Massman Construction Co. v. MO Highway Commission

• Decision Date: 29 August 2000
• Citation: 31 S.W.3d 109
• Parties: (Mo.App. W.D. 2000) . Massman Construction Company, Respondent v. Missouri Highway and Transportation Commission, Appellant WD57228 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

31 S.W.3d 109 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Massman Construction Company, Respondent v. Missouri Highway and Transportation Commission, Appellant

WD57228

Missouri Court of Appeals Western District

Handdown Date: 08/29/2000

Appeal From: Circuit Court of Boone County, Hon. Gene Hamilton

Counsel for Appellant: John W. Koenig, Jr.

Counsel for Respondent: R.W. Miller

Opinion Summary: Massman Construction Company sued the Missouri Highways and Transportation Commission for breach of warranty ex contractu for the substructure work it did on a bridge across the Missouri River. The circuit court entered judgment on a jury's verdict for Massman in the amount of $850,000 plus prejudgment interest. The commission appeals, asserting that the circuit court erred when it denied its motion for judgment notwithstanding the verdict because, as a matter of law, Massman could not satisfy the requirements for a breach of warranty ex contractu cause of action.

AFFIRMED.

Division holds:

(1) The doctrine of the law of the case does not prevent this Court from considering whether, as a matter of law, Massman could not satisfy the requirements for a breach of warranty ex contractu. In previous cases, this Court did not determine or address whether, as a matter of law, Massman's knowledge prevented Massman from satisfying the requirements for a breach of warranty ex contractu.

(2) Nothing in the record establishes, as a matter of law, that Massman had knowledge that the rock revetment would interfere with the bridge's construction at Pier 6. Although the commission established that Massman put the rock revetment in the river in 1979, reasonable minds could differ as to whether Massman knew that the revetment would interfere with construction of Pier 6 of the bridge. Massman presented sufficient evidence for the jury to conclude that Massman did not know that the rock revetment would interfere with construction of Pier 6. Given the evidence, the circuit court did not err in denying the commission's motion for judgment notwithstanding the evidence.

Opinion Author: Paul M. Spinden, Chief Judge

Opinion Vote: AFFIRMED. Breckenridge and Newton, JJ, concur.

Opinion:

Massman Construction Company sued the Missouri Highways and Transportation Commission for breach of warranty ex contractu for the substructure work it did on a bridge across the Missouri River. The circuit court entered judgment on a jury's verdict for Massman in the amount of $850,000 plus prejudgment interest. The commission appeals, asserting that the circuit court erred when it denied its motion for judgment notwithstanding the verdict because, as a matter of law, Massman could not satisfy the requirements for a breach of warranty ex contractu cause of action. We affirm.

In 1983, Massman entered into a contract with the commission to do substructure work for a bridge over the Missouri River on U.S. 40 and U.S. 61 near St. Charles and Chesterfield. Before Massman began construction, Massman and the commission discovered that a rock revetment, which was not shown on the commission's project plan, would interfere with the placement of one of the bridge's piers. The commission told Massman to remove it. Massman sued the commission for a breach of warranty ex contractu and sought damages arising from its having to remove the rock revetment from the river.

This dispute between Massman and the commission has been ongoing since 1988 and has resulted in three trials and four appeals. In the first trial, the circuit court granted summary judgment to Massman on the issue of liability only and ordered the parties to try the issue of damages only to a jury. The jury awarded Massman $1,922,821.28. The commission appealed, and this court reversed. We ruled that, because the commission had evidence that Massman knew that the revetment was at the site before construction--Massman had put it there pursuant to a contract with the U.S. Army Corps of Engineers in 1979--the circuit court erroneously granted summary judgment. We concluded that the circuit court should have permitted the jury to hear the commission's evidence. Massman Construction Company v. Missouri Highway and Transportation Commission, 835 S.W.2d 465 (Mo. App. 1992) (Massman I).

The circuit court held a second trial. That jury, after hearing the additional evidence, returned a verdict of only $250,000 for Massman. Massman asked the circuit court to increase the jury's award to $1,922,821.28, the amount of the jury verdict in the first trial. The circuit court did not increase the jury award but found that the jury's award was inadequate and ordered a new trial on damages only. The commission appealed, and the Supreme Court transferred the case to that court. The Supreme Court reversed the circuit court's order granting a new trial and remanded the case so the circuit court could enter a proper response to Massman's motion for additur. The Supreme Court said, "To overrule the motion for additur and at the same time grant a new trial when no new trial was sought was reversible error." Massman Construction Company v. Missouri Highway and Transportation Commission, 914 S.W.2d 801, 804 (Mo. banc 1996) (Massman II).

On remand, the circuit court entered an order increasing the jury verdict from $250,000 to $750,000, but it gave the commission the option of accepting the increased verdict or having a new trial on the issue of damages only. The commission again appealed to this court, and we reversed and remanded with instructions that the circuit court offer the commission the choice of accepting the $750,000 award to Massman or retrying the case on all issues. Massman Construction Company v. Missouri Highway and Transportation Commission, 948 S.W.2d 631 (Mo. App. 1997) (Massman III).

On remand, the commission chose a new trial on all issues. This trial resulted in a judgment for Massman in the amount of $850,000 plus interest, and the commission appeals this judgment. It claims that the circuit court erred when it denied its motion for judgment notwithstanding the verdict because, as a matter of law, Massman could not satisfy the requirements for a breach of warranty ex contractu cause of action.

In reviewing the circuit court's denial of the commission's motion for judgment notwithstanding the verdict, we must determine whether Massman made a submissible case. Seitz v. Lemay Bank and Trust Company, 959 S.W.2d 458, 461 (Mo. banc 1998). In doing so, we review the evidence and all reasonable inferences in the light most favorable to the jury's verdict and disregard contrary evidence. Id. "[We] will reverse the jury's verdict for insufficient evidence only where there is a 'complete absence of probative fact' to support the jury's conclusion." Id. (citation omitted). When reasonable minds can differ on a question put to a jury, the court may not disturb the jury's verdict. Uptergrove v. Housing Authority of City of Lawson, 935 S.W.2d 649, 652 (Mo. App. 1996).

Before a contractor can recover against a governmental entity for breach of warranty ex contractu, the evidence must establish that the governmental entity made a positive representation of material fact that was false and that the contractor lacked knowledge of the falsity and relied on and sustained damages as a direct result of the governmental entity's positive representation of material fact. Ideker, Inc. v. Missouri State Highway...