Huskey v. Queen City Roofing & Contracting Co.

• Decision Date: 08 August 2017
• Docket Number: SD 34682,No. SD 34666,SD 34666
• Citation: Huskey v. Queen City Roofing & Contracting Co., 523 S.W.3d 610 (Mo. App. 2017)
• Court: Missouri Court of Appeals
• Parties: David Wayne HUSKEY, Plaintiff-Appellant/Respondent, v. QUEEN CITY ROOFING & CONTRACTING CO., Defendant-Respondent/Cross-Appellant.

523 S.W.3d 610

David Wayne HUSKEY, Plaintiff-Appellant/Respondent,

v.QUEEN CITY ROOFING & CONTRACTING CO., Defendant-Respondent/Cross-Appellant.

No. SD 34666

SD 34682

Missouri Court of Appeals, Southern District, Division One.

Filed: Aug. 8, 2017

TODD C. WERTS, Columbia, MO, for Appellant/Respondent.

PAULA S. GREEN, Springfield, MO, and RICHARD B. MALTBY, Gainesville, FL, for Respondent/Cross-Appellant.

DON E. BURRELL, J.

David Wayne Huskey ("Workman") appeals a summary judgment ("the judgment") granted in favor of Queen City Roofing & Contracting Company ("Contractor") on Count 3 of Workman's first amended petition ("the petition").¹ The petition claims that Contractor wrongly failed to pay Workman the prevailing wage on public projects he worked on in 2011 and 2012.² See sections 290.210 to 290.340, commonly known as the Missouri Prevailing Wage Act ("the Act").³ Bonney v. Environmental Eng'g, Inc., 224 S.W.3d 109, 112-13 (Mo. App. S.D. 2007).

Workman's first two points claim the trial court erred in granting summary judgment because: (1) material questions of fact existed "in that there is competent evidence in the record" supporting the proposition "that [Contractor] should not get the full credit that it claims towards its prevailing wage obligations" ("PWO") based upon contributions it made to a benefit fund established by Contractor; and (2) the trial "[c]ourt relied on letters from the Missouri Division of Labor Standards [ ("DLS") ] declining to take action against [Contractor as] those letter[s] are not competent evidence."

Workman's final point contends that sustaining Contractor's objections to "several paragraphs" in Workman's statement of additional uncontroverted material facts ("the SAUMF") was error because the additional paragraphs "were relevant to the issues in this case and Rule 74.04(c)(2) does not strictly prohibit including more than one evidentiary fact within a single ‘numbered paragraph.’ "

Finding Workman's first point both meritorious and dispositive, we reverse the judgment and have no need to consider his other points.

Preliminary Issue—Finality of the Judgment

Generally, "[a] final judgment is a prerequisite to appellate review[,]" Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012), and "[t]he grant of a summary judgment is a final, appealable judgment when it disposes of all of the parties and issues." State ex rel. St. Charles Cty. v. Cunningham, 401 S.W.3d 493, 496 (Mo. banc 2013). Because the petition included three counts, and Contractor's motion was for a partial summary judgment only as to Count 3, we ordered Plaintiff to show cause "why the appeal herein should not be dismissed as an appeal that is not taken from a final judgment."

After the trial court granted Contractor's motion for partial summary judgment, Workman filed a notice of "his dismissal without prejudice, of Counts [1], [2], and his Class Action Allegations" ("the dismissal notice"). In a case not tried to a jury, a plaintiff's dismissal "without order of the court" must occur "prior to the introduction of evidence at the trial." Rule 67.02(a)(2). Cf. Cunningham , 401 S.W.3d at 496 (where the plaintiff was not permitted to dismiss its lawsuit after "[t]he disputed issues between [the parties] were litigated fully through summary judgment"). "For purposes of the voluntary dismissal rule under Rule 67.02, a ‘hearing on a motion for summary judgment is a trial before the court without a jury.’ " Id. (quotation omitted).

In Cunningham, the plaintiff's motion to dismiss the case came after an appellate court reversal of a summary judgment in the plaintiff's favor, which prompted a concern on the part of our high court that the dismissal might negate what would otherwise have been resolved as the law of the case.⁴ Id. at 495, 497.

Workman's brief correctly distinguishes Cunningham, and Contractor concurs with Workman's argument that he "was authorized under Rule 67.02 to dismiss the counts of his petition not at issue in the trial court's summary judgment ruling[,]" and his dismissal "converted that ruling to a final judgment from which an appeal may lie." Because Contractor's motion for partial summary judgment did not seek judgment beyond a resolution of Count 3, it cannot be said that a trial had occurred on counts 1 and 2 for purposes of Rule 67.02(a)(2). We therefore agree that Workman was permitted to dismiss counts 1 and 2 under Rule 67.02(a), and the partial summary judgment (hereinafter referred to as "the summary judgment") then became a final judgment "because no other claims or parties remain[ed] pending." Stewart v. Liberty Mut. Fire Ins. Co., 349 S.W.3d 381, 384-85 (Mo. App. W.D. 2011). Having satisfied ourselves that we have appellate jurisdiction, we now proceed to a substantive analysis of Workman's appeal.

Applicable Principles of Review and Governing Law

"The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court's determination and reviews the grant of summary judgment de novo. " Goerlitz v. City of Maryville, 333 S.W.3d 450, 452 (Mo. banc 2011). We view the summary judgment record in the light most favorable to Workman, the party against whom the judgment was entered. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376, 382 (Mo. banc 1993). "A summary judgment can only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." McLallen v. Tillman, 386 S.W.3d 837, 839 (Mo. App. S.D. 2012).

It is

the policy of the state of Missouri that a wage of no less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed shall be paid to all workmen employed by or on behalf of any public body engaged in public works exclusive of maintenance work.

Section 290.220. "The public body awarding the contract shall cause to be inserted in the contract a stipulation to the effect that not less than the prevailing hourly rate of wages shall be paid to all workmen performing work under the contract." Section 290.250.1, RSMo 2016. "Any workman employed by the contractor ... who shall be paid for his services in a sum less than the stipulated rates for work done under the contract, shall have a right of action [.]" Section 290.300.

At the time of Workman's employment by Contractor, section 290.210(5) provided:⁵

"Prevailing hourly rate of wages" means the wages paid generally, in the locality in which the public works is being performed, to workmen engaged in work of a similar character including the basic hourly rate of pay and the amount of the rate of contributions irrevocably made by a contractor or subcontractor to a trustee or to a third person pursuant to a fund, plan or program, and the amount of the rate of costs to the contractor or subcontractor which may be reasonably anticipated in providing benefits to workmen and mechanics pursuant to an enforceable commitment to carry out a financially responsible plan or program which was communicated in writing to the workmen affected, for medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, for unemployment benefits, life insurance, disability and sickness insurance, accident insurance, for vacation and holiday pay, for defraying costs of apprenticeship or other similar programs, or for other bona fide fringe benefits, but only where the contractor or subcontractor is not required by other federal or state law to provide any of the benefits; provided, that the obligation of a contractor or subcontractor to make payment in accordance with the prevailing wage determinations of the department, insofar as sections 290.210 to 290.340 are concerned, may be discharged by the making of payments in cash, by the making of irrevocable contributions to trustees or third persons as provided herein, by the assumption of an enforceable commitment to bear the costs of a plan or program as provided herein, or any combination thereof, where the aggregate of such payments, contributions and costs is not less than the rate of pay plus the other amounts as provided herein.

Section 290.210(5); see also section 290.210(2) (which identifies the referenced "department" as the Department of Labor and Industrial Relations).

The Relevant Undisputed Material Facts

Count 3 of the petition claims, inter alia , that Contractor's "cash payment rate was not sufficient to meet the prevailing wage requirement" for Workman on particular jobs listed as "Prevailing Wage Work." Contractor's answer denied these allegations. The petition went on to claim that even if contributions made by Contractor to an entity known as "Queen City Roofing & Contracting Co. Voluntary Employee Beneficiary Association, Inc." ("VEBA") were

equal to the difference between the required prevailing wage rate and the hourly cash rate actually paid to the employees, [Contractor] is in violation of the prevailing wage law because the payments to [VEBA] do not qualify as a bona fide fringe benefit, and therefore cannot be used by [Contractor] to claim it paid the required prevailing wage.

Contractor's answer denied these allegations.

Contractor's motion for summary judgment and "STATEMENT OF UNCONTROVERTED MATERIAL FACTS " was filed in October 2015.⁶ After the parties finished their responses and additions as permitted by Rule 74.04, and the trial court had ruled various objections and permitted Contractor to respond where its objections had been denied, the following became the relevant undisputed material facts ("SUMF") upon which the trial court could base a summary judgment.⁷

Contractor "is a construction company specializing in roofing and sheet metal installation and service[,]" and its "workforce is divided into three departments: roofing, sheet metal,...