Parkway Construction Services, Inc., Respondent/Cross-Appellant v. Blackline LLC d/b/a Blackline Design and Construction, and Magnolia Halliday, LLC
573 S.W.3d 652
Mo. Ct. App.2019Background
- Parkway (plumbing subcontractor) contracted with Blackline (general contractor) to renovate two apartment buildings; contract price $96,000 and Blackline agreed to supply certain fixtures. Parkway agreed to rework plumbing and to replace up to a 50% threshold of DWV piping; work beyond that required a written change order.
- Dispute arose when Parkway replaced substantially more DWV stacks (all 43 stacks) without a written change order; Parkway sought extra payment for work alleged to be outside the contract.
- Parkway stopped work after Blackline refused retroactive change-order approval; Blackline hired another plumber to finish the job and tendered a final conditional payment of $8,712.97 which Parkway refused.
- Parkway signed a partial lien waiver and accepted $25,200 covering work through June 16, 2015; Parkway later sued asserting breach of contract (reinstated after voluntary dismissal) and equitable claims (unjust enrichment, quantum meruit) seeking ~$103,449 total.
- Trial court awarded Parkway $9,763.97 (contract recovery: $8,712.97 plus $1,051 for shower-valve work) and found Parkway the prevailing party, awarding $103,234.31 in attorneys’ fees; denied equitable claims as waived/released by the lien waiver.
Issues
| Issue | Plaintiff's Argument (Parkway) | Defendant's Argument (Blackline) | Held |
|---|---|---|---|
| Whether trial court could "reinstate" Count III (breach) after Parkway voluntarily dismissed it without prejudice | Parkway: dismissal was without prejudice; court retained authority to allow reassertion before trial and no prejudice resulted | Blackline: dismissal terminated the claim and court lost authority; reinstatement was impermissible | Court: Affirmed — court did not abuse discretion; reinstatement/amendment was allowed because dismissal was without prejudice and caused no prejudice |
| Whether trial court erred in awarding $1,051 for shower-valve work not pleaded as breach of contract / whether it was tried by consent | Parkway: shower-valve work was part of extra-work claims and/or tried by consent; Blackline had approved change order | Blackline: shower-valve payment was pleaded only under equitable claims; it was not litigated as a breach by consent | Court: Reversed as to the shower-valve award — trial court erred in treating that item as tried by consent and awarding it in Count III |
| Whether Parkway was the prevailing party and entitled to contractual attorneys’ fees; and whether fee award was excessive | Parkway: prevailed on main issue (payment for work) and is entitled to fees for litigation arising out of contract | Blackline: Parkway lost principal equitable claims (which were main issues) and thus should not be prevailing party; fee award disproportionate | Court: Parkway is the prevailing party (obtained some contract relief on the main payment dispute) and entitled to fees, but remanded to recalculate fees excluding amounts exclusively attributable to unsuccessful equitable claims (including shower-valve work) |
| Whether equitable claims (unjust enrichment, quantum meruit) survive given contract change-order clause and lien waiver | Parkway: equitable recovery permissible for extra work; waiver ambiguous and lacked consideration | Blackline: extra work required written change order; Parkway signed lien waiver and released claims through June 16, 2015 | Court: Affirmed — equitable claims barred: contract required written change orders and Parkway’s claims for extra work were released by the unambiguous lien waiver supported by consideration |
Key Cases Cited
- Richter v. Union Pac. R.R. Co., 265 S.W.3d 294 (Mo. App. E.D. 2008) (discusses effect of voluntary dismissal and court authority to reinstate claims)
- Diehl v. Fred Weber, Inc., 309 S.W.3d 309 (Mo. App. E.D. 2010) (standard for abuse of discretion on amendment of pleading)
- Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (U.S. 2001) (definition of "prevailing party" as one in whose favor judgment is rendered)
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of review for court-tried cases)
- Herbert & Brooner Constr. Co. v. Golden, 499 S.W.2d 541 (Mo. App. K.C.D. 1973) (rule that written change-order requirement bars recovery for extra work absent writing or waiver)
- Tharp v. Keeter/Schaefer Invs., L.P., 943 S.W.2d 811 (Mo. App. S.D. 1997) (lien waiver validity requires consideration or detrimental reliance)