraded agent websites available. On February 13, 2014, Greater Metro emailed Tribus asking whether the upgraded agent websites were complete, stating, "When we signed our contract for services we were led to believe this was already up and running and ready to go." On February 24, 2014, Greater Metro emailed Tribus asking why Greater Metro could not access the upgraded agent websites. Ultimately, only four of the 350 Greater Metro agents successfully pointed their personal domains to their Tribus websites.

Company Website

The Contract provided Tribus would create a custom company website for Greater Metro and Greater Metro would pay Tribus $10,750 according to the following schedule: $5,375 upon execution of the Contract, $2,687.50 upon final design approval, and $2,687.50 twenty-four hours before the company’s website’s official deployment. The Contract stated the company website would be designed according to Greater Metro’s specifications set forth in a design questionnaire. No time frame for completion of the company website was included in the Contract. However, based on correspondence it had with Tribus before executing the Contract, Greater Metro expected the company website to be completed within sixty to ninety days after the Contract’s execution. On October 25, 2013, two days before the Contract was executed, Greater Metro emailed Tribus: "I believe [Tribus] said that ... the company website would take 90 days to design and implement[ ]...." Tribus did not dispute this time frame in its response to Greater Metro. On October 27, 2013, the day of the Contract’s execution, Greater Metro emailed Tribus, stating: "New agent sites immediately and custom built website in 60-90 days." Tribus also did not dispute this time frame in its response to Greater Metro.

Greater Metro paid Tribus $5,375 on October 28, 2013, and completed a design questionnaire regarding the company website on November 1, 2013. On November 18, 2013, Tribus produced an initial design of the company website for Greater Metro’s review. On November 27, 2013, Greater Metro told Tribus the initial design did not follow Greater Metro’s specifications. On December 31, 2013, Greater Metro followed up with Tribus, seeking a status update on the progress of the company website’s design. In response, Tribus told Greater Metro it had "put things with the site on the backburner" and had not been working on it between November 27, 2013, and December 31, 2013. In early January 2014, Tribus produced a second design for the home page of the company website. Greater Metro responded with feedback on January 8, 2014.

On February 11, 2014, over three months after the Contract’s execution, Greater Metro sent a message to Tribus requesting a meeting to review the latest draft of the company website design. On March 3, 2014, Greater Metro inquired whether Tribus could complete the company website within thirty days. Tribus responded it would need an additional thirty to thirty-five days to complete the company website after obtaining Greater Metro’s final approval. Greater Metro never accepted and approved a final design for the company website, and the company...