Massman Const. Co. v. Kansas City, 56394

• Decision Date: 13 November 1972
• Docket Number: No. 56394,No. 2,56394,2
• Parties: MASSMAN CONSTRUCTION CO., Respondent, v. KANSAS CITY, Missouri, Appellant
• Court: Missouri Supreme Court

Page 470

487 S.W.2d 470

MASSMAN CONSTRUCTION CO., Respondent, v. KANSAS CITY, Missouri, Appellant.

No. 56394.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1972.

Motion for Rehearing or Transfer to Court En Banc Denied

Dec. 11, 1972.

Miller & O'Laughlin, R. W. Miller, George T. O'Laughlin, Kansas City, for respondent.

Aaron A. Wilson, City Counselor, Charles A. Lewis, Robert A. Dakopolos, Assoc. City Counselors, Kansas City, for appellant.

STOCKARD, Commissioner.

Kansas City, Missouri, (hereafter referred to as 'Kansas City' or the 'City') entered into a contract with Massman Construction Company (hereafter referred to as 'Massman') for the remodeling of the Twelfth Street viaduct. After the completion of the work, Massman brought suit against Kansas City in five counts. In Count I Massman alleged a breach of the contract by Kansas City; Count II was based on an alleged willful misrepresentation in the bid plans and specifications; Count III was dismissed before trial; by Count IV Massman sought the recovery of an amount of the contract price withheld by Kansas City; and Count V pertained to an alleged oral agreement by which Kansas City was to reimburse Massman for the settlement of another lawsuit. Kansas City filed a counterclaim for liquidated damages based on the alleged failure of Massman to complete the work within the specified time.

The trial court entered judgment (a) in favor of Massman on Count I in the amount of $536,070 with interest thereon from April 20, 1966 to date of the judgment; (b) in favor of Massman on Count II in the same amount, but specifying that said judgment was in the alternative to the judgment on Count I and not in addition thereto; (c) in favor of Massman on Count IV in the amount of $10,669.01 with interest from January 1, 1967, to date of judgment; (3) in favor of Kansas City on Count V; and (e) in favor of Massman on the counterclaim. Kansas City only has appealed, and by its points in its brief it has limited the issues on appeal to those arising out of the judgment entered on Counts I and II and the counterclaim.

Massman, as respondent, filed a motion to dismiss this appeal for failure of Kansas City, as appellant, to comply with the requirements of Civil Rule 83.05(c) and (e) pertaining to the statement in an appellant's brief of facts and points relied on. The motion is not without considerable merit. However, in a liberal exercise of discretion the motion is overruled.

The transcript in this case is voluminous; consisting of more than 2,700 pages and 334 exhibits. The evidence will be related only to the minimum extent necessary to set forth understandingly the issues on appeal.

The contract was for extensive repairs to the Twelfth Street viaduct, a two deck structure, the basic construction of which was concrete with reinforcing steel. In 1964 the City employed the engineering firm of Howard, Needles, Tammen and Bergendorf (hereafter referred to as 'Howard Needles') to make a study of its physical condition so the City could determine whether the viaduct should be replaced or rehabilitated. The City elected to rehabilitate the viaduct, and it entered into a contract with Howard Needles to design and prepare the plans and specifications for the work. The ordinance approving the contract provided that the plans and specifications should be in 'general compliance' with the report of the study, and it also provided that Howard Needles should 'make all additional field surveys and physical checks of the existing structure as necessary,' and also to 'prepare any supplemental design plans made necessary by conditions uncovered in the reconstruction operation.'

The plans and specifications, as prepared by Howard Needles, were provided to prospective bidders on January 15, 1965, and the bids were received on February 5, 1965. A contract between the City and Massman was entered into in which it was expressly provided that the plans and specifications were incorporated as a part thereof.

Appellant contends in its brief that (a) there 'was no substantive, competent, probative, admissible evidence adduced to establish and prove that (Massman) performed 'extra work' outside the nature and scope of the contract provisions,' (b) Massman's "lump sum' bid of $418,000 for the removal of all deteriorated and unsound concrete bars (its) claims for removal expenses incurred in addition to or in excess of this bid amount and therefore (Massman) failed to make a submissible, prima facie case of (the City's) breach of contract for failing to compensate (Massman) over and above the $418,000 lump sum contract price for all removals,' and (c) there was no evidence of a written contract between the City and Massman for 'extra work' not included 'in contract Ord. No. 30915,' and therefore the City was not liable by reason of constitutional and statutory provisions requiring contracts with Kansas City to be in writing.

We shall first mention that this is a case tried before the court without a jury, and therefore the issue of 'a submissible prima facie case' is not before us. Also we have some difficulty in determining from appellant's brief the factual issues pertaining to the work done which constitute the basis for the judgment in favor of Massman on Count I. In its brief Massman has broken down the specific claims under Count I into eleven categories. The City has not filed a reply brief and has not challenged the factual basis therein set forth. In our statement of the basis for the judgment on Count I we shall fellow substantially the facts set forth in Massman's brief, but supplemented when appropriate with additional facts.

A. Upper Deck Cross Girder Tops. This is the largest claim in Count I. The roadway on the viaduct was of concrete with reinforcing steel and was covered with asphalt. The deck was supported by cross girders approximately 6 1/2 feet apart which were tied into and supported by longitudinal girders, which in turn were supported by columns. The bid plans called for the removal of the old deck between the cross girders, and that part of the deck which rested on top of the cross girders was shown to be of sound concrete and not to be removed, except that certain designated cross girders were to be completely removed and rebuilt. The design for the new deck called for the new layer of concrete to rest on the six inches of concrete to be left on the unremoved cross girders, thus resulting in the top of the new deck being approximately six inches higher than the top of the old deck. The only work called for on the top of the unremoved cross girders was an operation known as 'bush hammering,' which roughened the surface to cause a better bond between the new concrete and the top of the old deck. When Massman removed the deck between the cross girders it was discovered that the concrete on the cross girders was so highly deteriorated that the work called for by the plans could not be performed on any cross girder in the upper deck. The City's engineers did not prepare a new set of plans pertaining to these newly discovered conditions. Instead, they ordered Massman to use 15-pound chipping hammers to chip off the deteriorated concrete on the top of the cross girders. Massman protested, and it also requested extensions of time for completing the project made necessary by this extra work. These requests were denied. However, the City acknowledged that the work was done, and it recognized that Massman should be paid, but only for the amount of $19,100 based on the unit price for the additional amount of concrete that was required. Massman contends it was entitled to the sum of.$505,153 for this work.

B. Columns and Piers. The plans and specifications provided that certain columns were to be removed to designated elevations and replaced. In the course of the work, it was discovered that the deterioration of the concrete required that a number of columns had to be removed below and beyond the elevations shown on the plans. Additional plans and specifications were not prepared by the City's engineers, but Massman was required to perform the work to the extent determined by the engineers as the removal of concrete progressed. There is no dispute that work beyond the elevations shown on the plans was performed, and there is no dispute as to the quantity of the additional work. Massman contends it was entitled to more than $12,000 for this work.

C. Methods of Doing Work. Pursuant to the contract, Massman had the right to perform the work by such methods it selected. Massman contended in Count I that it was required by the City's engineers to use certain methods of removing deteriorated concrete which increased substantially the cost. However, this additional cost was included in the computation of the two previous claims designated A and B. Since, for reasons subsequently set forth, we affirm the judgment as to those claims, we need not examine further this claim.

D. Changes--Bid Plans to Construction Plans. Massman's bid was based on the work to be done as shown on the bid plans and specifications. After the contract was executed, the City issued to Massman a different set of plans called 'Construction Plans' which contained over 600 changes, most of which were minor but some of which were substantial and resulted in an increase in cost claimed by Massman to be $25,045.47.

E. Extra Cantilever Brackets. The plans called for the removal and replacement of nine cantilever brackets on the upper deck. During the construction the City's engineers required Massman to remove and replace an additional 57 cantilever brackets which were not designated on the bid or construction plans. Massman contends the cost of removing and replacing these extra cantilever brackets was $21,664.44. Although the City agreed that this was extra work, it paid Massman only on a unit price for the volume of concrete poured for the additional brackets.

F. Extra Forming--Deck and Cross...