City of Cape Girardeau ex rel. Kluesner Concreters v. Jokerst, Inc.
402 S.W.3d 115
Mo. Ct. App.2013Background
- Jokerst, Inc. was general contractor and Kluesner Con-creters was a concrete subcontractor on the Cape Splash Aquatic Center project; dispute over contract terms and payment obligations.
- City of Cape Girardeau invited bids; Jokerst provided Kluesner with scope and estimated measurements; Kluesner bid $104,747.40 labeled as an estimate for unit-price work.
- May 29, 2009, Jokerst informed Kluesner that the project was a lump-sum contract based on Kluesner’s bid and that they would proceed.
- Kluesner began work in September 2009; issued invoices in Sept. and Nov. 2009 listing units and totals; Jokerst paid those invoices in full.
- In April–May 2010 Jokerst changed the curb to a stand-up curb; Kluesner issued two extra-work invoices at $30.00 per lineal square foot; Jokerst paid some amounts but left $24,090.00 unpaid for the stand-up curb.
- After completion, Jokerst sent a final payment of $1,349.82 and asserted it settled the contract based on the original bid; Kluesner sued for the remaining stand-up-curb costs on contract and quantum meruit theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a contract existed for unit prices derived from the bid | Jokerst: bid used and City award formed contract for unit prices. | Kluesner: no mutual assent to a unit-price contract; use of bid does not create contract absent definite practice or promise. | No contract formed from bid/award; trial court erred in treating bid as contract. |
| Whether quantum meruit theory supports recovery for the stand-up curb | Jokerst contends no benefit to Kluesner; no unjust enrichment. | Kluesner: stand-up curb was requested, had value, and Jokerst refused payment; quantum meruit applies. | Kluesner entitled to quantum meruit recovery for stand-up curb; not barred by lack of an express contract. |
| Whether the judgment is inconsistent by granting relief under both contract theories | Jokerst asserts inconsistency and ambiguity. | Kluesner's claim properly grounded in quantum meruit only. | Judgment affirmed only to the quantum meruit portion; moot as to contract-based relief. |
| Whether prejudgment interest was properly awarded | Jokerst argues damages were unliquidated due to contract dispute. | Kluesner contends damages were liquidated by its invoice; prejudgment interest appropriate. | Prejudgment interest proper; amount supported by evidence. |
Key Cases Cited
- Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976) (standard of review for court-tried cases)
- Mortenson v. Leatherwood Constr., Inc., 137 S.W.3d 529 (Mo.App. S.D. 2004) (appellate review; de novo of legal conclusions)
- Green Quarries, Inc. v. Raasch, 676 S.W.2d 261 (Mo.App. W.D.1984) (elements of quantum meruit; unjust enrichment avoidance)
- County Asphalt Paving, Co. v. Mosley Constr., Inc., 239 S.W.3d 704 (Mo.App. E.D.2007) (owner payment and unjust enrichment in construction context)
- Little Joe’s Asphalt v. C.W. Luebbert Constr. Co., 74 S.W.3d 830 (Mo.App. W.D.2002) (quantum meruit; objective reasonableness of rate)
- Envtl. Waste Mgmt., Inc. v. Indus. Excavating & Equip., Inc., 981 S.W.2d 607 (Mo.App. W.D.1998) (oral contract must have definite terms)
- KC Excavating, 141 S.W.3d 401, 141 S.W.3d 401 (Mo.App. W.D.2004) (unit price contract; extra work provisions)
- Massman Constr. Co. v. Kansas City, 487 S.W.2d 470 (Mo. 1972) (lump sum contract included extra work provision)
- Hutchens v. Burrell Inc., 342 S.W.3d 399 (Mo.App. W.D.2011) (price is material term in contracts)