Essex Contracting, Inc. v. City of DeSoto, s. 55010
| Decision Date | 13 June 1989 |
| Docket Number | 55702 and 56091,Nos. 55010,s. 55010 |
| Parties | 119 Lab.Cas. P 56,709 ESSEX CONTRACTING, INC., Plaintiff-Respondent, v. CITY OF DESOTO, Defendant-Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS OF the STATE of MISSOURI, and Department of Natural Resources of the State of Missouri, Third-Party Defendants-Appellants, and Federal Insurance Company, Defendant on Counterclaim. |
| Court | Missouri Court of Appeals |
Weier, Hockensmith & Sherby, Dana Hockensmith and Kurt A. Hentz, St. Louis, for Essex.
Wegman, Gasaway, Stewart, Schneider, Dickhaner, Tesreau & Stoll, Mark Thomas Stoll, Hillsboro, for City of DeSoto.
William Webster, Atty. Gen., Mark S. Siedlik, Asst. Atty. Gen., Jefferson City, for Departments.
Consolidated appeals of City of DeSoto [City] and two State of Missouri government departments follow summary judgment in favor of plaintiff, Essex Contracting, Inc. [Essex], against defendant City and judgment over in favor of defendant City, against third-party defendants, Department of Labor and Industrial Relations of the State of Missouri [Department of Labor] and Department of Natural Resources of the State of Missouri [DNR].
The trial court entered a money judgment on May 23, 1988, in the amount of $34,683.93 plus interest at the legal rate from June 4, 1987. At the time judgment was entered for Essex on its claim for charges due to it as general contractor on a construction contract, there was pending a counterclaim filed by City regarding unrelated provisions of the contract. On September 27, 1988, the trial court made an express finding there was no reasonable excuse for delay and found both May 23, 1988, judgments final and appealable. Defendant City appealed from the judgment to this court. Third-party defendants filed an appeal with the Supreme Court of Missouri because the petition for declaratory judgment and other relief included a challenge to the constitutionality of the application of §§ 290.210-290.340 RSMo 1986. The Supreme Court ordered its case transferred to this court "which has jurisdiction over the appeal."
On June 12, 1987, Essex filed a petition for declaratory judgment and other relief. The aim of the suit was to obtain final payment under a July 5, 1985, contract wherein Essex agreed to construct a waste water treatment system for City. Specifically, it claimed $34,683.93 due and owing for work performed on the project in installing ductile iron piping within the waste water treatment facility. Essex utilized laborers who were members of Laborers District Council in installing the pipe and not members of Pipefitters Local Union No. 562. It paid laborers', not pipefitters', wages for their work. The work was completed and certified by City's engineer. City and third-party defendants never contested that the work was performed in a good and workman-like manner. City requested payment to Essex from DNR, but DNR denied the request at the direction of the Department of Labor.
Funds for construction of the waste water treatment system were supplied by federal and state grants. There is an "echo" that City also contributed fifteen percent of the cost. DNR was the grant administrator for a federal EPA waste water construction grant to City pursuant to the Clean Water Act of 1977, Pub.L. No. 95-217, 91 Stat. 1566 (1977), as amended, and under a delegation agreement between the EPA and DNR effective October 17, 1984, as amended June 24, 1985. DNR is also the administrator for a State of Missouri grant to City for sewage treatment works. DNR controlled all the funds for the project, both federal and state. City did not possess, nor control, any funds for payment for services and materials provided under contract with Essex, the general contractor.
Essex was obligated by the contract to comply with the Missouri Prevailing Wages on Public Works Law, §§ 290.210-290.340 RSMo 1978. Section 290.230.1 requires payment of "[n]ot less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed...." Section 290.230.1 RSMo 1978. Section 290.290.1 mandates Essex "keep full and accurate records clearly indicating the names, occupations and crafts of every workman employed by [it] in connection with the public work together with an accurate record of the number of hours worked by each workman and the actual wages paid therefor." Section 290.290.1 RSMo 1978. The statute does not require contractors and subcontractors to maintain records as to the work performed by each employee or craft. Accordingly, there was no record of the number of hours laborers worked while installing ductile iron pipe.
Sometime in 1986, representatives of Pipefitters Local Union No. 562 contacted the Department of Labor and complained that installation of ductile iron piping should have been performed by members of the Pipefitters Local. The position of the Pipefitters Local in this court is that plaintiff Essex was contractually and legally obligated to pay the workers who performed the work at the pipefitters' rate of pay, whether the work was done by members of the Laborers Council or Pipefitters Union. The Department of Labor adopted that position.
The Department of Labor reviewed payroll records of Essex for the period September 14, 1985, through August 16, 1986. It found that laborers worked 6,071.5 regular hours and 286 overtime hours during that period. These workmen were paid equal to or more than the required prevailing hourly laborers' rates for all hours they performed laborers' duties. The Department of Labor could not determine from the records the number of laborers or the number of hours laborers worked to complete the installation of process piping. However, by letter of February 6, 1987, the Department of Labor notified Essex of these facts [total hours laborers worked and payment at laborers' rates] and "concluded [it estimated] that 80% of all laborers [during the estimated installation period] were performing the [process piping] function." It then determined that Essex had underpaid laborers $3.85 for regular hours and $5.33 for overtime based upon its conclusion that the installation of processed piping in Jefferson County required pipefitters' wages. Accordingly, by this letter the Department of Labor informed Essex that $26,270 would be withheld from final payment under the contract.
On April 9, 1987, the Department of Labor sent a letter to City setting forth the same information as previously presented to Essex. In addition, the Department of Labor notified City that § 290.250 requires, among other things, that:
The contractor shall forfeit as a penalty to the state, county, city and county, city, town, district or other political subdivision on whose behalf the contract is made or awarded ten dollars for each workman employed, for each calendar day, or portion thereof, such workman is paid less than the said stipulated rates for any work done under said contract.... Section 290.250 RSMo 1978.
On the authority of this section and its determination that Essex failed to provide proper wages to its employees on 842 occasions, a penalty of $8,420 was announced. The underpayment of wages, as determined by the Department of Labor, when added to the penalty, created a total of $34,683.93. The Department of Labor directed this sum be withheld from the final payment due Essex. This lawsuit was filed to request a declaration there was no violation of the Prevailing Wages Law and for judgment for the balance due. The trial court made no express declaration of compliance. The money judgment implies such finding. The issue is whether that finding is supported by summary judgment facts.
City's position, alleged in a third-party petition against the Department of Labor and the DNR, is that if it owes Essex then the grant administrator owes it a like amount. City does not dispute the claim made by Essex that Essex performed the work on the process piping according to the plans and specifications. Nor does City dispute the fact that Essex is entitled to be paid for the work unless the objection raised by the Department of Labor and the DNR is valid.
When Essex filed suit against City it did not name the State of Missouri as a party. However, it did furnish a copy of the suit papers to the Attorney General's office. The Attorney General filed an entry of appearance on the authority of Rule 87.04 and was afforded an opportunity to oppose the motion for summary judgment on behalf of third-party defendants, the Department of Labor and the DNR.
Before addressing the merits presented by the appeal of City and the appeals of the departments, four jurisdictional questions must be resolved.
First, there is a question of finality of judgment for purposes of appeal. The trial court entered summary judgment on May 23, 1988. At that time there was a pending counterclaim filed by City against plaintiff Essex which was not involved in the motion for summary judgment and was not decided. The May 23, 1988, judgment did not comply with the requirements of Rule 74.01(b), effective January 1, 1988. The court did not expressly determine that there was no just reason for delay. Rule 74.01(b) requires such determination to qualify for an immediate appeal. Defendant City, therefore, filed a premature appeal from the judgment on June 20, 1988. The judgment of May 23, 1988, became final for purpose of appeal on September 27, 1988. On that day the court made an express determination that there was no just reason for delay in entering the judgments. It also found "the court's prior order of summary judgment [is] a judgment under Rule 74.01 for appeal." Essex then filed a new appeal of the judgment.
Second, our Supreme Court has determined that the original appeal by the ...
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