Kinetic Energy Develop.
v.
Trigen Energy

Missouri Court of Appeals, Western DistrictDec 8, 1998
No. WD54751 (Mo. Ct. App. Dec. 8, 1998)

No. WD54751

SUBMITTED: August 20, 1998 OPINION FILED: December 8, 1998

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY , THE HONORABLE WILLIAM E. TURNAGE, JUDGE.

Phillip S. Smith, Kansas City, MO, for appellant[s].

Byron J. Beck, Kansas City, MO, for respondent[s].

Before Smart, P.J.; Ellis and Howard, JJ.


Kinetic Energy Development Corp. ("Kinetic Energy") brought an action in quantum meruit against Trigen Energy Corporation ("Trigen") and obtained a jury verdict in the amount of $4,271,000.00. After trial, the circuit court granted Trigen's motion for judgment notwithstanding the verdict ("JNOV") or, in the alternative, for new trial. Kinetic Energy appeals, claiming that the trial court erred in granting Trigen's motion for JNOV. Kinetic Energy also contends that the trial court abused its discretion in granting a new trial to Trigen. The trial court's grant of judgment notwithstanding the verdict is reversed. The trial court's grant of a new trial is affirmed.

Facts

In 1987, Kansas City Power and Light Company ("KCPL") wished to abandon its ownership of the Kansas City District Steam System ("KC Steam System") and convert its customers to electricity. The KC Steam System was comprised of two parts: (1) a power plant known as the Grand Avenue Station; and (2) a distribution system of underground pipes. The steam system industry is regulated by the Missouri Public Service Commission ("PSC"). KCPL petitioned the PSC for permission to abandon the KC Steam System, discontinue steam service to its customers and convert those customers to electricity. The PSC opened a docket to investigate the matter, held hearings and took evidence.

On October 7, 1987, the PSC ordered KCPL to make a good faith effort to sell the KC Steam System. That order provided:

ORDERED: 1. That Kansas City Power Light Company shall make a good faith effort to sell its central distribution steam system and shall prepare a request for proposals as set out in this report and order.

ORDERED: 2. That Kansas City Power Light Company shall report to the Commission on or before January 1, 1989, as to the result of its efforts to sell the system.

ORDERED: 3. That Kansas City Power Light Company shall be authorized to abandon central district steam service as of December 31, 1990.

ORDERED: 4. That Kansas City Power Light shall not terminate service to any steam customer under a transfer of the system or until December 31, 1990, if the sale effort is not successful.

ORDERED: 5. That Kansas City Power Light Company's proposal to convert steam customers to electric heating equipment be, and it is, hereby rejected.

In response to the PSC's order, KCPL prepared a Request for Proposals ("RFP") on January 25, 1988, stipulating that interested parties submit proposals by March 25, 1988. The RFP provided, in pertinent part:

KCPL shall consider only those proposals for the purchase of the Business which are submitted in accordance with the terms and conditions of this RFP.

* * * *

Sealed Proposals must be received by KCPL on or before 3:00 p.m. on March 25, 1988. . . .

Earnest money (certified or cashier's check only) in the amount of $100,000.00 shall accompany each Proposal.

* * * *

KCPL reserves the right to reject any or all Proposals at any time before or after Proposal opening. KCPL further reserves the right after Proposal opening to negotiate with any party and vary or alter any term or condition as KCPL, in its sole discretion, may deem advantageous, and KCPL shall have no obligation to any party as a result of any such negotiations. If KCPL rejects all Proposals, KCPL nevertheless reserves the right to attempt to negotiate a sale to any party submitting a Proposal or to others as it may deem appropriate.

Kinetic Energy received a copy of both the PSC's order and a copy of KCPL's RFP. It began a developmental process, gathering background and operational information on the KC Steam System. On March 24, 1988, Kinetic Energy submitted a proposal to purchase the KC Steam System. Kinetic presented KCPL with two options: (1) the purchase of both the Grand Avenue Station and the distribution system for $6,000,000.00; or (2) the purchase of the distribution system for $4,000,000.00.

KCPL received three other proposals to purchase. Only one other proposal, from Catalyst Thermal, proposed to pay any money for the system. Trigen, although it had received a copy of the RFP from KCPL, did not submit a proposal. By letter dated May 24, 1988, KCPL conditionally accepted Kinetic Energy's proposal for purchasing the steam distribution system for $4,000,000.00, stating:

Kansas City Power Light Company (KCPL) hereby accepts the proposal of Kinetic Energy Development Corporation (Kinetic), dated March 24, 1988, to purchase KCPL's steam distribution system in downtown Kansas City, Missouri, for the price of four million dollars ($4,000,000.00) (Option 2).

Pursuant to the terms of KCPL's request for Proposals, this acceptance is conditioned upon (a) negotiation, on a definitive basis, of all remaining terms and conditions of the agreement, (b) reaching acceptable sales documents, including documents respecting the provision of steam by KCPL to Kinetic, (c) KCPL and Kinetic acquiring all necessary regulatory and other approvals and franchises, and (d) the satisfaction of all other terms and conditions of the Request for Proposals.

At the same time that Kinetic Energy was working on the acquisition of the KC Steam System, it had obtained development rights in district steam systems in Tulsa, Oklahoma and Oklahoma City, Oklahoma ("Oklahoma Project").

Kinetic Energy and KCPL began negotiating final sales documents. At the same time, Kinetic Energy continued to gather information concerning all aspects of the KC Steam System — technical, operational, financial, environmental, regulatory and marketing information. The development process was described by the President of Kinetic Energy, William Schmidt, in his testimony at trial:

At this point in time we started our specific development process, taking and coordinating and formulating together the five or six major ingredients that have to come together to have a successful business. That involves negotiating with the seller for the specific terms of a sale agreement, taking that information at the same time and going to possible financial partners or financial institutions to see if the relationship between the seller and the purchaser would be acceptable to the terms of the person financing it and gathering additional information, technical information, to be refined for permits, evaluating and taking specific steps towards the development of the marketplace and seeing, for instance, if like in Oklahoma the contracts could be transferred to a new purchaser.

In Kansas City you would be looking at the rate structure and potential for new customers to be added to the system. You would gather technical and operational information. Now that you had established a relationship with the purchaser you could now get into more specific information which may not have been available to anyone or a person investigating it at an earlier stage. So you now are getting into very detailed analyses of the staffing they have for the facility and the specific contracts they have for the fuel supplies, the details of their environmental permits, what can be transferred and what has to be reapplied for. The aspect in the business plant is what steps would you take to change any of those ingredients, perhaps the operations. Would you operate any different to be more efficient? What kind of technical controls do you change on the boiler facility and make it more efficient and the pollution control to be more efficient and maybe better comply with the standards?

* * * *

We had brought B.C. Christopher, Brad Max, into our project team at that time to give us advice from a local viewpoint on the type of financial structure that could be put together for obtaining financing for this kind of a project. Steam systems or energy projects in the industry have a certain approach to financing those that you would have differently than buying a house or buying a dry cleaner or shoe store. So we were now after gathering all of this information evaluating it and having a proposal in a general structure of how we were going to purchase the system and relaying those on to different financial institutions or partners for development.

Kinetic Energy began looking for a financial partner for both the KC Steam System project and its Oklahoma Project. Kinetic Energy and Trigen subsequently entered into negotiations regarding a financial partnership.

In December 1988, KCPL expressed concern over the lack of progress in the negotiations because of Kinetic Energy's inability to arrange financing. KCPL advised Kinetic Energy that a signed sales agreement had to be executed by December 30, 1988. No such agreement was forthcoming. On December 30, 1988, KCPL wrote Kinetic Energy that because there was no signed sales agreement, "KCPL's conditional acceptance of your March 24, 1988, proposal is withdrawn and of no further force or effect, and we consider these negotiations to be concluded." However, additional negotiations between KCPL and Kinetic Energy continued into January 1989. No agreement was reached.

Kinetic Energy and Trigen continued negotiations, and on January 13, 1989, an "Agreement to Join the Trigen Family" was sent to Mr. Schmidt and to Jerry Corbier, an officer of Kinetic Energy. The Agreement proposed that Kinetic Energy's rights be given to Trigen. Trigen agreed to "pay or reimburse [Kinetic Energy] an amount up to $620,000.00 total for [its] documented and verified costs of bringing the development of the projects to the stage of the date hereof (of which the maximum payable towards Oklahoma systems' development costs will be $90,000.00 and the maximum payable for Kansas City will be $530,000.00)." Kinetic Energy provided Trigen with documentation and other information relating to its expenses and development work. Kinetic Energy continued to work on the KCPL project after January 13, 1989, at Trigen's request. Mr. Schmidt testified:

We had met with them, and they had sent certain staff people out here to Kansas City to start investigating the systems, and they had asked us to send them all of our background information for them to review as far as what had been done in development work towards the Kansas City project. So the term "due diligence" that they do on their own with their own staff people will confirm the information that was gathered as background in development work.

* * * *

It was all of our background work which would have included a draft of the steam sales distribution agreement we had been negotiating with Kansas City Power Light, a copy of our business plan that we had been generating during this period of time, step number 5C, any other background information. We had technical information that we had accumulated, a large stack of information, maintenance and operation information on operating the steam distribution and the Grand Avenue station. We investigated the Public Service Commission process and had done additional work on the environmental permitting investigating on what steps needed to be done for that. We had had some — our outside consultants, part of our original team, Brad Max from B.C. Christopher, Bibb Associates, an engineering consultant here in Kansas City, and Jerry Finnegan, an attorney familiar with the Missouri Public Service Commission, to gather information for our development work.

The PSC recommended extending and continuing the negotiations between Kinetic Energy and KCPL. Although the PSC acknowledged Trigen's entry into the process, its recommendation focused on discussions and negotiations between Kinetic Energy and KCPL; Trigen was not formally a party to the proceedings. During negotiations, the parties explored Kinetic Energy's other proposal to KCPL — the sale of both the Grand Avenue Station and the distribution system for $6,000,000.00.

In April 1989, Mr. Corbier, originally an officer of Kinetic Energy, began working for Trigen. He moved to Oklahoma, assuming the position of president of a Trigen subsidiary. Trigen now wished to buy out Kinetic Energy's development rights and interests in the KC Steam System. An agreement ("Buyout Agreement") between Kinetic Energy and Trigen, dated May 23, 1989, provided:

Buyout of Kansas City Project Development Rights. You [William Schmidt] and Kinetic shall also sell to Trigen all of your development rights in the Kansas City Project. The price to be paid for such development rights in developing the Kansas City Project (the " Kansas City Buyout Price") shall be calculated in the same manner as was used to calculate the Oklahoma Buyout Price, as shown in the formulas set forth in the computer run attached to this letter as Exhibit A. . . . To the Kansas City Buyout Price shall be added an amount equal to $271,000, as reimbursement for expenses incurred by you prior to the date hereof in connection with the Kansas City Project. . . .

* * * *

Entire Agreement. This letter constitutes the entire agreement between you, Kinetic and Trigen and its subsidiaries, and supersedes all prior agreements between us, including, but not limited to, the January 13, 1989 letter from Trigen to yourself and Jerry Corbier. . . .

On June 1, 1989, Kinetic Energy, Trigen and KCPL entered into a "Memorandum of Understanding" ("Memorandum"). In the Memorandum, KCPL agreed to sell the Grand Avenue Station and the distribution system to Trigen for $6,000,000.00. Kinetic agreed to pass all the rights that it had in the system to Trigen and agreed not to compete with Trigen for ten years. The Memorandum made the sale conditional upon: approval by the PSC; agreement by the City of Kansas City to equal tax treatment; transfer of an existing contract with National Starch (a major customer) to Trigen; no major loss of users of the KC Steam System from the date of the Memorandum to the closing date; and approval by the Boards of Trigen and KCPL. The Memorandum gave a date of September 1, 1989, as the deadline for closing the sale.

Kinetic Energy continued to perform development work for Trigen, including looking into technical and operational matters. It gathered additional information relating to the sales and marketing of steam. After June 1, 1989, Trigen retained Mr. Schmidt as a consultant and paid him a monthly fee. As of this date, Mr. Schmidt and Kinetic Energy were no longer involved in work related to the purchase of the KC Steam System.

On July 6, 1989, Trigen-Kansas City, a wholly-owned subsidiary of Trigen, and KCPL applied for final approval of the sale with the PSC. A hearing on the matter was held on December 19, 1989, and December 21, 1989. On December 29, 1989, the PSC approved the sale, acknowledging that Trigen had the technical and financial ability to acquire and operate the KC Steam System. On March 30, 1990, the final sale agreement between Trigen and KCPL was completed.

Trigen and Kinetic Energy could not reach an agreement as to what Kinetic Energy was owed under the Buyout Agreement. Kinetic Energy repeatedly requested information from Trigen regarding the status of the sale of the KC Steam System, but Trigen did not respond to these requests. Negotiations between Trigen and Kinetic Energy continued into March 1990. Mr. Schmidt testified that he was not satisfied with what Trigen was telling him because "[i]t was a fraction of what [he] had put into developing the project." Although Trigen has never paid Kinetic Energy for its services relating to the KC Steam System, it did pay Kinetic Energy $1,200,000.00 for its development rights in the Oklahoma Project.

On March 29, 1990, Kinetic Energy filed a petition for injunctive relief and declaratory judgment. Later, Kinetic Energy voluntarily dismissed the petition. It refiled on August 4, 1994. On November 3, 1994, it filed an amended petition alleging breach of contract, unjust enrichment, quantum meruit, conversion, breach of fiduciary duty and tortious interference with contract. The first trial on Kinetic Energy's petition ended in a mistrial. The second trial (the subject of this appeal) began April 14, 1997. The case was submitted to the jury on the quantum meruit count.

During the trial, Kinetic Energy presented evidence of damages through the testimony of Carl Avers, a mechanical engineer and president of Thermal Ventures:

Q. Now, in this case, Mr. Avers, turning to the heart of the matter, you were asked to render an expert opinion as to the fair and reasonable value of what Kinetic furnished to Trigen; is that correct?

A. Yes.

Q. Now, before we get into the numbers tell us — well, what did you value?

A. I valued the development rights and the winning of the bid. From my perspective when you win the bid you have the right to acquire the system. So I evaluated what that right would — what that value would be.

Q. Included in that was there development work included in the package you valued?

A. Yes.

Q. Briefly just explain development work. Just give us an overview of what that term means.

A. Well, as you had shown on the exhibit you typically when you find out whether a system is for sale then you begin a process where you go through the process to eventually get to a signed deal and beyond. So as I explained you gather information. You visit the system. You literally crawl through boilers and go through manholes and gather as much technical and business information as you can. You develop a business plan. That is a strategy for taking the physical assets and building it into a business and often times restructuring or refocusing the business. Then you take that profile to the seller. It is either agreed to or not agreed to. Typically you negotiate until you get to the point where both the seller and the buyer are happy and are willing to make a transaction. Then you document that transaction into a sale and purchase agreement.

* * * *

Q. Do you have a professional opinion to a reasonable degree of certainty as to the reasonable value and fair market value of Kinetic's development rights and development work on the Kansas City District Steam System as of the 1988 time period?

A. Yes, I do.

Q. What is that opinion?

A. My opinion is the net value to the owners is between $6.7 million and $9.2 million.

Q. I'm sorry. What would be the value and fair and reasonable value of Kinetic's development rights and development work, their portion? What would that be?

A. It's 50 percent of that or $3.4 million. It's between $3.4 million and $4.6 million.

* * * *

A. So then if you take away the purchase price and the immediate capital improvements from the total value you would come down to a net value of 6.8 to 9.2 million. That represents the total value to the new owners. My valuation is Kinetic and Trigen should share that 50/50 based on past practices. So that would put a value to Kinetic or Trigen of the 3.4 million range to 4.6.

Q. So this is the range here that in your opinion Kinetic should be paid?

A. Yes, sir. That would be the range.

The jury returned a verdict in favor of Kinetic Energy in the amount of $4,271,000.00. Trigen filed a motion for JNOV or, in the alternative, new trial. On August 6, 1997, the trial court granted Trigen's motion, stating:

The plaintiff submitted its claim on the theory of quantum meruit for the reasonable value of goods and services furnished to defendant. Plaintiff presented Carl Avers as its expert to prove the reasonable value of the goods and services plaintiff claimed to have furnished. Mr. Avers was asked the same question at least four times on direct. Mr. Avers answered by stating his opinion that "the net value to the owners is between 6.7 million and 9.2 million dollars." He stated the fair and reasonable value of development rights and development work would be 50% or between 3.4 and 4.6 million dollars. Mr. Avers explained how he arrived at his value. First he established the market value of the Kansas City District Steam System. From that he subtracted the purchase price paid by Trigen and an amount required for immediate capital improvements. He applied a formula based on the cash flow generated by the system and arrived at a value. He took 50% of that figure to arrive at his range of 3.4 to 4.6 million dollars.

On cross-examination Mr. Avers stated his definition of development rights was the right to acquire the system. Mr. Avers further stated on cross-examination that he did not place a value on the services or work Kinetic performed. He further stated that the individual services Kinetic performed was not relevant to his process. He stated th[at] he "valued the market value of a system that was being transferred." He reiterated that he was asked to place a value of the system if it was sold.

Mr. Avers never gave an opinion of goods and services Kinetic furnished Trigen.

The issue submitted to the jury was the reasonable value of goods and services furnished to Trigen by Kinetic. The only evidence offered by Kinetic as to value related to the value of the Kansas City Steam System. In fact, Mr. Avers stated he did not value the specific services or work performed by Kinetic.

In view of the testimony of Mr. Avers outlined above, it must be concluded that Kinetic failed to prove an essential element of its case — the reasonable value of the goods and services it furnished to Trigen. Therefore, the motion for judgment notwithstanding the verdict is sustained.

In the alternative, in the event the judgment notwithstanding the verdict entered herein is vacated or reversed, the motion for new trial is sustained on the grounds stated in paragraphs 1, 2, 11, 26 and 28 in the motion for new trial.

Kinetic Energy appeals.

JNOV

In its first point, Kinetic Energy asks that we review the trial court's grant of a JNOV to Trigen because Kinetic Energy sufficiently proved its quantum meruit damages. Review of the trial court's rulings on motions for a JNOV is performed regarding the evidence in the light most favorable to the jury's verdict. Seitz v. Lemay Bank Trust Co. , 959 S.W.2d 458, 461 (Mo. banc 1998). We look at all favorable evidence and reasonable inferences flowing therefrom, discarding all unfavorable evidence and inferences. Id . We will affirm the trial court's grant of a JNOV only where we find that the plaintiff failed to make a submissible case. Jungerman v. City of Raytown , 925 S.W.2d 202, 204 (Mo. banc 1996). A presumption exists favoring the reversal of a JNOV. Faust v. Ryder Commercial Leasing Servs. , 954 S.W.2d 383, 388 (Mo.App. 1997). We leave a JNOV intact only where "the favorable evidence and inferences are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to the result." Id . (citations omitted). Where the trial court's grant of a JNOV is based upon a conclusion of law, we review its conclusion de novo. Jungerman , 925 S.W.2d at 204.

Essentially, a JNOV motion is a challenge to the submissibility of the case. Allstates Transworld Vanlines, Inc. v. Southwestern Bell Tel. Co. , 937 S.W.2d 314, 316 (Mo.App. 1996). Thus, the motion is properly granted where the evidence does not support one or more elements of the plaintiff's case. Breckenridge v. Meierhoffer-Fleeman Funeral Home, Inc. , 941 S.W.2d 609, 611 (Mo.App. 1997). In order to make a submissible case, the plaintiff must present substantial evidence supporting each element of his or her claim. Spring v. Kansas City Area Transp. Auth. , 873 S.W.2d 224, 225 (Mo. banc 1994). A JNOV has been referred to as a "drastic action," Gesellschaft Fur Geratebau v. GFG Am. Gas Detection, Ltd. , 967 S.W.2d 144, 146 (Mo.App. 1998), and as an "extreme measure." Wolfe v. Central Mine Equip. Co. , 895 S.W.2d 83, 86 (Mo.App. 1995).

Kinetic Energy contends that the trial court erred in granting Trigen's motion for JNOV because Kinetic Energy sufficiently proved each and every element of its case. Specifically, Kinetic Energy asserts that it proved its quantum meruit damages. "Quantum meruit is a remedy for the enforcement of a quasi-contractual obligation and is generally based upon the principle of unjust enrichment." Forry v. Department of Natural Resources , 889 S.W.2d 838, 847 (Mo.App. 1994) (citations omitted). Unjust enrichment arises when a benefit is conferred upon a party under conditions where that party's retention of the benefit without paying for it would be unjust. River's Bend Red-E-Mix, Inc. v. Parade Park Homes, Inc. , 919 S.W.2d 1, 4 (Mo.App. 1996). Where one renders valuable services to another, the law usually implies a promise to pay the reasonable value of the services. Esquivel v. Day's Inn of Branson , 959 S.W.2d 486, 489 (Mo.App. 1998). An action sounding in quantum meruit is based upon a person's implied promise of reasonable and just compensation in return for the performance of valuable services, performed at that person's behest or with his approval. Reid v. Reid , 906 S.W.2d 740, 743 (Mo.App. 1995). In order to sustain a claim for quantum meruit, the plaintiff must shoulder the burden of proving the reasonable value of services performed. Id .

Kinetic Energy contends that it provided ample proof of damages. It points to the testimony of Mr. Avers, the agreements with Trigen mentioning specific amounts in expenses, the payment to Kinetic Energy of $1,200,000.00 for the Oklahoma Project, and testimony of Mr. Schmidt concerning Kinetic Energy's expenses. Trigen contends that Kinetic Energy did not prove the reasonable value of its services because Mr. Avers' testimony did not establish such a value. It argues that Kinetic Energy makes its arguments relating to expenses for the first time on appeal and that the tentative agreements between the parties were useless to establish such expenses.

In analyzing the motion, the trial court was required to view the evidence in the light most favorable to the verdict, and to discard evidence and inferences contrary to the verdict. Although the evidence presented by Kinetic Energy may be susceptible to more than one interpretation, our standard of review requires that the evidence be viewed favorably to Kinetic Energy.

Kinetic Energy presented evidence that it performed developmental services during its quest to purchase the KC Steam System. After Trigen joined the process, first as a financial partner and later as the sole purchaser of the KC Steam System, it used materials researched and developed by Kinetic Energy. Moreover, Kinetic Energy presented evidence that it performed such services at Trigen's request. Although the parties bitterly disagreed about the value of these services, Kinetic Energy produced evidence that they were indeed valuable to Trigen, contrary to Trigen's evidence that Kinetic Energy's services had little or no value. There is room for reasonable minds to differ as to the result in this case.

Although the parties disagree over the worth of the testimony presented by Mr. Avers, this testimony did provide evidence of value:

A great portion of Trigen's argument is devoted to the credibility (or lack thereof) of Mr. Avers and the weight to be given his testimony. However, it is not our function to determine the weight of the evidence.

Q. Do you have a professional opinion to a reasonable degree of certainty as to the reasonable value and fair market value of Kinetic's development rights and development work on the Kansas City District Steam System as of the 1988 time period?

A. Yes, I do.

Q. What is that opinion?

A. My opinion is the net value to the owners is between $6.7 million and $9.2 million.

Q. I'm sorry. What would be the value and fair and reasonable value of Kinetic's development rights and development work, their portion? What would that be?

A. It's 50 percent of that or $3.4 million. It's between $3.4 million and $4.6 million.

Mr. Avers explained the basis for his opinion:

A. . . . My valuation is Kinetic and Trigen should share that 50/50 based on past practices. So that would put a value to Kinetic or Trigen of the 3.4 million range to 4.6.

Q. So this is the range here that in your opinion Kinetic should be paid?

A. Yes, sir. That would be the range.

Q. Tell us what you base your opinion on as to splitting that 50/50. How do you reach that analysis and opinion?

A. The value of a system to someone like Trigen where a project is developed and they are invited in to become a partner — that has traditionally been 50 percent. It is not always 50/50; but when we developed the system in Baltimore, Maryland, in 1985 we invited Catalyst in to be a 50 percent partner where they would put up all of the money; and we would operate and maintain it and split the profits. That was a 50/50 business arrangement in 1985. Currently a developer in California for the Orange County Heating and Cooling System had developed a project there. They brought it to our company. In this case they will operate it and maintain it. We are going to put up all of the money, and we will split the profits on a 50/50 basis and ownership.

Q. So again 50/50, your opinion, comes from real life experiences?

A. Yes.

Q. It happens in the marketplace?

A. It has happened frequently in the marketplace.

Kinetic Energy presented evidence of the value of its services to Trigen other than Mr. Avers' testimony. Various documents during negotiations showed that Kinetic Energy incurred certain expenses in its research. Mr. Schmidt testified that he "had put about $530,000 worth of effort and investment into Kansas City. I had put another 120,000 or 150,000 worth of effort into Oklahoma . . . ." Kinetic Energy presented evidence of the value of similar services, developing evidence of the $1,200,000.00 fee paid by Trigen to Kinetic Energy for the Oklahoma Project, a less valuable project.

The "Agreement to Join the Trigen Family" mentions a maximum payable for development costs of $530,000.00. The Buyout Agreement contains a formula adding $271,000.00 to the "price to be paid for such development rights in developing the Kansas City Project." Although quantum meruit is not an action on a contract, contract evidence may be introduced as prima facie evidence of value. Steinberg v. Fleischer , 706 S.W.2d 901, 907 (Mo.App. 1986).

Both Trigen and Kinetic Energy argue extensively over Mr. Avers' testimony and the characterization of the information provided by Kinetic Energy as "goods" or "services." It is apparent, from a close reading of the transcript, that the information provided by Kinetic Energy had mixed aspects of both. It would be a fair inference, however, to characterize the work performed by Kinetic Energy as a service. The parties also argue over the term "development rights" as used during the trial. Trigen points out that Kinetic Energy did not obtain ownership of the exclusive right to purchase the KC Steam System. While this is true, the evidence shows that Kinetic Energy had engaged in extensive research and negotiation before it ultimately abandoned its pursuit of the KC Steam System. The record contains various documents in which the parties acknowledge Kinetic Energy's efforts in the matter. The exclusivity of the "development rights" is immaterial for the purposes of this discussion, where our primary focus is on whether Kinetic Energy furnished something of value to Trigen. Kinetic Energy provided evidence that it had provided something of value to Trigen and evidence of that value.

Kinetic Energy submitted its case to the jury based on the following instructions:
INSTRUCTION NO. 6

Your verdict must be for Plaintiff Kinetic Energy Development Corporation and against Defendant Trigen Energy Corporation if you believe:

First, Plaintiff Kinetic Energy Development Corporation furnished services to Defendant Trigen Energy Corporation in the acquisition of the Kansas City Steam System, and

Second, Defendant Trigen Energy Corporation accepted such services.

INSTRUCTION NO. 8
If you find in favor of Plaintiff Kinetic Energy Development Corporation, then you must award Plaintiff Kinetic Energy Development Corporation the reasonable value of the services furnished.

In a related argument, Trigen complains that Mr. Avers' testimony was a valuation of the KC Steam System, not a valuation of the services provided by Kinetic Energy. A careful reading of Mr. Avers' testimony shows that the valuation of the KC Steam system was a component of the valuation of Kinetic Energy's services. Moreover, Trigen appears to be confusing the concepts of "cost" and "value."

Trigen relies heavily on Tax Lease Underwriters, Inc. v. Blackwall Green, Ltd. , 642 F. Supp. 1492 (E.D. Mo. 1986) for support of its position. Trigen claims that the facts in Tax Lease are almost identical to the facts in the instant case. In Tax Lease the defendants paid plaintiffs compensation for the plaintiffs' connection with the development and sale of a new type of insurance. Id . at 1497. The plaintiffs believed that they were owed more and sued defendants. The Tax Lease court held for defendants on the ground that plaintiffs "did not attempt to demonstrate the reasonable value of the . . . services actually furnished by plaintiffs or their employees." Id . at 1501. The plaintiffs took the position that the value of their goods and services was reflected by an alleged agreement between the parties concerning commissions. Id . Moreover, the plaintiffs did not provide any information demonstrating what services were rendered. Id . at 1501-02. Unlike the plaintiffs in Tax Lease , Kinetic Energy provided expert testimony regarding the value of the services provided. Mr. Schmidt testified at length about the nature of the services.

Because Kinetic Energy made a submissible claim — that it provided services to Trigen, expected to be compensated for those services, and provided a value for those services — we are compelled to reverse the trial court's JNOV. Kinetic Energy's Point I is granted.

New Trial

Kinetic Energy also contends that the trial court erred in granting Trigen's motion for new trial. The trial court's order declared that "in the event the judgment notwithstanding the verdict entered herein is vacated or reversed, the motion for new trial is sustained on the grounds stated in paragraphs 1, 2, 11, 26 and 28 in the motion for new trial." Among the listed grounds for new trial mentioned in the order was that the verdict was against the weight of the evidence. Trigen claims that the trial court did not manifestly abuse its discretion in granting the motion because the jury could clearly have found in Trigen's favor.

Rule 78.02 provides, "[o]nly one new trial shall be allowed on the ground that the verdict is against the weight of the evidence." The power of the trial court to grant a new trial on this ground is beyond question. See Devine v. City of St. Louis , 165 S.W. 1014, 1015 (Mo. 1914). The trial court has great discretion where it grants a new trial on the ground that the verdict is against the weight of the evidence. Simpkins v. Ryder Freight Sys., Inc. , 909 S.W.2d 683, 685 (Mo.App. 1995). Such an order granting a new trial is presumed correct, and we will not disturb that order unless the trial court manifestly abused its discretion. Id . No abuse of discretion will be found where substantial evidence exists to support a verdict in the moving party's favor. Robertson v. Cameron Mut. Ins. Co. , 855 S.W.2d 442, 446 (Mo.App. 1993) (citing Courtney v. City of Kansas City , 775 S.W.2d 269, 272 (Mo.App. 1989)). The trial court's discretion in granting a new trial extends only to questions of fact, not to questions of law. Lashmet v. McQueary , 954 S.W.2d 546, 549 (Mo.App. 1997).

"Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration[.]" Anglim v. Missouri Pac. R.R. Co. , 832 S.W.2d 298, 303 (Mo. banc 1992). It cannot be said that the trial court abused its discretion where reasonable persons could differ over the propriety of its ruling. Id .

As this court acknowledged in Ray v. Gabbard , 886 S.W.2d 696, 697-98 (Mo.App. 1994), the trial court's power to grant a new trial on the ground that the verdict is against the weight of the evidence is nearly absolute. We indulge every reasonable inference in favor of the trial court's ruling. Hacker v. Quinn Concrete Co., Inc. , 857 S.W.2d 402, 415 (Mo.App. 1993). We are more liberal in upholding the trial court's grant of a new trial than we are when the motion for new trial has been denied. Nguyen By Through Nguyen v. Haworth , 916 S.W.2d 887, 888 (Mo.App. 1996).

We find no abuse of discretion in the instant case. Trigen presented evidence that the services provided by Kinetic Energy had no value. Trigen's evidence was that negotiations with Kinetic Energy over the value of services, as calculated by the same formula used in the Oklahoma Project, did not yield much because "the project hadn't been made good enough." Trigen also offered evidence that Mr. Avers' valuation of what was provided by Kinetic Energy was unrealistic and wrong. We do not address Kinetic Energy's remaining contentions relating to the trial court's grant of a new trial, having decided that the trial court did not abuse its discretion in determining that the verdict was against the weight of the evidence.

Conclusion

Kinetic Energy made a submissible case. Therefore, the trial court's grant of judgment notwithstanding the verdict is reversed. Because we find that the trial court did not manifestly abuse its discretion in granting a new trial, the trial court's grant of a new trial is affirmed.

Ellis and Howard, JJ., concur.