*1 Plaintiffs. exhaust only clear- aid Defendants and shows that Defendants The record further dissolving included so Lastly, file a Tenbrook was ly response did not a receiving As objections thirty days prejudice within Plaintiffs. delays would production result, of documents. De- request for court to strike the trial chose fact, any objec- Defendants not file did a default pleadings and enter fendants’ eighteen after the until over months tions that measure because found request for of docu- original production mis- remedy for Defendants’ was the Therefore, trial court we find the ments. conduct. Plaintiffs’ second granting did not err taking reviewing the After record for to Defendants’
motions sanctions due inexcusable, re- Defendant’s into account produce to documents. failure certain fail- contemptuous peated, protracted, Point denied. rules and comply discovery with ure to Defen- point appeal, In their third on orders, find trial court we that the court grant- argue the trial court erred dants granting not abuse discretion did for sanctions ing Plaintiffs’ second motion for sanctions second motions Defendant’s striking Tenbrook and Tenbrook’s Point entering judgment. a default because there was no reference pleadings denied. request production for of documents is af- the trial court the date respect prior with Tenbrook firmed. of the trial and answered all of Fisher requests production of documents. SULLIVAN, B. J. SHERRI par- reviewed have the briefs SHAW, J., T. concur. BOOKER respect the record appeal ties and on opinion to this claim. As an extended no we jurisprudential purpose
would serve part judgment pursuant
affirm this 84.16(b).
to Rule Point Denied. appeal, In their fourth De point MASONRY, BENNETT JERRY argue the erred fendants trial court INC., Appellant, granting Plaintiffs’ motions for second because, if were sanctions even sanctions CO., CROSSLAND CONSTRUCTION striking pleadings applicable, Defendant’ INC., Com- and Fireman’s Insurance remedy not the least avail restrictive Newark, Jersey, Respon- pany New able to the trial court. dents. 61.01(d) party if a fails Rule states that No. 26456. produce requested, documents as may, upon reason- trial court motion and Appeals, Missouri Court of parties, notice to the make such or- able District, Southern just regard to the failure as are ders Division Two. striking entering a including pleadings and July 2005. judgment. default Transfer Rehearing Motion for case, specifically In this Aug. Denied prior not pay found that Defendants did Denied Application Transfer sanctions, unwilling to monetary so it was 20, 2005. Sept. Further, monetary remedy. consider continuing the the trial court stated that more would discovery
trial date for efforts *6 Marsh, Hulston,
Steven E. Jones & Marsh, Springfield, appellant. Higdon, Spencer, Jason J. Scott & P.C., Dwyer, Atty., Joplin, Resp. Co., Joplin. Crossland Const. Babcock, Baker, Sterchi, Robert A. Rice, LLC, City, Cowden & Jefferson Atty., for Firemen’s Ins. Co. Respondent by agreed upon BARNEY, third schedule Judge. with the S. ROBERT previous and Subcontractor Contractor relat- appeal dispute arises from a This month. for mason- ing agreement to a subcontract Appellant into ry work entered between ultimately brought a third Subcontractor Contractor, Inc., Masonry Jerry Bennett against in five counts petition amended (“Subcontractor”) Respondent Cross- I, In Count and Firemen’s. Contractor Inc., (“Contractor”), Co., land Construction sec- sought judgment under of a with the construction connection Act 84.057, Payment Prompt tion (“the project”) for Webb building school (sometimes “Missouri to as the referred District”) (“the City R-7 District School Act”), and Prompt Payment Public Works County, Jasper Missouri.1 Contractor (sometimes referred 431.180 under section project.2 contractor for the primary Act”) Prompt Payment as the “Private arose present dispute of the genesis by $67,057.50 “retainage” withheld for the “retainage” from 10% Contractor’s attorney’s fees together Contractor $67,057.50, due annum, which was otherwise Sub- per at the rate of 18% and interest upon completion contractor of Subcontrac- relief as the Court “other and further portion project of the under tor’s II and just proper;” Counts may deem parties’ of the contract. Contractor terms claims Con- III were alternative necessary it was to retain the asserted $67,057.50,togeth- amount of tractor $67,057.50 main- because Subcontractor attorney’s fees request with a for such er masonry tained an insufficient number of law; by and interest allowed contract personnel project at the site caused which payment from Firemen’s sought Count IV delays in and neces- completing $67,057.50per the terms in the amount sitated extra work order bond, and performance payment prevent being liquidated assessed al- attorney’s and interest requested fees damages under its contract with the Dis- law; and, V by contract or Count lowed trict.3 in the amount sought damages $67,057.50 unreasonable due to Firemen’s delays countered that pay the amount and vexatious refusal weather, at were caused sod conditions $67,057.50 perform- terms of the per the site, subcontractors, other such as *7 bond, payment together subcontractors, ance and roofing electrical and interest, penal- ... interest Additionally, “pre-judgment own errors. Contractor’s pursuant ... attorney’s fees completed its ties and Subcontractor maintained [sjection [sjection 16, 1998, ... 375.296 compliance work December in and/or $653,000.00, accep- upon completion and Respondent Company Firemen's Insurance Newark, subcontract; ("Firemen’s”), Jersey as New of the howev- tance the terms surety, payment performance er, resulting furnished became due additional monies Contractor, principal. its bond on behalf “change order” to the subcontract. from statutory § are to See 107.170. All references are to RSMo 2000 and all rule references the District and prime contract between 3.The (2004). Court Rules Missouri progress pay- periodic called for Contractor during three-hun- the course of the ments prime between the District and 2. The contract "retainage” dred-day-project well as a 10% Contractor, 13, 1998, January dated was for the subcontract provision, similar to that of $3,534,000.00. amount of Subcontractor; how- Contractor and between agreement Contrac- The subcontract between ever, of three projected time schedule originally called for a tor and Subcontractor days was not met. hundred payment in the amount of to Subcontractor 88 ” counterclaimed, Hon, 407, 409 City Kansas 972 S.W.2d
375.420.... Contractor “ in seeking damages the total amount of is (Mo.App.1998). ‘Substantial evidence $171,140.00, alleging Subcontractor which, true, probative if force has due to inordinate breached subcontract issues, from which the trier upon ” delays masonry in work. completing reasonably can decide the case.’ of fact Inc., Stores, Kenney v. Wal-Mart In judgment, the trial court found 2003) (citation (Mo. 809, banc both at fault Contractor Subcontractor omitted). weight of the evidence is ... “poor management due to decisions inducing its effect in belief. regarding manpower staffing” and “inade- determined Inc., phases Sys., of the quate planning during some River Dev. Co. v. Meco White project.” It awarded dam- A (Mo.App.1991). 806 S.W.2d I of its ages against Contractor on Count being judgment should be set aside as amended in the amount of petition third weight against evidence $67,057.50, due to Contractor’s “mistakes firm that the with caution and with a belief planning project;” in on but deter- judgment wrong. Id. is set-off, mined Contractor was entitled to a 73.01(c) fact provides “[a]ll Rule counterclaim, in the amount of per its are specific findings on which no issues $33,496.00, as a result of Subcontractor’s having shall be considered as been made manpower adequately provide “failure to with the result found accordance timely completion project.” for the evidence, “In the fac- reviewing reached.” in fa- Additionally, the trial court found are to be findings tual of the trial court vor of Firemen’s on Subcontractor’s claim and are to be great accorded deference pay, for vexatious refusal to and sustained support if is evidence to upheld there summary for a request partial Firemen’s Dep’t Harris v. Mo. Conserva- them.” claim for vex- on Subcontractor’s tion, pay. granted atious refusal It also within admissibility “The of evidence lies favor of Subcontractor the trial court and the sound discretion of of its claim for Firemen’s on Count V abuse of dis- will not be disturbed absent payment performance under the bond but Waxman, 9 S.W.3d cretion.” Nelson v. only “to the extent [Contractor] (Mo. 2000). banc satisfy judgment.” unable to this Neither appeals. nor Firemen’s point, main- its first brings points failing nine Subcontractor now tains the trial court erred below. We affirm appeal, discussed interest to section pursuant assess 18% part. 34.057.1(7) part or, and reverse and remand alternatively, 9% interest 408.020, on the amount pursuant to section The standard of review a court-tried *8 Sub- damages of awarded Subcontractor. Carron, governed by Murphy case is v. trial court awarded argues contractor the (Mo. 1976). 30, 536 32 bane S.W.2d $67,057.50 of damages the amount appeals court of will affirm the peti- I third amended under Count of its supported by it is not substantial unless tion; ques- no accordingly, since there was evidence, weight of the it is amount of dispute about tion or evidence, ap erroneously or it declares $67,057.50 under its owed Subcontractor Although reviewing plies the law. Id. being a 10% subcontract with findings of court defers to the trial court’s Contractor — money of con- retainage amount—this sum fact, not defer to the trial the court does to which the “liquidated” amount City stituted of law. court’s determinations of
89
foregoing,
ap-
requires
interpretation.”
alternative
of interest
therefore
liberal
rates
plied.
at 725.
“The
Journagan,
requirements of the act are the
threshold
however,
asserts,
that
dates,
payment due
which are the events
trial court
award the
entered
trigger
the remedies available for un
favor of Subcontractor under
I of
Count
timely payment.” Id.
claim, being
a claim under
Act,
Prompt Payment
Missouri Public
purposes,
For our current
it will be
yet made no award of interest. Contrac-
re-
to note
the statute
sufficient
tor contends the trial court implicitly de-
pay
the subcon-
quires a contractor
termined that Contractor had not withheld
suppliers
tractors and material
within
retainage
amount
faith and
bad
days after the contractor receives
fifteen
cause,
without
prerequisite
reasonable
If
payment
public
from the
owner.
an entitlement of 18% interest under sec-
payment
contractor does not make such
34.057.1(7).4
tion
argues
Contractor also
days
receipt
in full within fifteen
after
of
that Subcontractor’s exclusive claim under
if
payment,
payment
such
is
Prompt Payment
negated
Act
a claim
cause, the
withheld without reasonable
of interest
Subcontractor under
contractor shall be liable not
for the
provisions of section 408.020.5
payment,
amount of the due
but also for
penalty interest
the amount of one
initially
note
per
percent
and one-half
month.
“Prompt Pay[ment] Act promotes timely
contractors,
subcontractors,
payment of
City
Independence
Briggs v.
Use
of
and suppliers
public
on contracts with
Co., Inc.,
Paving
Kerr
957
Const.
S.W.2d
public
owners for
pro
works construction
(Mo.App.1997);
also
see
jects.”
Journagan
Leo
City
Constr. Co. v.
34.057.1(7).
§
Utils.,
(Mo.App.2003).
language
“The
34.057.6
requires public
[section]
“This law
owners and con
juris
competent
indicates that ‘a court of
prompt payments
tractors to make
limits amounts
diction’ is to decide whether the withhold
retainage.”
withheld as
Prot., Inspection,
ing
‘good
Envtl.
was done in
faith for reasonable
Consulting, Inc.
”
City
City,
Briggs,
(quot
Kansas
cause.’
cretion, interest, award claim attorney’s liquidated also fees to the so as to allow prevailing party.” Id. at 320-21. We also must be fixed and or readily determined that a bad faith note determination is determinable, but if it it is sufficient ” question by of fact to be trier decided (quot- ascertainable computation.’ Id. City of facts. City, Kansas 37 S.W.3d Mkts, ing Cassilly, Schnucks Inc. v. 724 at 371. 664, (Mo.App.1987)). 668 S.W.2d matter, In the instant the trial The mere fact that a denies liabili- party express no in made determination its him, ty or defends a claim or that Contractor acted bad dispute even the existence of a bona fide faith without reasonable cause withhold indebtedness, as to the amount of the ing payments from As dis Subcontractor. interest; preclude recovery does not below, point two cussed there was suffi for it is the character of the claim and cient evidence trial court’s supporting the not defense to it that determines implicit determination lack of suffi liquidated. it is whether manpower by cient contrib Subcontractor delay completing uted to Contractor’s Twin River v. Pub. Constr. Co. Water in a timely Under fashion. Dist., 682, (Mo.App.1983) 653 S.W.2d 695 say these circumstances we cannot (quoting 47 C.J.S. and Usury Interest “ trial court erred awarding pre in not 21). unliquidated § ‘The of an existence interest the amount of 18% counterclaim against set-off or the claim pursuant to section 34.057. necessarily does not bar interest on the ” Id. (quoting claim.’ Eastmount Constr. however, determine, Co., Transport Mfg. Equip. Co. & trial court awarding erred not Sub (8th 34, Cir.1962)); 42-43 at F.2d see also pur contractor interest rate of 9% Co., Tri-City suant to section 408.020 after Contractor Killian Constr. Co. v. Constr. paid retainage 819, As by the District. “[sjection related, previously pro 408.020 Here, as best from our we re- discern vides that creditors shall receive interest and, of a rather record view voluminous moneys ‘for they all after due and become frankly, repetitive and intricate briefs from contracts, payable, written ac on and on completed parties, they counts after become due and demand 16,1998, ” presented December work on of payment is made.’ Insulation Bolivar seeking payment an invoice from Contrac- Inc., Builders, Logsdon R. Co. v. under the the subcontract tor terms of on (quoting 236 (Mo.App.1996) paid December 1998. Contractor Sub- 408.020). § “If parties agreed have not retainage all but contractor the 10% interest, al rate of ‘creditors shall be $67,057.50. a readily amount of This was lowed to receive the rate of nine interest at ” amount of computable ascertainable percent per per annum.’ Id. “The nine money comporting requirements with statutory rate is if the applicable cent Bolivar, 408.020. 929 S.W.2d at of section parties no separate agreement have 236. The subcontract between Contractor respect to the allowable rate of interest.” “ for no provided and Subcontractor interest agreement Id. the absence of an ‘[I]n project. payments completion after contrary, interest is not recoverable Therefore, 408.020, pursuant to section an unliquidated (quoting demand.’” Id. (Mo. Wood, to a rate entitled Burger v. “ Therefore, per App.1969)). order to interest at 9% annum. ‘[i]n *10 related, the trial viously judgment, note that Lastly, we while Sub set-off, on request not statu court allowed Contractor a Con- expressly contractor did in the amount of tory pursuant provisions interest to the tractor’s counterclaim $33,496.00, 408.020, the trial court’s pray section did as a result of Subcontractor I that had its Count “for such other and further determination Subcontractor provide manpower for may just adequately relief as the Court deem and failed to masonry proper.” express allegation seeking timely completion of its work. “[A]n Now, Two, main- prejudgment prerequisite interest is not a Point Subcontractor entering judg- to an tains the trial court erred in award such interest.” Dierker Assocs., D.C., Gillis, ment for the set-off favor of Contractor P.C. $33,496.00. petition “A which the amount of Subcontrac- prays grant that the court ‘such other tor avers there was no substantial evidence counterclaim, may proper’ supporting relief as be is sufficient.” Id. Contractor’s Jester, (quoting Addison v. trial court’s determination was 758 S.W.2d the and that (Mo.App.1988)). weight Based on the of the evidence foregoing, pray erroneously claim and had declared and contracts, requirement damages er under I applied Count satisfied the the law of Accordingly, delay. of section 408.020. Subcon construction tractor is entitled interest at the rate of essentials, Boiled down to its Subcon- per principal 9% annum on the amount of only argues tractor met the schedule $33,561.50 ($67,057.50 $33,496.00 minus did not agreed upon; the subcontract counterclaim) per an offset Contractor’s any specific, particular, agreed have or from the date that paid Contractor was requirements nor a com- upon manpower retainage by Contractor’s own the District. date; and, damages pletion awarded Point part One is denied in and affirmed in any delay proximately were not caused part. Fur- manpower staffing shortage. or or ther,
Preliminary to taking up argues damages Subcontrac- were awarded, point, tor’s improperly second we note the record since the subcontract pro- damages, shows that near the conclusion of provided liquidated ject, project not the actual damages architect wrote Contractor assessed were informing it that agreed damages legally while the on and which Contractor was ob- project ligated pay amended date for the to the District in either completion— as- taking Additionally, into consideration various weather event. Orders, days Change comply and “additional serts that Contractor failed to 29, 1999, January etc.”—was and violated the notice and “other re- substantial with 34.057,” thereby completion was April quirements [section] documented on words, project waiving having In other its claim barred. behind schedule. courts initially “[a]ppellate note liquidated damages power
In lieu of under the should exercise the to set aside contract, ultimately ground that it agreed the District decree or on the thirty- ‘against weight construct a road is of the evidence’ with firm five feet wide and certain at or caution and with a belief sidewalks along wrong.” Murphy, decree or site. Subcontractor’s evidence, “In expert computed reviewing own at trial the cost for 536 at 32. provided by findings additional work the factual of the trial court are Contrac- $33,496.00. pre- great tor at accorded deference and are to be for the District As *11 92
upheld if to question there is evidence contained support subcontract Harris, Instead, completion them.” at no 2 895 S.W.2d 71. “On deadline. Section appeal, considering required the of the subcontract sufficiency of the subcontractor evidence, “fully to with the and accepts cooperate this true the [C]ourt eliminate, the reduce if evidence and to and permissible [District] inferences favor possible, delays or the all hindrances the disregards able to and con Further, orderly Smith, progress of the Work.” tradictory Luna v. evidence.” 861 if 775, Section that provided “Subcontractor’s “Our con progress inadequate to conditions due cern on the review is whether trial court control, within the Con- result, Subcontractor’s the proper by reached not the route tractor the to may require Runny which it that result.” reached force, change increase or the labor Estates, Datapage Meade Inc. v. Techs. shifts, equipment number work the on of Int’l., Inc., 167, 170 (Mo.App. 926 S.W.2d job, the all without additional cost to Con- 1996). “[Cjonflicts in evidence are for the tractor, [District], the or the Architect/En- trial court to and we take facts resolve the gineer.” with the accordance results there Int’l, Specialties reached.” v. Diehl Gross com- Accordingly, Subcontractor was Inc., 246, 870 S.W.2d 248 (Mo.App.1994). pursuant pelled to the terms of the sub- prerogative “The court has the to perform contract to in accor- work make a finding range of value within of dance with Contractor’s schedule on what values testified to at trial.” Kickham v. expert, own Subcontractor’s Robert Scott Gardocki, 361, 362 (Mo.App. (“Scott”), in- “masonry admitted was 1998). out, As previously set “credibil acknowledged tense” also project. Scott ity of weight given witnesses and the be that “a good portion project depends their a matter for testimony is the trial quality on the and work of the efforts court, none, which to believe part, is free mason.” testimony.” or all of their Herbert July On Contractor’s Vice
Hart, (Mo. 1988). banc (“Crossland”), President, Curt Crossland (“Taylor”), Taylor wrote Ken Subcontrac- analysis begin by noting our (for purposes tor’s estimator of materials supports record bricklayers), regarding the slowness proposition that it concluded the third progress project on the and the District’s in a timely schedule manner December progress” with the “current concerns 1998, and that the subcontract was si project. Taylor Crossland reminded the specific manpower require lent as to to be required successfully complete ments to project. “complete masonry with the interior block Nevertheless, there exists evidence in the September walls on 3 [1998] exterior showing record that Subcontractor failed complete to be four weeks brick up to under obligation to live the sub after that.” job contract staff the adequately Taylor at sent manpower request add additional Another letter was Crossland, Contractor, 17, 1998, relating thereby creating delays August by in the 3, 1998, following September months commencement of work deadline and interior project. completion on the The record shows that of the “exterior met, delays not be and that subsequently impacted these block walls” would ability late. complete of other subcontractors Subcontractor would two weeks their work on This followed an additional letter project. 29, 1998, Mat- that he had visited the site September signed plained dated *12 Knight (“Knight”), project engi- only thew the had “5 “yesterday” and Subcontractor neer, complaining that the would layers working today “brick on the west brick complete early not until be December.” building.” Knight complained of side the unaccepta- The letter related that “[t]his completion that the December past your ble and is over two months cur- date would not be achieved “with the Fur- completion date on our schedule.” pro- manpower project.” rent on the thermore, the letter set out that Contrac- ject engineer reiterated he had written two agents you tor’s had “talked to about man- discussing the schedule previous letters one, power day from the has [District] Subcontractor, but that Contrac- delay by questioning your manpower, been and it response tor had had “little or no to these though very high seems as we not are very letters and this has become frustrat- your It priority list.” was reiterated that that are ing.” He related not “[w]e you pace, continue at the current “[i]f only your noticed lack of people have likely liquidated [District] will most access manpower, [District] even the has written damages to it will [Contractor] because my July I letter that attached to impossible 70,000 [square to finish a foot] letter.” school the 15th if January the ma- also wrote: Knight sonry complete is not until December.” anybody is hard to believe how bid a [i]t Knight Taylor then warned that “should $653,000 job block and brick us, these damages be levied on we will planned have 6 to 8 masons on liquidated damages access schedule and/or job it in 4 get done months as delay damages per Section and 8 of our original schedule shows. Not one Agreement.” Subcontract you I time have heard state discussion, At this point it should schedule could not be meet when it [sic]
be noted that the record reveals while original produced updated. [sic] working Subcontractor was on the Dis- Knight then related that if Subcontractor project, trict’s it “[e]ight also had or ten” “supplement manpow- did not current [its] projects other working and that its days er within we be forced to do so will “80 120” bricklayers and laborers were you.” fully employed on projects. these various Indeed, the record reveals there was a As best we discern from our review of shortage of masons to complete the vari- record, apparent response ous, Scott, projects other the area. letter, Knight’s and for the first time in expert, Subcontractor’s that “all testified completion portion the course of of its fully employed craftsmen were ...” and project, agent, Taylor, Subcontractor’s “very
there were a limited number of ma- expressed concerns deficiencies on about They fully sons available. all were em- part working of other subcontractors ployed.” acknowledged He “without a project. Significantly, Taylor on the ac- doubt” that “it tough would be to find knowledged manpower had additional masons.” problems. “[g]ranted He wrote: we have ” 6 (Em- Then, Taylor manpower problem a letter to dated Novem- .... had added). 11, 1998, project engineer Knight phasis ber com- Knight any problems also testified that in the course of weren’t as far as the installation roofing proceeded essentially there roof]. construction existed certain It as soon [the problems, ready Knight electrical he related that as the areas were to roof.” "[t]here Cibrian, Furthermore, 165 (Mo.App. the record supports 1993)). proposition order Contractor to We also note that this “rule of law limit delay caused protect developed has order during paucity manpower the earlier wrong duplicating damages.” Id. at Contractor, project, in No- months 165-66. of 1998 “had to crash the sched- vember Here, pro- under review the subcontract by bringing ule” all subcontractors on site only liquidated damages vided for but not *13 rapid succession. Twin damages.7 also actual See River the Lastly, project we note that archi- Constr., petition, In its at 694. 653 S.W.2d tect, Latimer, in his acknowledged James liquidated damages sought Contractor had “masonry takes testimony up larger that a eighty-six days from Subcontractor for de- proportion of ultimate work the on this— lay project, to the of the to- completion a than it project like this will on other gether damages totaling all additional structures,” types and also that of set out $171,140.00. out, previously set the As project feel that the ade- “[w]e didn’t $33,496.00 court awarded Contractor quately staffed.” counterclaim, of on its as a result Subcon- Considering foregoing, the we cannot adequately provide tractor’s “failure to say probative of there was a lack evidence manpower timely completion the of the for the trial court’s supporting determination money the project.” This sum of matched
that to adequately “fail[ed] Subcontractor expert amount wit- that Subcontractor’s the provide manpower timely comple- had calculated road reasonably ness the tion of project.” the cost and sidewalks should have Contractor.
Accordingly, we now turn to reveals that the The record remaining portion point, being the by road and construction Con sidewalk complaints an analysis of Subcontractor’s compromise in tractor as a was undertaken damages relating to the assessment of settling dispute with the District for course, against cognizant, it. are of of “ timely delay completing Contractor’s that ‘liquidated case that sets out law project. this additional the We discern damages generally may not be actual liquidated of performed work was lieu compensation for the same awarded ” 159, damages that would otherwise have been injury.’ Trapp Barley, v. 897 S.W.2d against v. assessable District Contrac- (Mo.App.1995) (quoting by 165 the Warstler losses, opinion expenses L.D. damages, "there All or in- further testified that in his legal cluding delay” attorney to fees or other costs attributable the lack of wasn't a by project. which the Contractor due electricity on the He are sustained stated diligently pros- a to failure to been "out there time or two while he had know, complete trip a ecute failure you when breaker would the Work and/or when— breaker,” timely go re-flip the manner they'd have to he the in a shall Subcontract delay. paid by a There to the also said that "there wasn’t the Subcontractor Contrac- day may there electri- a when wasn’t tor. incurs or incur never If Contractor they working doing damage, do.” expense what needed to due to such fail- cians or loss Subcontractor, ure(s) part on the of may deduct such amount from liquidated damage Contractor provi- In addition to the retainage payable $1,500.00 any payment to the day, per to "com- sion failure of payment of withhold plete his within work or deliver materials and/or owing to the 2 otherwise Subcon- agreed upon,” as found in Section funds time subcontract, is remedied or tractor until the situation we note Section 8 of adjusted satisfaction. provided, part, to Contractor’s also that: subcontract
95 favor, tor, con- failed under the terms because proper prime responsive pleading tract. “It is for a contractor a or affirmative file on’ to third ‘pass liquidated a subcontractor to Subcontractor’s amended defenses disposed caused damages petition. subcontractor.” This contention is party Co., Taos Co. v. Penzel Constr. Constr. ruling (Mo. It is our Ratliff, v. Blaise the trial did not award view court App.1984). duplicative damages to Subcontractor. Blaise, a plaintiff sought to rescind in a case “[A] trial tried without farm, including contract for sale of
jury finding prerogative has make a deeds of trust from cancellation two within range of value values testified bank, to a as well as other purchasers damages.” to at trial on the issues of Id. at bank equitable relief. 685. The Richardson, Francis did file a filed no answer but counterclaim. *14 in Viewing the a evidence Id. Accordingly, plain- trial commenced on light holding most favorable to the of the with no hav- petition tiffs amended answer court, must, say trial as we we cannot that Id. at 687-88. ing been filed the bank. entering the trial court erred in judgment bank appeal, plaintiff complained On the in of on favor its counterclaim deny rely “not fraud or on its bona could $33,496.00.8 in amount of the did purchaser fide status because it not of seek leave to file answer until all his point
In its third on Sub its appeal, Id. at was in rested his contractor the trial erred evidence and case.” maintains court in of to hold of 687-88. The Eastern District this failing allegations that the “proceeded to tri- petition pur plaintiff third amended were Court held that admitted 55.09,9 suant to Rule in to of the failing objecting and to enter al without the failure Answer, judgment Prompt Payment moving under the Act to Bank file its without application, September In its final dated for the dis- visions the actual resolution of Indeed, provides Contractor certified to the that pute. District section 34.057.3 that paid all "[d]isputes its subcontractors had been from shall be resolved in accordance previously applied funds for and received with the terms of contract documents." the Contractor, Here, despite despite public the fact that Contractor the lack of notice to the $67,057.50 owner, had the nothing retained sum of Sub- from there in our of the is review procedure contrary Prompt Payment precluded contractor. This to that Act Contrac- 34.057.2, which, provision right against the of asserting section in tor from a of set-off pertinent part any sets out any subsequent ‘‘[a]mounts that intend- civil withheld funds ed genuine dispute to be withheld not be litigation arising shall included a from pub- applications among such or certifications to the We Contractor and Subcontractor. approve dispute lic genuine owner contractor.” do not a determine there existed practice withholding among of the parties. Accordingly, of a contractor the the trial noting a funds from subcontractor without did not autho- court err as a matter of law in withholding application against the rizing in its or certifica- a of set-off the amount $67,057.50 public tion to owner as the statute re- owed otherwise to Subcontractor. quires. provides Section im- 34.057.6 for an provides 9. Rule 55.09 that: position of at rate one- interest of one and per together attorney percent half month pleading Specific in a which a averments to fees monies in bad with- for withheld faith or responsive pleading required, is than other out reasonable cause. damage, as the amount of are those to However, responsive denied in the agree we that admitted when not with Contractor plead- a Prompt Payment may pleadings. Specific averments Act a while the include procedure dispute responsive pleading handling ing to which is re- funds until a no resolved, pro- express quired has no shall be taken as denied. been contains so, required surety that it to do inter principal without alia Blaise, taking liability a default.” 672 S.W.2d at to [Subcon- of Firemen’s result, plain- tractor], court surety 688. As a held as of [Contractor] filing tiff mandatory “waived the of an that of co-extensive to [Contractor] and his complaint court, Answer is without mer- fact, judg- the trial entered it.” Id. against ment [Contractor].
Here, trial Subcontractor went to judgment, granted trial virtually evidentiary portion the entire judgment Firemen’s against completed had trial been before men- petition, V its third amended Count tion was made of Subcontractor’s third “to extent that is unable [Contractor] petition. The amended record shows the satisfy judgment.” to this “permitted filing trial court then of the this portion maintains [responsive] pleadings and defen- “basically ‘contingent’ amounted deny allegations go dants and we’ll Firemen’s.” Significantly, here on the merits.” Independence City Use Blaise, to trial Subcontractor went with- Co., Paving Briggs v. Kerr Constr. petition out answers its third amended Inc., rule, “as a general teaches that filed; objections being without fail- damages surety’s liability for contract ure filing of Contractor and Firemen’s re- principal.” coextensive with that and, answers; *15 spective without re- at 319. There is a Briggs, S.W.2d quest by to the trial court to Subcontractor caveat, however, in that absence “[i]n default Firemen’s for Contractor and/or contrary, the agreement rights an to the of their to with the respective comply failure surety by and of a are measured liabilities provisions of Rule 55.09. these cir- Under (emphasis add principal.” those of the Id. waived the cumstances Subcontractor ed). Here, performance payment and mandatory filing responsive pleadings by in provides para bond issued Firemen’s by and answers and Firemen’s. Contractor 3 that graph Blaise, 672 at 688. Point denied. S.W.2d Claimants, respect this to obli- With Four, In Point Subcontractor reit if gation null and the con- shall be void argu and erates the same contentions makes direct- promptly payment tractor in and discussed Points ments outlined ly all due. indirectly, for sums relating Two to trial court’s One and beyond surety is not to be held “The against to award Con failure 18% interest contract; his he his terms of is bound faith purported tractor for bad with agreement nothing and more.” State ex to the notice Dis holding funds without Raid, Surety Mo. rel. Co. v. S. frivolous, trict, asserting in inflated (1932). 41, 42 In instant mat- damages. All of these is pretextual ter, showing that made no Subcontractor previously sues have been discussed. satisfy the judg- to Contractor was unable Point denied. circum- against it. Under these ment Five, In Point maintains: Subcontractor trial we no error in the stances find trial in to failing court erred judgment against Firemen’s entering judgment monetary a favor award employed. Point denied. language it Firemen’s, against Subcontractor and (rather point, sixth Subcontractor just contingent than obli- failing court erred maintains gation) said errone- because damages against in its favor applied the law of award ously declared and Firemen’s based on the latter’s vexatious were litigable issues involved the dis- pay refusal to Subcontractor’s claim. Sub- pute between Contrac- contractor asserts the trial court’s deter- and, accordingly, tor it had a reasonable supported by mination was not substantial cause payment. to withhold This is born evidence, against weight out the fact that Contractor not erroneously evidence and ap- declared and disputed amount plied refusal, the law vexatious because claimed it was owed also but Contractor Firemen’s collaborated with claimed Subcontractor was indebted to it deference to its directives to withhold and in an amount exceeding Subcontractor’s delay payments. This claim. agent Firemen’s testified that point lacks merit. provided additional information from both Subcontractor and Contractor as the
“Missouri’s providing statutes litigation progressed principal, and that its damages for an surety’s insurer’s or Contractor, continued to claim amounts refusal pay on a claim or respec bond due from Subcontractor in excess of its tively, penal nature, are strictly and are days claim until two before trial when Dept. construed.” Missouri Transp. ex information was indicating received Co., rel. PR Developers, Inc. v. Ins. Safeco under one of Contractor’s alternative theo- 42 (Mo.App.2002); see recovery Subcontractor, §§ ries of 375.420 and 375.296. “In order to re penalties might cover there an undisputed balance of vexatious refusal pay, plaintiff $1,000.00. must show that less than the refus willful, al was and without reasonable
cause, as the facts would “The test is not final appeared have determi person issues, rather, reasonable before trial.” Id. “If nation of the but how the open question law, there is an of fact or an appeared facts at the time of the refusal to surety insurer or may judicial insist on a Co., pay.” Penney Morris J.C. Ins. Life *16 determination question of such without 73, 895 76 (Mo.App.1995). S.W.2d Based “ facing statutory penalties the for vexatious on ‘general survey the and a consider refusal.” Id. “Missouri courts have ex testimony ation of the whole and all the pressly surety held a solvent facts and circumstances in with connection ” principal independently need not investi case,’ Stephan the Smith ex rel. v. AF & gate a claim on a bond to penalty avoid a Co., 767, L (Mo.App. Ins. 147 S.W.3d 778 for vexatious refusal.” Id. 2004) (quoting Family v. Am. Mut. DeWitt (Mo. Co., 700, Ins. 667 S.W.2d 710 banc
Here, the record shows that Firemen’s 1984)), say we cannot Firemen’s refusal to viable, believed Contractor to be a solvent pay the claim was willful and without rea strong principal, based on experi- ence of sonable cause. Point having payment satisfied a denied. bond supplier claim from a respect to the point, question. its seventh Subcontrac Additionally, on based representations Contractor, by
the tor the trial court fail togeth- maintains erred er investigations, ing against with its own to tax Firemen’s costs Contractor and asserted it had reason to believe there Firemen’s by as mandated Rule 77.01.10 provides 10. Rule provided 77.01 that: unless otherwise in these rules or actions, party law. prevailing In civil shall against party, recover provides his costs the other Section 514.090 that: 98 testimony of Contractor’s argues trial court evidence and
Subcontractor judgment against Knight; project it both Contrac- archi- project manager, awarded (“Latimer”); tect, Firemen’s tor and under Subcontractor’s Jim Latimer Contrac- V, Estimator, (“Houser”); third respectively, Counts I and of the tor’s Steve Houser hence, pre- it petition; amended was Analyst, and Contractor’s Senior Financial Therefore, vailing entitled to costs. party Harley (“Harley”), purport- Maurice who asseverates the trial court gave testimony relating to edly “expert” erroneously applied refusing the law “manpower, staffing and Subcontractor’s “judgment for its award Subcontractor scheduling.” contends it costs.” acknowledged persons that these were work, masonry experts manpower, not “The trial court has the discretion staffing scheduling persons and such if a in a plaintiff to award costs multi-count expert never disclosed as witnesses were on all of its petition prevails some but not required by the Missouri Court Rules. Co., Hoag v. McBride & Inv. claims.” Son Inc., 157, (Mo.App.1998); 967 S.W.2d “ admissibility ‘The of evi § not re “Accordingly, 514.090. we will dence, including testimony of an ex judgment of the trial court verse the pert, is matter within the discretion an awarding costs unless constitutes ” 11 trial Whitted v. Healthline court.’ Id. abuse of that discretion.” (Mo. Inc., Mgmt., 473-74 Here, claim contained Ketcherside, v. App.2002) (quoting Cooper Firemen’s, against at least one two counts (Mo.App.1995)). “We of which determined Subcon- are, therefore, evaluating limited on re in its Additionally, tractor. trial view whether court abused trial granted Contractor “set-off per discretion....” Id. “When reasonable way on its Counterclaim propriety could sons differ as $33,496.00.” Lastly, amount however, ruling, it cannot be trial court’s i.e., parties,” trial court determined “both trial court its discre said abused Contractor, at Subcontractor and were Id. admission of tion.” If the court’s fault specifically “[a]ll determined any ground, evidence can be sustained party incur- Court costs are taxed to Hofer, Court affirm. Smith this will circum- ring the cost.” these Under Inc., stances, an we cannot attribute abuse *17 tax failing to discretion to admissible To be evidence Contractor or solely against costs either relevant, legal logically be both and must 176. Hoag, 967 S.W.2d at Firemen’s. City 130 ly. Springfield, Shelton v. Point denied. 30, (Mo.App.2004). Evidence is S.W.3d 37 prove to or if “tends Eight, logically In asserts relevant Point or disprove a fact issue corroborate allowing, the trial court erred in consider- Escobar, 26 Guess v. objections, other evidence.” ing, striking, and not over " opinion expert evi- any peti- 'The test of are essential Where there several counts in helpful to is it will be the fact tion, dence whether adjudged any them one of be ” (quoting Safeco, 97 at 38 finder.' S.W.3d insufficient, verdict, joined aor or issue Ctr., 24 Health S.W.3d Fierstein v. DePaul defendant, thereon, shall be found for the 220, person (Mo.App.2000)). "A with 226 be awarded at discretion costs shall experi- specialized practical substantive the court. expert.” qualify as an Id. ence in an area can
99 235, S.W.3d 242 (Mo.App.2000). Evidence school superintendent, assistant Dr. legally event, is relevant probative when its val- Lankford. either when Contrac- ue, usefulness, outweighs objected its prejudicial tor’s counsel on the basis that effect, such prejudice, as unfair confusion given answer to Latimer not respon- was issues, time, delay undue or waste of to question, sive and that there awas trial, jury foundation,” the case of misleading the “lack of no motion to strike jury. Id. general objection made. A was to “lack of foundation” preserve alleged will not er- We first observe that Knight, rors because it to fails direct the trial repeatedly objection testified without specific court’s attention to the foundation- Subcontractor did not appear making al element considered deficient. Carter v. progress sufficient toward the completion Ctr., 1, Reg’l St. John’s Med. “ 88 S.W.3d of its work. ‘Relevant evidence received Furthermore, “[w]here objection may without properly be consid might evidence that have been excluded Goldman, Appelhans ered....’” upon timely motion to strike is received (Mo.1961) (quoting Good motion, without such probative worth Co., man v. Allen Cab 360 Mo. and effect are for the trier of the facts.” (1950)). previously As Revenue, Simmons v. Dir. related, at point one in his testimony 897, 900 (Mo.App.1999). Knight regarding testified a letter he Taylor, wrote to employee, Subcontractor’s problematic More was the tes “talking about manpower.” Knight relat timony Harley, in explana Howser ed that writing the letter didn’t “[i]t tion of how Contractor’s Exhibit “S” was seem like at the they time that had still Contractor, According created. Exhibit not made a concerted job effort to man the designed “S” was chart to compare the properly up and catch from the schedule actually job number of masons on the that they were falling behind.” Addition those that would have necessary been ally, the letter discussed damages that job complete according project could be assessed if Subcontractor did not schedule. Contractor maintains the testi remedy problem. It our view that mony of employees its two was admissible Knight’s testimony did not constitute ex to refute testimony re pert testimony, but rather evidentiary was garding job adequately whether the was in nature and properly admitted. staffed and timely could have been com pleted, using even laying brick rates lower
Likewise, Latimer testified he than those testified to Subcontractor. personal had knowledge of Subcontractor’s determine, however, the trial activities at site. He related court’s consideration of this evidence did that as architect in connection with the prejudice not Subcontractor to the extent project it a “masonry intensive” build that a required. reversal and a new trial is ing and further acknowledged that “ma *18 presume in a court-tried case that the sonry up larger takes a proportion of the trial court can sort out incompetent the ultimate on ... project work a like this evidence irrelevant and base its deci than it will on types other of structures.” sion competent on the and the relevant. As points brief, out in his when Sullivan, Wilson v. 922 S.W.2d Latimer testified that “[w]e didn’t feel that (Mo.App.1996). Point denied. staffed,” the adequately the testimony related to conversations that oc In point, ninth and final Subcontrac- Latimer, Contractor, curred between and tor essentially alleges trial court error in surety of obligation on that the the sustaining entering judgment providing summary be “null and if the contractor partial Firemen’s motion for would void payment directly or indi- judgment promptly on claim for makes due,” rectly, simply for all sums affords damages. vexatious refusal surety a argues comply right Firemen’s failed to with the the to secure release 74.04, in any part of it did the provisions judgment Rule releases from of of undisputed not include a statement is Failure satisfied the contractor. 74.04(c); surety as Rule required by judgment facts against to enter a and, defective; accordingly, litigation otherwise in the invites further event judgment was not entitled to pay damages Firemen’s contractor fails to a matter of law. against it. assessed were moot.
We determine that this issue is judg- I of the part would reverse the respect to the correctness issue with on purports impose liability ment that of judgment of the trial court’s in favor surety [Contractor] “to the extent that Firemen’s as to Subcontractor’s relates satisfy judgment,” and unable to this fully refusal claim has been dis- vexatious with directions that remand cussed in Point Six. Point denied. damages contractor awarded against the In all jointly surety. entered portion judg-
That of court’s I in the respects, principal other concur in- statutory ment denying Subcontractor opinion. $33,561.50, sum of principal terest annum, per pursuant to
at the rate of 9% 408.020, is and the cause
section reversed entry to the trial court for of
is remanded In opinion.
an order consistent this respects
all other of the trial
court is affirmed. P.J., PARRISH, part in concurs INC., BODY, Appellant, DK & AUTO part separate opinion. dissents SHRUM, J., concurs. EMPLOYMENT DIVISION OF PARRISH, Presiding Judge, E. JOHN SECURITY, Respondent.
concurring part dissenting part. No. WD 64400. parts principal I concur in all of than in the opinion disposition other Appeals, Missouri Court City Indepen- Point Five. As stated Western District. Briggs dence v. Kerr Const. Use Aug. (Mo. Inc., Co.,
Paving 1997), App. principal and referred to rule, surety’s general
opinion, “[A]s
liability damages for contract is coexten- my principal.”
sive with that requires judg-
opinion, that rule law against the contrac-
ment that was entered
tor this case also be entered suggest provision I surety.