435 S.W.3d 705
Mo. Ct. App.2014Background
- Scheck Industrial (plaintiff) appeals amended judgment after bench trial favoring Tarlton (defendant) on plaintiff's account stated and breach-of-contract claims and on defendant's counterclaims for breach, warranty, indemnification, and attorney fees.
- Subcontracted work involved welding eight drain-access collars into a penstock at Ameren Taum Sauk project; lower penstock steel was T-1, upper was A201, creating welding compatibility issues.
- Subcontract incorporated contract documents, warranty, and a pay-if-paid clause; Plaintiff was to investigate conditions and independently determine welding criteria; indemnity clause (Part II(H)(I-17)) was included.
- After initial welding, cracks appeared; it was learned the lower penstock was T-1 steel; attempts to repair with new welding methods failed; Briem Engineering recommended a different welding procedure.
- Ameren ultimately paid for most work except $553,133.51; plaintiff sought this amount; trial court found plaintiff failed to perform work in a workmanlike manner and awarded defendant damages and attorney fees.
- On appeal, the Missouri court affirmed, addressing challenges including the trial court's exclusion of plaintiff's retained expert and various contract-based defenses and counterclaims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion striking the retained expert | Johnson was timely disclosed five weeks before trial and non-prejudicial | Johnson was untimely disclosed, causing prejudice | No abuse of discretion; untimely disclosure justified exclusion |
| Whether the amended judgment on account stated is against the weight of the evidence | Defendant admitted owing for work and did not dispute invoices | No express agreement or unconditional promise to pay; invoices unpaid due to Ameren claim | Not against the weight of the evidence; no account stated established |
| Whether plaintiff breached the contract and waived rights by accepting defective work | Work was performed in a good and workmanlike manner and/or Defendant waived defects by acceptance | Evidence shows non-workmanlike performance and no waiver; contract documents required independent verification | Substantial evidence supports breach; no waiver; contract documents interpretation favorable to defendant |
| Whether the pay-if-paid clause is applicable or moot | Pay-if-paid clause is ambiguous and should not create a condition precedent | Claus e is applicable as a condition precedent to payment | Moot because plaintiff failed to perform work in a workmanlike manner; pay-if-paid not invoked |
| Whether defendant's counterclaims for breach of contract, breach of warranty, mitigation, indemnification, and attorney fees were proper | Warrants claims did not apply; defendant failed to mitigate damages | Substantial evidence supports breach, warranty applicability, proper mitigation, and indemnification; fees pleaded properly | All counterclaims and fee awards upheld; no reversible error |
Key Cases Cited
- Legg v. Certain Underwriters at Lloyd’s of London, 18 S.W.3d 379 (Mo. App. W.D. 1999) (untimely expert disclosure justifies exclusion; broad discretion governs)
- Wilkerson v. Prelutsky, 943 S.W.2d 643 (Mo. Banc 1997) (untimely expert disclosure constitutes abuse of discovery; prejudice indicated)
- Houston v. Crider, 317 S.W.3d 178 (Mo. App. S.D. 2010) (against-weight-of-the-evidence standard requires firm belief judgment is wrong)
- Chisler v. Staats, 502 S.W.2d 424 (Mo. App. 1973) (invoices alone do not prove account stated unless explicit acknowledgment)
- R.K. Matthews Inv., Inc. v. Beulah Mae Housing, LLC, 379 S.W.3d 890 (Mo. App. W.D. 2012) (workmanlike performance standard in construction contracts)
- Grant Selsor & Sons Lumber Co. v. Wood, 872 S.W.2d 150 (Mo. App. S.D. 1992) (account stated elements: prior dealings, agreement on amount, acknowledgment or promise)
- Burns & McDonnell Engineering Co. v. Torson Constr. Co., 834 S.W.2d 755 (Mo. App. W.D. 1992) (indemnity contracts; indemnity against loss vs. liability)
- Williams Constr., Inc. v. Weher Constr. LLC, 403 S.W.3d 660 (Mo. App. S.D. 2012) (first-to-breach rule in contract performance)
- Business Men’s Assurance Co. of Am. v. Graham, 891 S.W.2d 438 (Mo. App. W.D. 1994) (mitigation of damages; damages must be proven with reasonable certainty)
- Kracman v. Ozark Electric Coop., Inc., 816 S.W.2d 688 (Mo. App. S.D. 1991) (measure of damages for breach of indemnity agreement against loss)