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affirming award of damages in breach-of-contract claim because damages would not have occurred "but for [defendants'] breach of contract"
Summary of this case from Boulevard RE Holdings, LLC v. Mixon Ins. AgencyOpinion
No. ED89269
May 6, 2008
Appeal from the Circuit Court of Jefferson County, Hon. Timothy J. Patterson.
Dana A. Hockensmith, St. Louis, MO, Attorney For Appellants.
Marc B. Fried, Hillsboro, MO, Attorney For Respondent.
Paul Vincent Rost, St. Louis, MO, Attorney For Intervenors.
Pamela M. Triplett, Ted F. Frapolli, St. Louis, MO, Attorneys For Cross-Appellants.
Essex Contracting, Inc. ("Essex") and Federal Insurance Company ("Federal") (collectively referred to as "Appellants") appeal from the judgment entered against them on their declaratory action to have bonds released. J.H. Berra Paving Co., Inc. ("Berra") and Boling Concrete Construction, Inc. ("Boling") cross-appeal from the judgments entered against them. We affirm in part and reverse in part.
I. FACTS AND PROCEDURAL BACKGOUND
Essex was the developer of the residential subdivision known as Winter Valley Subdivision ("the Subdivision") located in Jefferson County, Missouri ("the County"). The plans for the development of the Subdivision were submitted to the County for approval and were approved. The Subdivision would contain approximately five hundred homes and five miles of streets. Before construction began, Essex had to comply with the County Subdivision Regulations ("the Subdivision Regulations"). The Subdivision Regulations required that a bond, letter of credit, or cash be posted, or that the improvements be constructed before final plat approval. Because Essex sought plat approval prior to construction of the improvements, Essex posted three separate land subdivision bonds in the amount of $2,256,372.00, $834,812.79, and $507,065.00 to cover three different phases of construction in the Subdivision. The amount of the bonds totaled $3,598,249.79. All three of the land subdivision bonds were provided by Federal. Thus, Federal was the surety for the bonds. The terms of the bonds provided:
WHEREAS, in said Subdivision Regulations provision has been made whereby the Principal may in lieu of the final completion of said improvements and utilities, file a surety bond acceptable to Jefferson County in favor of said County, which shall indemnify said County and secure to said County the actual construction of such improvements and utilities in a manner satisfactory to said County, in the event said Principal shall fail to install said improvements and utilities within two (2) years from the date of the approval of said Subdivision Plat[.]
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NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that if said Principal shall complete the installation and construction of such improvements and utilities as the same are prescribed and required by the Jefferson County Planning and Zoning Commission pursuant to the Subdivision Regulations adopted by Jefferson County and upon obtaining a letter to that effect from the Jefferson County, Planning Director, then this obligation shall be void, otherwise to remain in full force and effect.
Essex also entered into a "Guarantee Under Subdivision Regulations" ("the Guarantee") with the County incorporating the bonds and obligations under the bonds. The Guarantee was signed by Essex and not by Federal. The Guarantee provided that the bonds "were issued to be used to guarantee the construction, installation and completion of the required subdivision improvements in Winter Valley Subdivision . . . all in accordance with the approved plans therefore and in accordance with the Subdivision Regulations of Jefferson County." The Guarantee further provided that in the event that Essex "abandon the Subdivision or fail to complete the improvements within one (1) year hence from the date of the COUNTY'S approval of this Guarantee Agreement, the COUNTY may complete, or have completed, the said improvements and the SURETY shall disburse on the land subdivision bonds therefore, as ordered and directed by the COUNTY."
After initial plat approval and the posting of the bonds, the construction of the Subdivision began in 1995. Essex cleared and graded the land as well as prepared and compacted the subgrade for the streets. Essex was responsible for the installation of the streets. Essex contracted with Berra and Boling to pour the concrete streets within the Subdivision. The contracts with Berra and Boling required specific concrete thicknesses as set forth in the approved plans and the Subdivision Regulations. The approved plans and the Subdivision Regulations required streets that were twenty-six feet in width to have a thickness of six inches and streets that were thirty feet in width to have a thickness of seven inches.
Berra poured approximately two-thirds of the streets and Boling the other one-third of the streets. Berra and Boling poured the concrete streets by using a slip-form paving technique whereby the concrete was laid in a continuous fashion and the control joints were added later creating what appeared to be separate slabs of pavement. Prior to paving, compaction tests of the subgrade were conducted to make sure the subgrade met the compaction requirements. The streets of the Subdivision were poured from approximately 1995 through 1998. The Subdivision streets were designed to last twenty to thirty years with regular use. The Subdivision streets are private streets that become the sole responsibility of the Subdivision's trustees to maintain with funds provided by the property owners because the County does not maintain subdivision streets.
Some areas of the Subdivision streets began failing after they were poured. Essex recognized that certain sections needed to be replaced, and the repairs were done at the County's request. Essex hired S D Construction Company ("S D") to replace some sections of the streets. At Essex's request, Berra and Boling also made certain repairs and replacements to the streets. The repairs were completed in 1998 through 2000. During the repairs, it became known that there were some deficiencies in street thickness.
In April 2000, the County ordered Essex to perform core testing of the Subdivision streets. SCI Engineering, Inc. ("SCI") tested one hundred and six core samples from certain areas of the Subdivision streets for thickness. SCI's testing showed that thirty-seven sections were thin by more than three tenths of an inch. Essex subsequently had Berra and Boling replace certain slabs of concrete that were thin, at Berra's and Boling's cost. At that time, Essex believed that the only remaining issue for the release of the Bonds was to address the thickness issue, which it had done.
Essex represented to the County that the Subdivision improvements were complete and requested release of the bonds several times. The Subdivision Regulations require completion of the Subdivision improvements before the bonds could be released. The determination of completion begins with the developer requesting an inspection when the developer believes it has completed all the improvements. An inspection is then performed by the County, a recommendation is made by the County officials to the County Commission, and the County Commission then makes the final determination whether the improvements have been completed to the Commission's satisfaction per the approved plans and the Subdivision Regulations and whether the bonds should be released. Upon request by Essex for release of the bonds, the County denied each of the requests. Instead, the County provided Essex with deficiency lists of failures in completion of the improvements.
After failing to get the bonds released and receiving another deficiency list, Essex determined that it was not going to be able to obtain release of the bonds and filed a declaratory judgment action against the County on May 15, 2001 seeking release of the bonds. Essex alleged it had "fully completed" the "improvements and developments" of the Subdivision.
On July 12, 2001, the County Commission authorized a partial release of the bonds in the total amount of $2,582,412.00. After this partial release by the County acknowledging that certain other improvements in the Subdivision had been completed, $1,015,837.79 remained.
Essex's lawsuit against the County for complete release of the remaining bonds continued. The County countersued Essex and added Federal as a third-party defendant for its failure to disburse the bonds to the County. Federal filed a cross-claim against the County for a declaratory judgment that the bonds were either void as to Federal or that the Subdivision improvements had been completed. Members of the Winter Valley Homeowners Association ("Intervenors") filed a motion to intervene and a verified petition for declaratory relief, injunctive relief, and damages against Essex. In their petition, Intervenors included six counts: Count I for declaratory judgment and injunctive relief; Count II for negligence; Count III for negligence per se; Count IV for zoning enforcement; Count V for breach of contract; and Count VI for promissory estoppel. Essex filed third-party claims against Berra and Boling for indemnity. Essex later amended its third party petitions against Berra and Boling to add breach of contract claims.
After the trial, the trial court found Essex waived its argument regarding its obligation to repair the streets by its actions of replacing certain portions of the streets. In addition, the trial court found Essex breached the Guarantee by failing to complete the Subdivision streets pursuant to the Subdivision Regulations. The trial court further found Essex abandoned the Subdivision before completion and failed to complete the Subdivision improvements within one year of the date of the Guarantee as required by the Guarantee. The trial court held that the County and Intervenors, as third party beneficiaries of the bonds and the Guarantee, were entitled to hold the bonds, and that Essex and Federal must pay the remainder of the bonds in the amount of $1,015,838.00 to the County so the County can complete the Subdivision improvements. The trial court further ordered civil penalties under Appendix E of the Subdivision Regulations, which provides a testing method for evaluating the thickness of the streets and a monetary adjustment depending upon the amount by which any street is not built according to the proper thickness, for thin slabs in the amount of $102,174.65 against Essex and Federal to be paid to the County out of the bonds. In addition, the trial court entered judgment in favor of Essex on part of its third party claims against Berra for $28,261.37 and against Boling for $73,913.28, which totals $102,174.65. The trial court also ordered Berra to pay $6,468.92 and Boling to pay $6,040.72 to reimburse Essex for the testing of the streets. The trial court further ordered Essex to pay Intervenors costs in the amount of $35,875.00 for work performed to repair streets. At the conclusion of its judgment, the trial court stated that any claim of any party not specifically ruled on in the judgment was deemed denied. Intervenors subsequently sought attorney's fees pursuant to Sections 64.895 and 89.491, RSMo 2000, and the trial court awarded Intervenors attorney's fees in the amount of $219,277.00 against Essex, $7,088.00 against Berra, and $17,013.00 against Boling. This appeal follows.
All further statutory references are to RSMo 2000 unless otherwise indicated.
II. POINTS ON APPEAL
Appellants assert six points on appeal. Appellants argue the trial court erred (1) in ordering Appellants to pay the remainder of the bonds to the County to complete the Subdivision streets, (2) in failing to enter judgment in favor of Essex and against Boling in the full amount of the judgment against Essex, (3) in awarding Intervenors $219,277.00 in attorney's fees, (4) in assessing only $7,088.00 in attorney's fees against Berra and only $17,013.00 in attorney's fees against Boling, (5) in awarding Intervenors costs in the amount of $35,875.00, and (6) in ordering that the County and Intervenors were entitled to hold the bonds to guarantee completion of the streets. In its cross-appeal, Berra raises three claims of error asserting the trial court erred (1) in awarding damages of $28,261.37 against Berra for thin concrete, (2) in assessing attorney's fees against Berra, and (3) in assessing testing fees to Berra. Boling raises five claims of error in its cross-appeal. Boling contends the trial court erred (1) in relying on and applying Appendix E in awarding damages for thin concrete, (2) in awarding damages of $73,913.28 against Boling, (3) in assessing attorney's fees against Boling, (4) in assessing testing fees to Boling, and (5) in assessing penalties against Boling for thin concrete. For ease and clarity of this opinion, we will discuss some of the points on appeal and cross-appeal out of order.
III. STANDARD OF REVIEW
Our review of this appeal is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), which requires us to affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Shapiro Bros., Inc. v. Jones-Festus Properties, L.L.C., 205 S.W.3d 270, 273 (Mo.App.E.D. 2006). We accept all evidence and inferences therefrom in the light most favorable to the prevailing party and disregard all contrary evidence. Murphy, 536 S.W.2d at 32. Furthermore, as in all court tried civil cases, the credibility of the witnesses and the weight to be given their testimony are matters for the trial court. Farm Properties Holdings, L.L.C. v. Lower Grassy Creek Cemetery, Inc., 208 S.W.3d 922, 924 (Mo.App.S.D. 2006). Although we defer to the trial court on factual determinations, we do not defer to the trial court's determinations of law. Id.
IV. COMPLETION OF THE STREETS
In their first point, Appellants argue the trial court erred in ordering Appellants, jointly and severally, to pay the entire remainder of the bonds in the amount of $1,015,838.00 to the County so that the County may hold the bonds to complete the Subdivision streets consistent with the approved plans and the Subdivision Regulations. Appellants contend there was not substantial evidence that Essex failed to complete construction of the Subdivision streets in accordance with the approved plans and the Subdivision Regulations. We agree.
Here, Appellants provided the County with three bonds and the operative provisions of the bonds required Essex to "complete the installation and construction of such improvements as the same are prescribed and required by . . . the Subdivision Regulations." Essex also provided the County a Guarantee "that all required utilities and improvements will be installed, constructed and completed." Thus, under the bonds and the Guarantee, Essex was bound to complete the Subdivision improvements according to the approved plans and the Subdivision Regulations. Appellants' liability is limited by the terms and conditions of the bonds and the Guarantee. Marcomb v. Hartford Fire Ins. Co., 934 S.W.2d 17, 20 (Mo.App.W.D. 1996). The improvements involved in the present case are the streets of the Subdivision. The issue before this court is whether the evidence showed Essex failed to complete the Subdivision streets according to the approved plans and the Subdivision Regulations.
In this case, all the streets that Essex promised to construct in the Subdivision were constructed, and these streets have been used since their construction. The trial court based its decision that Essex had breached the Guarantee by failing to complete the streets in accordance with the approved plans and the Subdivision Regulations upon the fact that Subdivision streets suffered from "two defects which have affected or will affect their design life — deficient thickness and excessive premature failure."
A. Premature Failure of the Streets
First, we address the issue of premature failure of the streets. We initially note the trial court found Essex waived its argument that it is under no obligation to repair the prematurely failing streets due to Essex's prior actions in replacing numerous slabs at the County's direction. A waiver is the intentional relinquishment of a known right.Investors Title Co. v. Chicago Title Ins. Co., 983 S.W.2d 533, 537-38 (Mo.App.E.D. 1998). "To rise to the level of waiver, the conduct must be so manifestly consistent with and indicative of an intention to renounce a particular right or benefit that no other reasonable explanation of the conduct is possible." Id. at 538.
Here, Essex's actions in replacing a number of slabs of concrete at the County's request did not manifest an intent to renounce the right to claim the streets in the Subdivision were completed and Essex was under no duty to make any further maintenance repairs. The actions of Essex were not a waiver of any right, but simply actions taken to secure release of the bonds. The trial court's finding of waiver is not supported by the evidence.
Turning to the evidence at trial regarding the premature failure of the streets, there was not substantial evidence presented at trial to show there was any specific failure on the part of Essex to properly construct the streets in the Subdivision, which resulted in the premature failures. At trial, Essex presented the testimony of Daniel Barnes of Brucker Earth Engineering Testing ("Brucker Engineering"), now known as Geotest, Inc. ("Geotest"), and Brian Oliver, an employee of Essex, among others. Mr. Barnes testified that Brucker Engineering had technicians on site at the Subdivision doing compaction tests during the entire project. Those technicians tested the areas where fill was placed and tested the subgrade before the streets were poured. Mr. Barnes testified that in areas that did not meet the necessary compaction requirements of the County, re-compaction was required and completed. Mr. Barnes testified they would not allow the concrete streets to be poured if the subgrade was not properly compacted. Mr. Barnes testified from his records and knowledge of the project, all areas of fill and subgrade for the streets met the necessary required compaction.
Mr. Oliver testified that to the best of his knowledge all areas of fill were properly compacted. Mr. Oliver also testified that he did not know of any areas where the subgrade compaction did not meet the County requirements.
The County presented the testimony of Randolph Boling, the owner of Boling, William Koehrer, the Director of Public Works for the County, and Daniel Barczykowski, a licensed engineer, among others. Mr. Boling testified he believed there were areas the streets should not have been poured on the subgrade and that there were areas where the concrete trucks drove on the subgrade prior to pouring the concrete. Mr. Boling testified, however, that those areas were re-compacted before the concrete was poured.
Mr. Koehrer testified regarding what sections of the streets he believed needed to be replaced. He made no attempt to determine the cause of any cracking. Mr. Koehrer stated that it would be "nearly impossible to determine the cause of the failure" of the slabs he believed should be replaced. Mr. Koehrer further testified that there is nothing about the cracking that keeps the residents and others from using the streets as intended.
The majority of the County's evidence regarding the premature failures of the streets came from the expert testimony of Mr. Barczykowski. Mr. Barczykowski testified concerning four issues with the streets: (1) settlement of fill; (2) poor subgrade support; (3) shrinkage of concrete after curing; and (4) steep grade. Mr. Barczykowski stated that shrinkage was a cosmetic problem that does not compromise the integrity of the streets. Mr. Barczykowski also identified steep grade as a problem, but no slabs cracking because of steep grade were listed for replacement. While it was undisputed that there were some thickness issues with the streets, which will be further discussed below, Mr. Barczykowski testified that the quality of the concrete was good and the thickness of the concrete was not the reason for the premature failures. Mr. Barczykowski attributed the vast majority of the failures to poor subgrade support. He also identified improperly compacted fill areas which are settling as reasons for cracking streets.
Mr. Barczykowski was not involved in the construction of the streets, and testified that he did not know how the streets were actually constructed. Mr. Barczykowski made visual observations of the streets, along with performing a few tests. Mr. Barczykowski testified he was "assuming [the cracking of the streets] was poor subgrade support" because he had no other explanation.
Mr. Barczykowski admitted that all of the results of compaction test he reviewed indicated that the necessary compaction requirements were met. Mr. Barczykowski stated he was not disputing that the fill was properly compacted and the compaction tests were completed. Mr. Barczykowski also stated that there can be passing compaction results at the time of fill and subgrade compaction and the street may still not have adequate support. Mr. Barczykowski further testified that even with proper compaction additional settlement of fill can occur after construction from the dead load weight of soils and that is not a result of a construction problem.
Geotest lost some of their compaction test records in a flood.
After reviewing all the evidence, we find there was not substantial evidence presented at trial to show there was any specific failure on the part of Essex to properly construct the streets in the Subdivision, which resulted in the premature failures. The evidence showed Essex fulfilled its responsibility by compacting and testing the subgrade prior to the pouring of the concrete. In addition, the evidence illustrated that the causes of the street failures could not be specifically determined. Moreover, while there was evidence of premature failing of some streets, under the bonds and the Guarantee, Appellants are not guarantors of a specific performance of the streets or the life of the streets. At issue here is a performance or completion bond, not a warranty bond. A performance bond protects obligee by obligating the surety to cover any extra costs obligee may incur to complete project if principal defaults.Miller-Stauch Const. Co. v. Williams-Bungart Elec., Inc., 959 S.W.2d 490, 494 (Mo.App.W.D. 1998). Essex's obligation was to build and complete the streets in accordance with the approved plans and Subdivision Regulations. Although there were issues with thickness remedied by the application of Appendix E as discussed below, the fact that some streets were prematurely failing does not establish, and it may not reasonably be inferred, that Essex failed to complete the improvements in accordance with the approved plans and Subdivision Regulations.
B. Thickness of the Streets
We now turn to the issue of the thickness of the streets. Pursuant to the Subdivision Regulations and the approved plans, streets that were twenty-six feet in width were to have a thickness of six inches and streets that were thirty feet in width were to have a thickness of seven inches. The core testing ordered by the trial court determined that two hundred eighteen slabs were deficient by more than three tenths of an inch. The evidence at trial demonstrated that the thickness of the streets has not hindered use of the streets in the manner and for the purposes intended. However, based on the application of Appendix E of the Subdivision Regulations, the trial court assessed civil penalties in the amount of $102,174.65 against Essex to complete the roads. The trial court specifically stated that "[f]rom the coring results, and applying the requirements of Appendix E, the sum of $102,174.65 should be paid to remedy the deficiencies in the thickness of the subdivision streets. This will bring about final completion of the streets on the thickness issue."
The thickness issue is specifically addressed and a remedy is provided for in the Subdivision Regulations through Appendix E. The Subdivision Regulations were amended in April of 2002 and Appendix E was added. Appendix E provides a testing method for evaluating the thickness of the streets. Appendix E also provides for a monetary adjustment depending upon the amount by which any street is not built according to the proper thickness. Appendix E states, in relevant part:
Whether the subdivider/developer has completed all the improvements prior to recording of the final plat or has entered into a guarantee agreement and provided security therefore, in order to gain permission to record the final plat, to obtain a release of all or a portion of the security the subdivider/developer must comply with the following requirements.
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c. Pavement that is deficient by 0.3 inch or less will be accepted. If any core measurement of thickness is deficient by more than 0.3 inches, the subdivider/developer will have the option of removing and replacing the pavement, or leaving the pavement in place and making a cash deposit into a Special Escrow Account to be established by the County Commission in accordance with the following schedule:Deficiency in Amount to be paid of Thickness into Special Escrow (Percent of unit value) 1.) .31 inches — .5 inches 20 % 2.) .51 inches — .75 inches 40 % 3.) .76 inches — Above Replace
Because Appendix E provides a method for enforcing thickness deficiencies in streets pursuant to the Subdivision Regulations and the trial court properly applied Appendix E in assessing civil penalties, the issue of the thin slabs was addressed and the streets were completed pursuant to the Subdivision Regulations.
Appellants are not appealing the award of civil penalties pursuant to Appendix E and do not challenge the application of Appendix E. However, Boling challenges the application of Appendix E in this case. In the first point of its cross-appeal, Boling argues Appendix E should not have been applied because it was enacted after the concrete was laid. The Missouri Constitution prohibits the enactment of any law that is "retrospective in its operation." Mo. Const. Article I, Section 13. This prohibition does not apply to procedural or remedial laws which do not affect substantive rights. Kinder v. Peters, 880 S.W.2d 353, 355 (Mo.App.E.D. 1994). A law affects substantive rights if it 'takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed. Id. On the other hand, procedural laws address how a cause of action is to be processed.Id.
Appendix E is a Subdivision Regulation adopted to enforce the County's policies and procedures for construction of streets. It changed the method of enforcement from replacement of slabs to monetary adjustment. Prior to the adoption of Appendix E on April 30, 2002, the County followed a practice which required removal of street slabs if found deficient in thickness beyond 3/10 of an inch. Appendix E is not a change in substantive law, but rather provides a new remedy. The trial court did not err in applying Appendix E retrospectively in the present case. Furthermore, Boling's argument there was not sufficient evidence that Appendix E is the appropriate measure of damages or that there are any damages for the thin slabs that have lasted for ten years, which do not need to be replaced fails. Evidence of damages is not required under Appendix E. Boling's point is denied.
The evidence showed that the streets were completed according to the approved plans and the Subdivision Regulations through the application of Appendix E, which is all that is required under the bonds and Guarantee. The County and Intervenors contend the streets were required to be completed in a manner satisfactory to the County. This requirement of the County's satisfaction is an objective standard of completion in accordance with the approved plans and Subdivision Regulations, not a subjective standard of satisfaction. Here, the evidence showed that the streets were completed according to the approved plans and the Subdivision Regulations. Therefore, it cannot be said that the streets were not completed in a manner satisfactory to the County. The trial court's finding that Essex breached the Guarantee by failing to complete the streets in accordance with the approved plans and Subdivision Regulations is not supported by substantial evidence.
C. Abandonment
The trial court also made a finding that Essex violated the Guarantee by abandoning the Subdivision before completion and failure to complete the improvements in one year from the date of the Guarantee. The Guarantee provided that in the event that Essex "abandon the Subdivision or fail to complete the improvements within one (1) year hence from the date of the COUNTY'S approval of this Guarantee Agreement, the COUNTY may complete, or have completed, the said improvements and the SURETY shall disburse on the land subdivision bonds therefore, as ordered and directed by the COUNTY." The Guarantee dated July 26, 2000 further provided that all required improvements would be "installed, constructed and completed within one (1) year from the date of approval."
Here, Essex filed its declaratory judgment action for release of the bonds on May 15, 2001, and ceased any work in the Subdivision at that time. Essex believed the Subdivision improvements were completed and was seeking judicial determination of whether the improvements were completed. Essex did not abandon the Subdivision and as we have stated above, the improvements including the streets were completed within the one year period. The trial court erred in finding Essex violated the Guarantee by abandoning the Subdivision and failing to complete the improvements within the one year required under the Guarantee.
D. Conclusion
In summary, the trial court erred in finding Essex had waived its argument regarding obligation to repair the streets. The trial court further erred in finding Essex breached the Guarantee and in awarding the remainder of the bonds to the County and Intervenors. In addition, the trial court erred in finding Essex violated the Guarantee by abandoning the Subdivision and failing to complete the improvements in one year from the date of approval of the Guarantee. Thus, with the exception of the $102,174.65 for the civil penalties to be paid out of the bonds, the trial court erred in awarding the remainder of the bonds in the amount of $1,015,838.00 to the County. Appellants' point is granted.
Because of our disposition of Appellants' first point, we need not address Appellants' second and sixth points. We now turn to Appellants' fifth point.
V. COSTS TO INTERVENORS
In their fifth point, Appellants contend the trial court erred in awarding Intervenors costs in the amount of $35,875.00 for street repairs paid by the trustees of the Subdivision. We agree.
As stated above, the trial court's ruling that Essex breached the Guarantee by not completing the streets is not supported by substantial evidence. Thus, Intervenors' claim for breach of contract based on the bonds and the Guarantee failed. Further, the trial court did not find in favor of Intervenors on their claims for negligence or negligence per se. Accordingly, Appellants are not liable for costs expended by the trustees to repair streets in the Subdivision and Intervenors' award of costs is without a proper basis. The trial court erred in awarding Intervenors $35,875.00 for cost of street repairs. Appellants' point is granted.
VI. ATTORNEYS FEES
In their third point, Appellants maintain the trial court erred in awarding Intervenors $219,277.00 in attorney's fees. We agree. Intervenors brought their claim of attorney's fees against Appellants pursuant to Section 89.491. Thereafter, the trial court entered its judgment stating:
[u]pon review of the Intervenor[s'] motion for attorney['s] fees along with the supporting documentation, the motions in opposition to the award of attorney[']s fees and costs, the Court enters judgments in favor of the [I]ntervenors in the amount of $219,277.00 against Essex Contracting, Inc., $7,088.00 against J.H. Berra Paving Co. Inc. and $17,013 against Boling Concrete Construction, Inc.
Section 89.491 provides, in pertinent part:
1. Any person or neighborhood organization as defined in section 32.105, RSMo, aggrieved by a violation described in this subsection may commence a civil action on his own behalf against any person who is alleged to be in violation of the provisions of chapter 64, RSMo, or this chapter, or in violation of any standard, regulation, or ordinance which has been adopted by any county or city pursuant to chapter 64, RSMo, or this chapter.
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4. The appropriate circuit court, in issuing any final order in any action brought pursuant to this section, shall award costs of litigation, including reasonable attorney's fees, to the prevailing party.
(Emphasis added.) Thus, under Section 89.491, in order to be entitled to attorney's fees, that party must be the prevailing party.
Based on our previous analysis, the trial court erred in its judgment regarding the bonds with the exception of its award of civil penalties pursuant to Appendix E in the amount of $102,174.65 to the County. In its judgment the trial court specifically stated it was entering judgment "in favor of the County on Count I of its counterclaim against Essex, and on its claim against Federal, in the amount of $102,174.65." The County was the prevailing party on the award of civil penalties.
Here, Intervenors do not prevail on any of their claims. As stated above, Intervenors claim for breach of contract failed. The trial court ruled that any claim not specifically ruled on in the judgment was denied. Thus, by failing to specifically rule on the counts of Intervenors' petition, the trial court denied Intervenors' counts for declaratory judgment and injunctive relief, negligence, negligence per se, zoning enforcement, and promissory estoppel. Intervenors' did not prevail on any of the claims in their petition. Under these circumstances, Intervenors are not a prevailing party and thus, are not entitled to attorney's fees under Section 89.491. The trial court's award of attorney's fees to Intervenors to be paid by Essex is erroneous. Furthermore, the trial court's award of attorney's fees to Intervenors to be paid by Berra and Boling is also erroneous.
Given this holding, we need not address Appellants' fourth point and Berra's second point on cross-appeal and Boling's third point on cross-appeal regarding attorney's fees.
VII. AWARD OF DAMAGES AGAINST BERRA AND BOLING
We now turn to Berra's and Boling's remaining points on cross-appeal. In its first point on cross-appeal, Berra contends the trial court erred in awarding damages of $28,261.37 against Berra for thin concrete that was tested in 2005 because Essex failed to prove that the slabs were poured by Berra when some of the slabs were replaced by S D. In Boling's second point on cross-appeal, it claims the trial court erred in awarding damages of $73,913.28 against Boling for thin concrete that was tested in 2005 because Essex failed to prove that the slabs were poured by Boling when some of the slabs were replaced by S D. Berra and Boling maintain there was no evidence as to whether the slabs that were tested and found to be thin in 2005 were poured by Berra or Boling or S D. We disagree.
When assessing the sufficiency of the evidence, we accept as true the evidence and inferences from the evidence that are favorable to the trial court's decree, and disregard contrary evidence. Braeshire Condominium Bd. of Managers v. Brinkmeyer, 841 S.W.2d 217, 219 (Mo.App. E.D. 1992). We consider all fact issues on which no specific findings were made to have been found in accordance with the result reached.Id.
Here, the trial court found that from the coring tests performed according to Appendix E, Berra was responsible for adjustments due to deficiencies in thickness in the amount of $28,261.37, and Boling was responsible for adjustments due to deficiencies in thickness in the amount of $73,913.28. The trial court entered judgment in favor Essex on its third party claims against Berra and Boling in these amounts.
At trial, there was evidence that, prior to the 2000 coring, S D replaced only 566 square yards of concrete. There was no evidence as to the location of the slabs S D replaced. Berra and Boling contend that based on the lack of evidence regarding the slabs poured by S D, Essex failed to meet its burden of proof.
Essex, as the plaintiff on its third-party claims, had the burden of proving the existence and amount of damages for thin concrete with reasonable certainty. Williams v. Williams, 99 S.W.3d 552, 557 (Mo.App. W.D. 2003). That burden is met when the plaintiff introduces sufficient evidence to make a prima facie case. Hautly Cheese Co. v. Wine Brokers, Inc., 706 S.W.2d 920, 922 (Mo.App.W.D. 1986). A prima facie case is made when the plaintiff produces sufficient evidence to support a verdict in favor of the plaintiff unless rebutted by other evidence.State ex rel. State Dept. of Public Health and Welfare v. Ruble, 461 S.W.2d 909, 913 (Mo.App. 1970). Once the plaintiff makes a prima facie case, the burden of going forward with the evidence shifts to the defendant. Id.
Here, the evidence at trial showed there were approximately five miles of streets contained in the Subdivision. Essex presented evidence that Berra poured two-thirds of the streets in the Subdivision and Boling poured the remaining one-third of the streets. The amount awarded by the trial court was based on Appendix E as a result of the coring performed and deficiencies in thickness discovered. At trial, Todd Glantt, the vice president of Berra, testified for Berra at trial that, according to his calculations, was responsible for $28,261.00 to account for thin slabs. This is sufficient evidence to support the award against Berra.
As to Boling, there was also sufficient evidence as to the amount of streets Boling poured. Essex presented evidence of the streets Boling poured. Boling failed to show that any of the thin slabs were not slabs that Boling poured. Essex proved its damage under Appendix E for thin concrete to a reasonable certainty. The trial court's judgment is supported by substantial evidence and is not against the overwhelming weight of the evidence. The trial court did not err in awarding Essex $28,261.37 for thin concrete from Berra and $73,913.28 for thin concrete from Boling. Berra's and Boling's points are denied.
VIII. DAMAGES UNDER THE CONTRACT BETWEEN ESSEX AND BOLING
In its fifth point on cross-appeal, Boling asserts the trial court erred in assessing penalties against Boling for thin concrete because the contract between Boling and Essex specifically stated that Boling had no liability for the slabs. We disagree.
In supporting its contention, Boling relies on its contract with Essex. The contract between Essex and Boling provided in paragraph 7 that:
Boling Concrete Construction will not be responsible for pavement after satisfactory test results are obtained from core drilling, cylinder tests, or any other method of testing required by governing inspection agency. In any case, responsibility by Boling Concrete Construction will not exceed ninety (90) days from completion of work.
Here, Boling did not complete its work under the contract because it did not construct the streets to the proper thickness according to the specification of the contract. The language of paragraph 7 of the contract does not release Boling from its liability to Essex for failing to construct the streets to the proper thickness. Furthermore, Boling cannot claim the benefits of the contract under these circumstances. "A party to a contract cannot claim its benefits where he is the first to violate it." Forms Mfg. Co. Inc. v. Edwards, 705 S.W.2d 67, 69 (Mo.App.E.D. 1985). The trial court did not err in entering judgment in favor of Essex and against Boling on Essex's third party claims for thin concrete. Boling's point is denied.
IX. TESTING FEES
In Berra's third point on cross-appeal and in Boling's fourth point on cross-appeal, they maintain the trial court erred in assessing testing fees because the contracts between Berra and Essex and Boling and Essex provide that testing costs were to be paid by Essex. We disagree.
On December 10, 2004, the trial court ordered coring pursuant to Appendix E performed on the streets of the Subdivision. Pursuant to the trial court's order, the coring was to be paid for by Essex, Berra, and Boling. There was no objection by the parties concerning the coring. It was necessary for the coring to be completed for all parties and the trial court to determine what, if any, issue remained regarding the thickness of the concrete. In a July 22, 2005 order, the trial court apportioned the costs between Essex, Berra, and Boling. In its judgment, the trial court ordered Berra to reimburse Essex $6,468.92 and Boling to reimburse Essex $6040.72 for testing of the streets ordered by the trial court in 2005.
Berra and Boling assert they are not responsible for testing fees under their contracts with Essex. The contract between Essex and Berra provided in paragraph 3 that "[a]ll required testing and inspection fees, are to be paid for by the Developer or Owner." The contract between Essex and Boling provided in paragraph 8 that "[a]ll testing/inspection fees to be paid for by developer or owner." Essex responds that the testing fees ordered by the trial court were not incurred pursuant to the contracts between the parties. Essex further argues that the thinness of the streets was caused by Berra's and Boling's breach of the contracts to pour the streets to the required thickness and that the damages caused by Berra's and Boling's breach are recoverable.
We agree with Essex. Berra and Boling contracted to pour the streets to the specified thickness and failed to do so constituting a breach of contract. The cost of the coring would not have been incurred by Essex but for Berra's and Boling's breach of contract. A plaintiff may recover for damages naturally and proximately caused by the commission of the breach and for those that could have been reasonably contemplated by the parties at the time of agreement. Gill Const., Inc. v. 18th Vine Authority, 157 S.W.3d 699, 717 (Mo.App.W.D. 2004). The trial court did not err in ordering Berra to reimburse Essex $6,468.92 and Boling to reimburse Essex $6040.72 for testing of the streets. Berra's and Boling's are denied.
X. CONCLUSION
In conclusion, the judgment of the trial court is reversed as to its award of the remaining amount of bonds, $1,015,838.00, to the County. Thus, Appellants are released from any further obligation to the County or the Intervenors under the bond and the bonds are hereby released and cancelled. The trial court's award of attorney's fees in the amount of $219,277.00 to Intervenors is reversed. The trial court's award of $35,875.00 in costs to the Intervenors is reversed. The trial court's award in favor of Essex on its third party claims in the amount of $28,261.37 from Berra and in the amount of $73,913.28 from Boling is affirmed. Finally, the trial court's award of testing costs to be reimbursed to Essex in the amount of $6,468.92 from Berra and in the amount of $6,040.72 from Boling is affirmed.
Intervenors have also requested attorney's fees on appeal. Because of the outcome of this appeal, we deny Intervenors' request.
Kathianne Knaup Crane, P.J. and Kenneth M. Romines, concur.
OPINION SUMMARY
Essex Contracting, Inc. ("Essex") and Federal Insurance Company ("Federal") (collectively referred to as "Appellants") appeal the judgment entered against them on their declaratory action to have bonds released. J.H. Berra Paving Co., Inc. ("Berra") and Boling Concrete Construction, Inc. ("Boling") cross-appeal the judgments entered against them.
AFFIRMED IN PART AND REVERSED IN PART.
Division One holds: The trial court erred in finding Essex had waived its argument regarding obligation to repair the streets. The trial court erred in finding Essex breached the bonds and the guarantee agreement between Essex and Jefferson County. In addition, the trial court erred in finding Essex violated the Guarantee by abandoning the Subdivision and failing to complete the improvements in one year from the date of the Guarantee. Thus, we reverse the judgment awarding the remainder of the bonds to the Jefferson County and Intervenors. The trial court did not err in entering its judgment based on Appendix E for civil penalties. The trial court erred in awarding costs for street repairs to Intervenors and the award of $35,875.00 in costs to the Intervenors is reversed. The trial court's award of attorney's fees from Essex, Berra, and Boling to Intervenors is reversed because Intervenors were not the prevailing party under Section 89.491, RSMo 2000. There was substantial evidence to support the trial court's finding in favor of Essex on its third party claims against Berra and Boling and the award in favor of Essex in the amount of $28,261.37 from Berra and in the amount of $73,913.28 from Boling is affirmed. Finally, the trial court did not err in awarding testing costs and the award of testing costs to be reimbursed to Essex in the amount of $6,468.92 from Berra and in the amount of $6,040.72 from Boling is affirmed.
KATHIANNE KNAUP CRANE, P.J. and KENNETH M. ROMINES, J., concur.