H.H. Robertson Co., Cupples Products Div. v. v. S. DiCarlo General Contractors, Inc.

• Decision Date: 10 December 1991
• Docket Number: 91-1431 and 91-1783,Nos. 91-1135,s. 91-1135
• Citation: 950 F.2d 572
• Parties: H.H. ROBERTSON COMPANY, CUPPLES PRODUCTS DIVISION, Appellee, v. V.S. DiCARLO GENERAL CONTRACTORS, INC., Appellant (Three Cases).
• Court: U.S. Court of Appeals — Eighth Circuit

Page 572

950 F.2d 572

H.H. ROBERTSON COMPANY, CUPPLES PRODUCTS DIVISION, Appellee, v. V.S. DiCARLO GENERAL CONTRACTORS, INC., Appellant (Three Cases).

Nos. 91-1135, 91-1431 and 91-1783.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1991.

Decided Dec. 10, 1991.

Mark G. Arnold, St. Louis, Mo., argued (Jeffrey J. Kalinowski and Catherine Hope Craig, on brief), for appellant.

Charles A. Weiss, St. Louis, Mo., argued (Thomas C. Walsh and Douglas W. King, on brief), for appellee.

Before McMILLIAN, Circuit Judge, and FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

WOLLMAN, Circuit Judge.

In this diversity case, H.H. Robertson, Cupples Products Division (Cupples), brought a contract action against V.S. DiCarlo General Contractors, Inc. (DiCarlo), and DiCarlo counterclaimed. A jury found for Cupples, and DiCarlo appeals. We affirm in part and reverse in part.

I.

DiCarlo was the general contractor for the construction of the Two Pershing Square office building in Kansas City, Missouri. DiCarlo constructed the concrete skeleton of the building and subcontracted with Cupples to install the exterior walls. On two quadrants of the building, Cupples agreed to install a glass curtain wall (glass affixed to an aluminum frame). On the other two quadrants, Cupples installed strip windows (glass and aluminum in strips between precast concrete panels).

The parties' contract required that Cupples commence work when notified by DiCarlo and "diligently prosecute the same in conformity with [DiCarlo's] progress schedule as updated." A rider accompanied the contract. It provided that Cupples would begin the layout of the work on January 27, 1986, and would begin erecting the curtain wall when DiCarlo had finished its work on five floors and had removed most of the wooden supports ("reshores") from those floors. The rider further provided that Cupples would substantially complete its work within twenty-eight weeks, with two conditions. First, at least three floors of precast work had to be ready within thirty days after Cupples began erecting the curtain wall. Second, DiCarlo had to make available to Cupples one additional floor every two weeks for curtain wall work. The rider's provisions were to apply "[n]otwithstanding anything contained in the Subcontract or otherwise, to the contrary."

Although construction was to be substantially completed by August 1986, the building was not finished on time. DiCarlo blamed Cupples and withheld the last progress payment due Cupples (the "contract retention amount"). Cupples sued for breach of contract and in quantum meruit, and DiCarlo counterclaimed for breach of contract.

According to DiCarlo, the twenty-eight week deadline began to run on January 27 1986, when Cupples began the layout work. At trial, DiCarlo presented evidence that Cupples did not enclose the building until October 1986 and did not render it watertight until December 1986. Thus, in DiCarlo's view, Cupples failed to perform according to the agreement.

Cupples, on the other hand, blamed DiCarlo's mismanagement for any delays. Cupples also claimed that it did not have to meet the twenty-eight week deadline because three floors of precast work were not ready within thirty days, as provided by the rider. Even if the twenty-eight week schedule did apply, and even if DiCarlo's actions did not excuse any delay, Cupples argued, it still met the schedule. According to Cupples, the clock began to run on March 5, 1986, when DiCarlo cleared the reshores from five floors. Cupples further maintained that its work was substantially completed by mid-September, within twenty-eight weeks of March 5, 1986.

In addition, Cupples contended it performed work which fell outside the scope of the contract. Cupples' evidence indicated that it had to help another subcontractor fix the layout lines for the precast panels so they would be installed properly. Cupples also introduced evidence that some of the panels had been installed incorrectly and that Cupples had to perform an elevation survey to determine where this had occurred. In addition, Cupples introduced evidence that DiCarlo's mismanagement of the project resulted in areas where Cupples could not install the walls in sequence as the work progressed. Cupples had to return to these areas later, which, it claimed, hampered its efficiency and contributed to delay.

The jury awarded Cupples $373,039.46 on its breach of contract claim and $25,664.94 on its quantum meruit claim and rejected DiCarlo's counterclaim. Although evidence of prejudgment interest had been submitted to the jury, the issue was withdrawn from its consideration and was instead left to the district court. In response to a post-trial motion, the district court awarded Cupples interest on both the breach of contract and quantum meruit awards. It computed the interest for the breach of contract award by considering only the contract retention amount due Cupples under the contract.

DiCarlo appeals, arguing that the district court should not have submitted the quantum meruit claim to the jury. DiCarlo also argues that the district court erroneously instructed the jury with regard to each claim and that it should not have awarded Cupples prejudgment interest.

II.

DiCarlo argues that the quantum meruit claim should not have been submitted to the jury. First, DiCarlo points out that under Missouri law a party may recover for quantum meruit, in addition to breach of contract, only where the quantum meruit claim is limited to work outside the scope of the contract. See Steinberg v. Fleischer, 706 S.W.2d 901 (Mo.App.1986); Husar Indus., Inc. v. A.L. Huber & Son, Inc., 674 S.W.2d 565 (Mo.App.1984); Kaiser v. Lyon Metal Products, Inc., 461 S.W.2d 893 (Mo.App.1970). DiCarlo maintains that since Cupples presented no evidence that any work it performed fell outside the scope of the contract, the district court should not have submitted this claim to the jury.

A claim may be submitted to a jury if, viewing the evidence in the light most favorable to the claimant, giving the claimant the benefit of all reasonable inferences, and disregarding the other party's evidence except as it aids the claimant's cause, there is substantial evidence to support it. Emerick v. Mut. Benefit Life Ins. Co., 756 S.W.2d 513, 518 (Mo.1988). If Cupples produced substantial evidence that any of the work it performed fell outside the scope of the contract, its quantum meruit claim was properly submitted to the jury.

The contract required that Cupples install the strip windows. Cupples was not responsible, however, for installing the precast panels between which the strip windows fit. Cupples produced evidence that it helped perform the layout work in preparation for installation of the precast panels, as well as a survey of the precast panels to indicate where they had been incorrectly installed. In addition, the rider to the contract required that Cupples "provide[ ] for one comeback to complete all leave out areas requested by [DiCarlo]." Witnesses for Cupples, however, testified that Cupples was forced to return on more than one occasion. We therefore conclude that there was sufficient evidence to justify submitting the quantum meruit claim for extra work to the jury. See Kaiser, 461 S.W.2d 893.

Second, DiCarlo maintains that the quantum meruit claim should not have gone to the jury because Cupples did not produce proper evidence of the reasonable value of its services. Under Missouri law, a claimant seeking recovery in quantum meruit bears the burden of proving the reasonable value of the services provided, and expert testimony is required to assist the trier of fact in determining what is reasonable. Baron v. Lerman, 719 S.W.2d 72 (Mo.App.1986).

A claimant may meet its burden of proving the reasonable value of its services with witnesses who have expertise in the subject matter and who have first hand knowledge of the services which the claimant rendered. See Richard B. Curnow, M.D., Inc. v. Sloan, 625 S.W.2d 605 (Mo.1981) (doctor's expertise sufficiently established by his professional experience and first hand knowledge, thus he was qualified to give testimony regarding the value of his own services); Williams Carver Co. v. Poos Bros., Inc., 778 S.W.2d 684 (Mo.App.1989) (employee's thirty-nine years' experience with refrigeration systems, plus first hand knowledge of the work plaintiff had performed, qualified him to testify as to the reasonable value of the plaintiff's services).

Cupples supported its quantum meruit claim with the testimony of its employees. Each employee was experienced in the curtain wall industry, and each was knowledgeable of the work Cupples performed at Two Pershing Square. As such, their testimony satisfied Cupples' burden of proving the reasonable value of its services.

III.

DiCarlo maintains that the district court improperly instructed the jury as to Cupples' breach of contract and quantum meruit claims, as well as to DiCarlo's counterclaim. A district court exercising its diversity jurisdiction need not "give the precise instruction set out" in the Missouri Approved Instructions. Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 904 (8th Cir.1985). The form of the instructions is a procedural matter governed by federal law, id., and the district court "has broad discretion to instruct the jury in the form and language it considers a fair and adequate presentation of substantive law." Grogan v. Garner, 806 F.2d 829, 836 (8th Cir.1986) (citation omitted). Moreover, "[t]he rule of this circuit is clear: jury instructions are sufficient if they state the governing law fairly when read as a whole, and considering each instruction in light of the whole." Bolin v. Black, 875 F.2d 1343, 1348 (8th Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 542, 107 L.Ed.2d 539 (1989). Accord Crues v. KFC Corp., 768 F.2d 230 (8th Cir.1985).

DiCarlo attacks the jury instruction for Cupples' breach...