a:26:{s:9:"weblog_id";s:1:"5";s:8:"entry_id";s:0:"";s:6:"sticky";s:0:"";s:14:"allow_comments";s:1:"n";s:16:"allow_trackbacks";s:1:"n";s:10:"entry_date";s:19:"2009-05-08 04:14 AM";s:15:"expiration_date";s:0:"";s:23:"comment_expiration_date";s:0:"";s:8:"category";a:2:{i:0;s:2:"10";i:1;s:2:"54";}s:9:"author_id";s:1:"2";s:6:"status";s:4:"open";s:14:"trackback_urls";s:0:"";s:18:"versioning_enabled";s:1:"y";s:5:"title";s:32:"Missouri Construction Law Update";s:9:"url_title";s:32:"missouri_construction_law_update";s:6:"submit";s:6:"Submit";s:11:"field_id_20";s:32:"Missouri Construction Law Update";s:11:"field_ft_20";s:4:"none";s:11:"field_id_25";s:0:"";s:11:"field_id_45";s:82:"The following are synopses of Missouri cases related to the construction industry.";s:11:"field_ft_45";s:4:"none";s:11:"field_id_22";s:13:"law, Missouri";s:11:"field_ft_22";s:4:"none";s:11:"field_id_23";s:6440:"<p><em>by Michael P. Wolf<br />Riezman Berger</em></p>
<p>The following are summaries of&nbsp; recent Missouri cases related to the construction industry.</p>
<p><br />1. <em>Kansas City Hispanic Association Contractors, Inc. v. City of Kansas City</em>, (Mo.App.W.D. March 2009). In this case, the Kansas City Hispanic Association of ContractorsEnterprise and contractor Diaz Construction Co. sued H&amp;R Block and others on charges of contracting discrimination in relation to the construction of the company&rsquo;s new city headquarters &ndash; a $138 million dollar project. The suit alleged that H&amp;R Block failed to meet its goal of insuring that 15% of its subcontractors were minority-owned business. It was alleged that H&amp;R</p>
<p>Block and others used front companies to over-report $11.5 million dollars worth of minority-performed work on the project. Both the trial court and the court appeals ruled that because Diaz Construction did not resubmit a bid on masonry work in 2005 after the project&rsquo;s general<br />contractor had rejected the first round of bids, the company no longer was in a position to claim breach of contract and to have grounds to file a lawsuit.</p>
<p>Both courts went on to rule that they were not the proper forum to challenge affirmative-action policy violations, but rather, that the<br />proper remedy was for H&amp;R Block to potential pay liquidated damages to the Tax Increment Financing Commission. Further, the court found that the record showed that there was no statement or reliance form which to base any fraud claim and as such upheld the trial court&rsquo;s<br />dismissal of the case.</p>
<p>2.<em> Fire Sprinklers, Inc. v. Icon Contracting, Inc.,</em> (Mo.App.E.D. March 2009). Fire Sprinklers challenged the decision which entered judgment in favor of Icon on its counterclaim against Fire Sprinklers for breach of contract. While various items were awarded, the parties<br />only disputed how the trial court calculated the damages arising directly from the breach in question.</p>
<p>The parties had entered into a contract whereby Fire Sprinklers was to design and install a foam fire protection system for a company facility. When the system did not pass a fire department acceptance test, Icon notified Fire Sprinklers that it was terminating the agreement.<br />Fire Sprinklers sued and Icon asserted a breach of contract counterclaim.</p>
<p>The trial claim awarded Icon damages, which were challenged on appeal. On review, the court of appeals reduced the award to Icon for damages arising from the breach and the form to call for judgment as modified. Icon&rsquo;s damages were calculated by taking the amount of the loss it suffered as a result of the breach, the cost of completion, and subtracting the amount Icon saved by not having<br />to complete its performance under the contact, the contract retainage. Icon was relieved of paying a certain amount and this calculation reflected the savings Icon sustained when it decided to end the contract.</p>
<p>This calculation was necessary in determining Icon&rsquo;s damages actually suffered. The trial court should have considered the costs Icon avoided in determining damages, so the court of appeals modified the trial court&rsquo;s judgment accordingly.</p>
<p><br />3. <em>Repair Masters Construction, Inc. v. Gary</em>, (Mo.App.E.D. March 2009). Plaintiff contractor brought suit against defendant homeowner for breach of contract and in response, the homeowner raised the affirmative defense of unconscionability. The court awarded damages to<br />the contractor and the homeowner appealed. The homeowner&rsquo;s house was damaged by fire. The contractor did emergency boarding up that night, and the homeowner entered a contract with the contractor that same night that a liquidated damages clause of fifteen percent.</p>
<p>However, the contractor, the homeowner and the homeowner&rsquo;s insurer never agreed on the proper scope of work. The contractor submitted a number of bids, including one over $90,000. The court held the circumstances surrounding the formation of the contract, namely one of the contractor&rsquo;s salesman encouraging the homeowner to sign the agreement only hours after extensive damage<br />by fire, with no definiteness as to the scope of work or price, and no contingency of acceptance of the contractor&rsquo;s proposed scope of work and price estimate, was evidence of procedural unconscienceability.</p>
<p>The contract was open-ended and forced the homeowner to wait for months, while the contractor, the public adjuster and her insurance company haggled over the scope of work and cause. The agreement compelled the homeowner to use the contractor no<br />matter how much those estimates exceeded those of the insurer&rsquo;s adjusters. Overall, the contract was unduly harsh and unconscionable and the trial court&rsquo;s judgment was reversed.</p>
<p>4. <em>Hilles v. Thomas</em>, (Mo.App.S.D. March 2009). Plaintiff&rsquo;s subcontractor sued defendants, homeowners, a company and a loan business, to recover money for services rendered. The subcontractor agreed to subcontract the drywall crew to a worker of the homeowners for a certain amount. The homeowners ultimately paid the worker, but the subcontractor received nothing. After this, and not receiving anything for more work performed, the subcontractor sued.</p>
<p>The trial court entered a judgment in his favor and the court affirmed on appeal. It was clear from the trial transcript that the trial court found that the homeowners agreed to pay for all of the subcontractor&rsquo;s work, including prior work. The subcontractor&rsquo;s testimony accurately supported this conclusion. The record and reasonable inferences established one homeowner&rsquo;s ability to benefit and bind others, including his wife, regarding the subcontractor&rsquo;s services, notwithstanding the fact that the wife had not signed any of the applicable agreements at issue. The judgment was thus supported on contract grounds.<br /><em><br />Please Note: This report was complied from information set forth in various legal publications. This report is not intended to provide, and must not be relied upon for, legal advice. Actual resolution of legal issues depends on many factors. All readers of this report should consult with legal counsel before taking any action on matters<br />set forth in this report.</em></p>";s:10:"category_0";s:2:"10";s:10:"category_1";s:2:"54";}