Husar Industries, Inc. v. A.L. Huber & Son, Inc., WD

• Citation: 674 S.W.2d 565
• Decision Date: 22 May 1984
• Docket Number: No. WD,WD
• Court: Court of Appeal of Missouri (US)
• Parties: HUSAR INDUSTRIES, INC., Appellant, v. A.L. HUBER & SON, INC., Respondent. 34538.

Page 565

674 S.W.2d 565

HUSAR INDUSTRIES, INC., Appellant, v. A.L. HUBER & SON, INC., Respondent.

No. WD 34538.

Missouri Court of Appeals,

Western District.

May 22, 1984.

As Modified July 31, 1984.

Application to Transfer Denied

Sept. 11, 1984.

Michael W. Manners of Paden, Welch, Martin, Albano & Graeff, P.C., Independence and H. Kent Desselle of Desselle, White, Allinder & Grate, Independence, for appellant Husar Industries, Inc.

Larry E. Butcher, Cameron and Michael W. Thompson of Mitchell, Kristl & Lieber, Kansas City, for respondent A.L. Huber & Son, Inc.

Before LOWENSTEIN, P.J., and MANFORD and BERREY, JJ.

MANFORD, Judge.

This civil action seeks recovery of monies arising from the construction of a building. The judgment is affirmed.

Before setting forth the pertinent facts and the charged errors, it is necessary, for purposes of clarity, to identify the respective parties, plus to briefly outline the manner in which this case developed procedurally.

This case commenced as an action to enforce a mechanic's lien by Manuel Morris, the original architect, against Nick Husar, Husar Industries, Inc., Goppert Bank (mortgagee), and The Land Clearance for Redevelopment Authority of Kansas City, landowner. A.L. Huber & Son, Inc. subsequently secured leave to become a party defendant. Huber then cross-claimed against all other parties, claiming a mechanic's lien and asking for enforcement of its alleged lien against the property. In addition, Huber sought recovery against Husar in two separate claims of an account and quantum meruit. By amended answer, Husar then filed a counterclaim against Morris for design defects in the building and cross-claimed against Huber for failing to construct the building in a workmanlike manner in accordance with the contract between Husar and Huber.

Just prior to trial, Morris and Husar settled the claims between them. At the same time, the trial court ordered a separate trial on the mechanic's lien claim of Huber. This case then became a matter of the contract claims and the quantum meruit claim as between Huber and Husar. In addition, just prior to trial, Husar, as an individual, was dismissed by the trial court.

With all of the foregoing changes and developments, and after a conference with and the agreement of counsel for the remaining parties, the trial court realigned the parties. As a result of the trial court's action, A.L. Huber & Son, Inc. (hereinafter Huber) became plaintiff and Husar Industries, Inc. (hereinafter Husar) became defendant. The case was finally tried, and on November 22, 1982, the jury entered its verdict for Huber on its Count I (account) in the sum of $5,193.52 and on its Count II (quantum meruit) in the sum of $23,287.67. On the same date, the trial court entered judgment and added interest, bringing the judgment amount on Count I to $6,864.44 and as to Count II, $30,782.20.

Huber filed an appeal, which was dismissed. Husar filed an appeal. Huber then filed a motion to reinstate its appeal. Huber then filed a cross appeal. The two cases on appeal were consolidated under the present case number. To prevent any more confusion relative to the party designation and description, this appeal will simply refer to the parties as Huber and Husar and in light of the judgment having been entered against Husar, this court will, for purposes of the disposition of this appeal, approach the points of alleged error presented by Husar as if he was the only appellant in the proceedings. This approach permits full discussion and consideration of all the issues between the parties on this appeal, including Huber's cross appeal.

The record discloses the following pertinent facts.

Huber is a general contractor. Husar is an automobile automatic transmission repair business. Both parties are closely held corporations in good standing. In 1976, Husar decided to expand its transmission repair business. This expansion included the erection of a new building. Husar decided upon property at 1620 Troost, Kansas City, Missouri as the location. This particular location was within an area under urban renewal, and as a result, Husar was able to secure favorable financing. After securing financing, Husar contacted Manuel Morris and hired Morris as the architect. Morris then drew the building plans. Husar then contacted various contractors for bids. Following several discussions with Husar and Morris, which included consideration of building specifications, Huber was selected as the contractor. On February 6, 1978, Husar and Huber entered into a written contract for the construction of the building.

The contract was a form contract prepared by the American Institute of Architects and called a "Standard Form of Agreement Between Owner and Contractor." It is also referred to as "A.I.A. 101." The contract called for Huber to construct the building and for Husar to pay the sum of $328,597.00 therefor. In addition, the base contract incorporated other documents as a part thereto. These other documents included A.I.A. A201, which provided for General Conditions of the Contract for Construction, final building plans, and specifications. Huber was to build a "shell" type building, and Husar was to finish most of the interior. The building encompassed some 31,000 square feet. Husar was to use the building for storage of transmissions and machinery related to the service and rebuilding of transmissions. Husar had from 1,500 to 2,000 transmissions on hand at any one point in time, and it was contemplated that these would be stored on racks along the interior walls.

Husar testified that he had disclosed to Huber and Morris the intended use of the building. Huber testified that he did not know of the intended use. Morris had previously stated that Husar was very secretive about the building's use.

The contract provided for periodic payments as the work progressed. Payments were made conditional upon approval of the work by the architect. The contract further provided at the point of "substantial completion", 90% of the contract price was due the contractor, and that within 30 days thereafter, the remainder of the contract price was to be paid "provided the work has been completed, the Contract fully performed, and a final Certificate for payment has been issued by the Architect."

Huber commenced work on May 31, 1978. The location was cleared of surface trees and debris in preparation of excavation for the foundation. As the excavation proceeded, buried debris consisting of foundations of old buildings, bottles, cinders, and other matter was encountered. This debris was the buried remainder of buildings which had been previously razed by the urban renewal program. It had to be removed in order that excavation and preparation of the building foundation could proceed. The removal and the attending cost are the basis of Huber's quantum meruit claim, and a more detailed discussion of the facts relative thereto are disclosed infra.

Huber completed the excavation, and concrete footings were poured in July and August, 1978. The building designed called for the installation of pre-cast concrete "T" panels to be installed in "slots" designed into the top of the concrete footings. The "T" panels formed the walls of the building. The "T" panels were to be manufactured by the Wilson Company, but Wilson could not meet its commitment, so Huber secured "T" panels from the Omega Company. The "T" panels were shipped to the location, and they were found to be larger than the Wilson panels. In order to accommodate the Omega panels, the slots in the footings had to be enlarged. Additional excavation was also required. The slots were enlarged by sawing them with a concrete saw. Some of the panels had to be "pounded" by sledge hammer into place.

In late July, 1978, the architect Morris quit the project. Husar appointed a successor architect, John Hueser, eighteen days later. Hueser left the job in November, 1978.

The "T" panels were installed, the interior and exterior areas backfilled, and the roof was added. This was followed by the pouring of the concrete floor and the exterior asphalt drive and parking lot areas.

Huber left the job in December, 1978. Huber later testified that it did not know of any deficiencies in the job and that when it left the job, it was substantially complete. There followed a dispute relative to payment claimed due, the completeness and quality of work, and the payment for extra work claimed due Huber.

The record shows that at trial, Husar had paid Huber the sum of $285,314.29. In turn, Husar had been credited, for various physical items (doors, steps, etc.) plus a tax credit, ¹ the sum of $10,300.19. There is no dispute between the parties over these payments and credits. Allowing for payments and the credits, the balance claimed due was $32,982.52. It was Husar's position that none of the balance claimed was due because of deficiencies in Huber's workmanship.

In addition to the balance claimed due under the contract, Huber claimed $20,165.76 as costs for extra work in the excavation, $553.00 for providing builders risk insurance, and $2,568.91 for extending the south parking lot.

In support of its claims, Huber testified that the building was ultimately moved ten feet west of its original location. ² This caused the original 12-foot "grassy strip" on the west side to be reduced to two feet. Huber claimed that with this change, Husar requested that this two-feet area be covered with concrete. Huber also claimed that Husar requested that the south parking lot be extended south and that a concrete sidewalk be added to the north edge of the south parking lot. Husar denied that he requested such changes and further stated that he had concerns that the south lot was too steep for trucks to back into the south loading dock. Huber testified that he provided Husar an estimate of $6,000 for the above changes and that Husar agreed to that price. It was Husar's testimony...