Bolivar Insulation Co. v. R. Logsdon Builders, Inc.

Decision Date17 June 1996
Docket Number20164,Nos. 20089,s. 20089
Citation929 S.W.2d 232
PartiesBOLIVAR INSULATION COMPANY, Plaintiff, v. R. LOGSDON BUILDERS, INC., d/b/a R. Logsdon Contracting, Inc., Appellant, and W.M. Kryger Company, d/b/a Carsten Auto Glass, Inc., and Carsten Auto Glass Service, Inc., Respondents.
CourtMissouri Court of Appeals

Kendall R. McPhail, Lowther, Johnson, Joyner, Lowther, Cully & Housley, L.L.C., Springfield, for appellant.

Charles B. Cowherd, Farrington & Curtis, Springfield, for respondents.

PARRISH, Judge.

This appeal arose from litigation over construction of a commercial building. R. Logsdon Contracting, Inc., (Logsdon) appeals the amount of interest, rate of interest and the amount of attorney's fees it was awarded on Count II of its crossclaim against W.M. Kryger Co., Carsten Auto Glass, Inc., and Carsten Auto Glass Service, Inc., (collectively referred to as "Owner") and the part of the judgment that found for Owner and awarded damages on Count I of Owner's crossclaim against Logsdon. This court reverses the amount of interest awarded Logsdon on Count II of its crossclaim and the rate of interest allowed; reverses the award in favor of Owner on Count I of Owner's crossclaim against Logsdon and remands with directions as to those claims. The judgment is affirmed in all other respects.

Logsdon entered into a contract with Owner in which Logsdon agreed to construct a commercial building for Owner to use in its automobile glass business. Construction of the building was begun in late spring 1989. It was completed at the end of December 1989, or during the first part of January 1990. Owner took possession of the building during December 1989.

Logsdon obtained the services of a subcontractor, King Electric Co., Inc., (King) for part of the work required by the construction contract. In addition to performing work pursuant to its subcontract agreement with Logsdon, King performed work on the building directly for and at the request of Owner. Disputes arose between Logsdon and Owner and between King and Owner concerning amounts Owner owed for the work done by the contractors.

While the construction was in progress, Owner requested various changes and additions to the work required by the building plans. At the time Owner requested the first change, Logsdon and Owner agreed that Logsdon would maintain a record of additional work required by reason of Owner's changes and additions. Logsdon was to submit one payment request for that work when the project was completed. When the project was completed, Logsdon provided Owner with a "list of extras" for the additional work.

Owner responded by preparing its own list. Owner's list included a review of items submitted by Logsdon and various credits Owner claimed it was entitled to receive from Logsdon. Logsdon then prepared a revised list and submitted a request for payment. The request for payment was prepared on the same form Logsdon used to request periodic payments throughout the course of construction. Owner made no payment for the extras Logsdon submitted.

Logsdon thereafter filed a statement of mechanic's lien on the property where the building was located, followed by an action to enforce the lien. See §§ 429.080 1 and 429.170. Logsdon's action against Owner included two additional counts, one for breach of contract and one in quantum meruit. It was consolidated with a suit to enforce a mechanic's lien that a material supplier, Bolivar Insulation Co. (Bolivar Insulation), had previously filed. See § 429.280.

After Logsdon's action had been consolidated with the one brought by Bolivar Insulation, King filed suit against Owner contending Owner had failed to pay King for work done in addition to what its contract with Logsdon required. King alleged that the work for which it sought payment had been performed specifically at Owner's request. King's action was consolidated with those of Bolivar Insulation and Logsdon.

Bolivar Insulation dismissed the action it brought against Owner prior to trial. Trial proceeded on Logsdon's and King's claims against Owner and on a crossclaim Owner filed against Logsdon. The trial court entered judgment as follows:

                King's claim against Owner      Judgment for King in the amount of $3,184.71
                                                  with prejudgment interest in the amount of
                                                  $1,270.96 representing interest from May 14
                                                  1990, at the rate of 9% per annum
                

Logsdon's claims against Owner Count I -- Judgment for Owner

                                                Count II -- Judgment for Logsdon in the amount
                                                  of $21,097 plus prejudgment interest on
                                                  $11,187 of that amount at the rate of 9% per
                                                  annum from January 5, 1990; interest on
                                                  judgment at the rate of 9% per annum after
                                                  November 7, 1994; attorney fees of $5,000
                                                Count III -- Judgment for Owner
                

Owner's claims against Logsdon Count I -- Judgment for Owner in the amount of

                                                  $1,396.72 with prejudgment interest in the
                                                  amount of $557.20 representing interest from
                                                  May 14, 1990, at the rate of 9% per annum
                                                Count II -- Judgment for Logsdon
                

Logsdon's appeal is directed to (1) the amount of interest the trial court awarded on damages allowed Logsdon in the judgment rendered in its favor on Count II of its claim against Owner; (2) the amount of attorney's fees the trial court awarded Logsdon on its claim against Owner; and (3) the award of damages to Owner on its claim against Logsdon.

The Trial

The trial that produced the judgment from which Logsdon appeals took five days to complete and was interrupted by lengthy continuances. It commenced February 24, 1994. Opening statements and testimony from two witnesses were heard that day. Trial was to resume February 25; however, the witness whose testimony had been interrupted by the overnight adjournment was ill and could not appear. The trial court continued the case. Trial was scheduled to resume on May 26. On May 20 the trial court granted a motion for continuance. It rescheduled the remainder of the trial for July 28 and 29.

Trial resumed July 28 and 29 but was not completed. It resumed August 25, then was adjourned to September 2. Trial was completed that date and the case taken under submission.

Logsdon presents six claims of trial court error in its appeal. Points I, II and IV are directed to the amount of prejudgment interest the trial court awarded Logsdon on Count II of its crossclaim against Owner. Point III is directed to the trial court's limitation of postjudgment interest to 9% rather than a contract rate of 18% per annum. Point V contends the trial court erred in limiting the amount of attorney's fees awarded Logsdon to $5,000. Point VI is directed to the part of the judgment that found in favor of Owner on Count I of its crossclaim against Logsdon.

Prejudgment Interest

After the trial court entered judgment in this case, Owner filed a motion for new trial and an alternative motion to amend the judgment. The trial court granted the alternative motion and filed an "Amended Judgment." The amended judgment included the findings:

With respect to Count II of the Crossclaim of [Logsdon] against [Owner], the Court entered judgment in favor of [Logsdon] against [Owner] for the sum of Nineteen Thousand Seven Hundred Dollars ($19,700.00), together with prejudgment interest thereon at the rate of Nine Percent (9%) per annum from and after January 5, 1990, being the sum of Eight Thousand Five Hundred Eighty-Four and 02/100 Dollars ($8,584.02) as and for prejudgment interest, with post-judgment interest at the rate of Nine Percent (9%) per annum from and after November 7, 1994,.... The Court awarded prejudgment interest at the rate of Nine Percent (9%) per annum rather than the rate of Eighteen Percent (18%) per annum as set forth in the contract admitted into evidence on the basis of the Court's finding that approximately one-half (1/2) of the amount claimed in this Crossclaim was offered prior to the filing of this litigation.

The trial court directed:

The judgment in favor of [Logsdon] on Count II of its Crossclaim against [Owner] is increased to the sum of Twenty-One Thousand Ninety-Seven Dollars ($21,097.00), together with prejudgment interest at the rate of Nine Percent (9%) per annum from January 5, 1990 through November 7, 1994 on Eleven Thousand One Hundred Eighty-Seven Dollars ($11,187.00) of said amount, being the total sum of Four Thousand Eight Hundred Seventy-Four and 64/100 Dollars ($4,874.64) as and for prejudgment interest,.... Prejudgment interest is limited to Nine Percent (9%) per annum on Eleven Thousand One Hundred Eighty-Seven Dollars ($11,187.00) rather than Nine Percent (9%) on the entire amount awarded under Count II of this Crossclaim for the reason that the sum of Eleven Thousand One Hundred Eighty-Seven Dollars ($11,187.00) is the liquidated portion of the entire amount awarded and the balance is found by the Court to be unliquidated. Prejudgment interest is limited to the rate of Nine Percent (9%) per annum rather than the amount of Eighteen Percent (18%) per annum for the reasons that the amount awarded is not the result of unpaid invoices as required under the terms of the contract placed in evidence and the length of time between the filing of this case and trial.

Logsdon's work for Owner was done pursuant to a contract dated April 7, 1989. The contract consists of two pages, the first of which is a statement of transmittal by Logsdon that references certain architect drawings and specifications "to be provided by Bill Derington, architect, revised and dated ...

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