510 S.W.3d 871
Mo. Ct. App.2017Background
- Berra contracted with the City to expand the Washington Sanitary Landfill with a contract completion date of November 27, 2013 and liquidated damages of $950 for “each working day” of delay; "working day" was not defined in the contract.
- Berra finished the Project on June 23, 2014; the City assessed $133,000 in liquidated damages by counting 140 non-holiday Monday–Friday days between November 28, 2013 and June 23, 2014.
- Berra sued, arguing the liquidated-damages assessment was improper because “working day” should mean days when weather permitted productive work, and many weekdays in the delay period were weather-prevented.
- At bench trial the City’s engineer testified the City intended “working day” to mean all non-holiday weekdays; Berra’s foreman testified industry custom defines “working day” as days when weather allows work. Berra produced a schedule of specific weather-prevented days.
- Trial court found Berra materially breached by failing to complete on time and adopted the City’s construction (counting all non-holiday weekdays); Berra appealed.
- The appellate court reversed, holding the contract was ambiguous on “working day,” no mutual intent was shown, and ambiguity must be construed against the drafter (the City); remanded to determine which weekdays were actually "working days."
Issues
| Issue | Plaintiff's Argument (Berra) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether the contract term “working day” in the liquidated-damages clause should be limited to days when weather permits productive work | "Working day" means days when weather allows productive work; only such days should count toward damages | "Working day" means all non-holiday weekdays (Mon–Fri) regardless of weather; City’s reading controls | Court: The term is ambiguous and, absent mutual intent, must be construed against the drafter (City); remand to determine which days were actual working days |
| Whether the trial court erred by resolving ambiguity in favor of the drafter | Berra: Ambiguity should be resolved against the City (drafter) | City: Its construction should be adopted | Court: Agreed with Berra—trial court erred by adopting the City’s construction without mutual-intent evidence |
Key Cases Cited
- Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421 (Mo. banc 2003) (contract interpretation seeks parties’ intent; give terms plain meaning)
- ATC Co. v. Myatt, 389 S.W.3d 732 (Mo. App. E.D. 2013) (ambiguity must appear within four corners; extrinsic evidence may resolve facial ambiguity)
- Monsanto Co. v. Syngenta Seeds, Inc., 226 S.W.3d 227 (Mo. App. E.D. 2007) (ambiguity arises from duplicity, indistinctness, or uncertainty in contract language)
- Twin River Const. Co. v. Pub. Water Dist. No. 6, 653 S.W.2d 682 (Mo. App. E.D. 1983) (ambiguities in government contracts construed against drafter)
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standards for appellate review of bench-tried cases)