Buchanan v. Rentenbach Constructors, Inc.

• Decision Date: 28 May 1996
• Docket Number: No. 68841,68841
• Citation: 922 S.W.2d 467
• Court: Missouri Court of Appeals
• Parties: David Shawn BUCHANAN, Plaintiff, v. RENTENBACH CONSTRUCTORS, INC., Defendant/Third-Party Plaintiff/Appellant, v. K & K ELECTRIC COMPANY, Third-Party Defendant/ Respondent.

Page 467

922 S.W.2d 467

David Shawn BUCHANAN, Plaintiff, v. RENTENBACH CONSTRUCTORS, INC., Defendant/Third-Party Plaintiff/Appellant, v. K & K ELECTRIC COMPANY, Third-Party Defendant/ Respondent.

No. 68841.

Missouri Court of Appeals,

Eastern District,

Southern Division.

May 28, 1996.

Kenneth L. Dement, Jr., Sikeson, for Rentenbach Const.

James A. Cochrane III, Matthew M. Mocherman, Cape Girardeau, for K & K Elec. Co.

RHODES RUSSELL, Judge.

Rentenbach Constructors, Inc. ("Rentenbach") appeals the dismissal of its third-party petition for indemnification filed against K & K Electric Company ("K & K"). We reverse and remand.

When reviewing the dismissal of a cause of action this court examines the pleadings, allowing them their broadest intendment, treating all facts alleged as true, and construing the allegations favorably to the pleader, to determine whether they invoke principles of substantive law. Kayes v. Kayes, 897 S.W.2d 51, 53 (Mo.App.1995).

With those principles in mind, the record reveals that in 1989, Rentenbach, as general contractor, entered into a subcontract agreement with K & K to perform the electrical work and the electrical design for a project in Cape Girardeau. While performing its work under the project, David Buchanan, an employee of K & K, sustained injuries when the elevated platform lift he was operating hit a hole in the floor and tipped over. Buchanan recovered workers' compensation benefits from K & K for those injuries.

Buchanan thereafter filed suit against Rentenbach asserting it was negligent in (1) causing or permitting the stakes and flagging surrounding the hole to be removed, (2) causing or permitting the gravel from the hole to be removed, (3) failing to keep the premises safe, and (4) permitting K & K to use threewheel platforms. Rentenbach filed its answer denying each allegation and asserting as an affirmative defense Buchanan's contributory negligence.

Rentenbach, in turn, filed a third-party petition against K & K for indemnification for all sums to be paid to Buchanan. The indemnity claim was based on Article 12 of the subcontract agreement. That provision stated in pertinent part:

12.1 To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless ... the Contractor ... from and against all claims, damages, loss and expenses, including but not limited to attorney's fees, arising out of or resulting from the performance of the Subcontractor's Work provided that:

(a) any such claims, damage, loss, or expense is attributable to bodily injury, sickness, disease, death, or to injury to or destruction of tangible property (other than Subcontractor's Work itself) including the loss of use resulting therefrom, to the extent caused or alleged to be caused in whole or part by an [sic] negligent act or omission of the Subcontractor or anyone directly or indirectly employed by the Subcontractor or anyone for whose acts the Subcontractor may be liable, regardless of whether it is caused in part by a party indemnified hereunder:

(b) such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this Article 12.

K & K filed its motion to dismiss the third-party petition claiming that the subcontract agreement between it and Rentenbach did not contain a clear and unequivocal provision for K & K to indemnify Rentenbach against claims based solely upon Rentenbach's negligence. The dismissal motion further asserted the third-party petition failed to state a cause of action upon which relief could be granted.

On August 2, 1995, the dismissal motion was granted without explanation. Rentenbach filed its notice of appeal on August 11, 1995, appealing the court's order dismissing its third-party petition. During this period there were on-going negotiations between Buchanan and Rentenbach, which eventually resulted in a settlement wherein Rentenbach agreed to pay Buchanan $115,000.00 in exchange for Buchanan releasing Rentenbach and its assigns from all claims. The release was dated August 30, 1995 and, after being advised of such, resulted in the dismissal of Buchanan's action against Rentenbach with prejudice on September 8, 1995.

Our first concern in addressing any appeal is the question of our jurisdiction which we must review sua sponte. We have jurisdiction over final judgments disposing of all parties and all issues. Concepts Communication Management Corp. v. Newhard Cook & Co., 829 S.W.2d 554, 555 (Mo.App.1992). A cursory review of the record herein reveals that at the point when Rentenbach filed its notice of appeal on August 11, 1995, not all issues were disposed of as there was still pending before the court Buchanan's claim against Rentenbach. Rule 81.05(b) states that when a notice of appeal is filed prematurely the early notice will be considered as filed immediately after the time the judgment becomes final. The judgment from which Rentenbach now appeals became final after the order of September 8, 1995, when the court issued its judgment dismissing Buchanan's claim. It was at that point in time when all...