Newell Mach. Co. v. Pro Circuit, Inc.

• Citation: 596 S.W.3d 635
• Decision Date: 25 February 2020
• Docket Number: WD 82327,C/w WD 82364
• Parties: NEWELL MACHINERY CO., INC., Appellant-Respondent, v. PRO CIRCUIT, INC., Respondent-Appellant.
• Court: Court of Appeal of Missouri (US)

596 S.W.3d 635

NEWELL MACHINERY CO., INC., Appellant-Respondent,

v.PRO CIRCUIT, INC., Respondent-Appellant.

WD 82327

C/w WD 82364

Missouri Court of Appeals, Western District.

OPINION FILED: February 25, 2020

Robert M. Pitkin, Kansas City, MO, for appellant-respondent.

Benjamin N. Hutnick, Overland Park, KS, for respondent-appellant.

Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

Pro Circuit, Incorporated ("Pro Circuit") appeals from the Circuit Court of Jackson County's judgment awarding $87,424.70 to Newell Machinery Company Incorporated ("Newell") on Newell's unjust enrichment claim. On cross appeal, Newell appeals from the circuit court's judgment denying their request for prejudgment interest on the judgment and the circuit court's finding in favor of Pro Circuit on Newell's "Delay Claim."¹ Pro Circuit raises five allegations of error and requests this Court reverse and remand for further proceedings. On cross-appeal, Newell raises two allegations of error and requests that we affirm in part and reverse in part. We affirm in part and amend the circuit court's judgment in part to include an award of prejudgment interest and correct a statutory citation in the judgment.

Statement of Facts²

Newell is an Iowa corporation, which designs, constructs, and installs manufacturing equipment. In 2014, Ingredion Incorporated ("Ingredion"), a manufacturer of sweeteners and starches, entered into a contract with Newell to increase its capacity for grain truck unloading at its North Kansas City plant. Newell was the general contractor and mechanical contractor for the project, but it subcontracted with Pro Circuit to perform the electrical work on the project.

Pro Circuit prepared a written proposal to Newell on June 10, 2014 which provided:

[Pro Circuit] propose[s] to furnish the manpower, material, tools and equipment necessary to complete the referenced project. This proposal is based upon our interpretation of the plans and specifications. Any extra work for items, which are not shown, will be done at an agreed extra price. Should you award Pro Circuit a contract, understand this proposal shall be a part of the Contract documents.

The proposal consisted of a lump sum of $149,500.00 for all of the electrical work on the project. Newell accepted Pro Circuit's proposal on September 22, 2014.

On January 31, 2015, Pro Circuit submitted its first application for payment for the amount of $100,000.00. The first application for payment had a balance of $0.00 for "Net Change by Change Orders." Newell paid the requested $100,000.00 on March 12, 2015. Pro Circuit submitted its second and final application for payment on March 25, 2015, requesting payment of $140,343.68, which consisted of the remaining lump sum balance of $49,500.00 and an additional $90,843.68 for "Net Change by Change Orders." Pro Circuit alleged Newell had approved ten change orders resulting in the additional amounts owed. Pro Circuit and Newell conducted a meeting regarding the additional amounts claimed. Newell agreed to pay one change order in the amount of $3,418.98. In October 2015, Newell paid the remaining lump sum balance due under the agreement in the amount of $49,500.00 and the approved extra charge of $3,418.98. Newell considered the matter closed.

However, on December 17, 2015, Ingredion received a "Notice of Claim of Mechanics' Lien" from Pro Circuit. Ingredion pressured Newell to "promptly take such actions as are necessary to discharge the lien and/or Notice of Claim in its entirety" to avoid having a lien placed on their real estate. On January 20, 2016, Pro Circuit filed a mechanics' lien for the remaining $87,424.70. Newell disputed the validity of the mechanics' lien on the grounds that Newell did not approve the change orders and that the mechanics' lien was untimely filed. In order to preserve its relationship with Ingredion, Newell paid Pro Circuit $87,424.70 under protest to obtain a release of the lien on January 22, 2016.

On June 29, 2017, Newell filed its petition with the circuit court asserting a claim of unjust enrichment. Newell also brought a second count in its petition (the Delay Claim) alleging Pro Circuit caused delays during the project resulting in damages of $20,800.00. The project required a temporary shutdown of the plant scheduled for the week of January 19, 2015. However, Newell alleged that Pro Circuit did not order the necessary parts to complete the work that had to be performed during the shutdown as scheduled. The shutdown was initially pushed back to January 26, 2015, and ultimately pushed to February 10, 2015. The circuit court found that Newell did not establish by the preponderance of the evidence that Pro Circuit was responsible for the delay in the shutdown.

Procedural Background

On September 5, 2017, Pro Circuit's trial counsel signed and filed its initial answer. On October 11, 2017, Pro Circuit's trial counsel signed and filed an amended answer raising various affirmative defenses. On October 18, 2017, during a case management conference the circuit court set the matter for trial on July 19 and 20, 2018 with the agreement of the parties. On July 12, 2018, one week before trial, Pro Circuit filed two motions: a Motion to Continue Trial Date ("Continuance") and a Motion for Leave to Amend its answer ("Motion to Amend") to bring counterclaims for defamation and commercial disparagement arising out of the transaction that is the subject of this action. Newell opposed both motions. The circuit court overruled the Continuance on July 17, 2018. Pro Circuit Filed a Motion for Reconsideration of [Pro Circuit's] Motion to Continue Trial Date ("Continuance Reconsideration"), which the circuit court overruled on July 19, 2018. The circuit court also overruled the Motion to Amend on July 19, 2018. The trial was held on July 19 and 20, 2018, as scheduled. The circuit court entered its judgment on October 1, 2018, against Pro Circuit on the unjust enrichment claim, awarding $87,424.70 in damages without prejudgment interest, and finding in favor of Pro Circuit on the Delay Claim. This appeal followed.

Discussion

Pro Circuit raises five points on appeal. In its first three points, Pro Circuit alleges the circuit court abused its discretion in overruling: (Point One) its Continuance, (Point Two) its Continuance Reconsideration, and (Point Three) its Motion to Amend. In its fourth point, Pro Circuit alleges the circuit court erred in entering judgment on the unjust enrichment claim, and in its fifth point, Pro Circuit alleges the circuit court erred in overruling its Motion for a New Trial.

Newell raises two points on cross-appeal. First, Newell alleges the circuit court erred because the judgment did not award prejudgment interest. Second, Newell alleges the circuit court erred in entering judgment in favor of Pro Circuit on the Delay Claim because the judgment was against the weight of the evidence.

Pro Circuit's Point One

In its first point on appeal, Pro Circuit alleges the circuit court abused its discretion in overruling Pro Circuit's Continuance because: (1) it was Pro Circuit's first request for a continuance, (2) trial counsel had been reassigned to the case after an associate left trial counsel's firm, and (3) trial counsel needed additional time to conduct discovery and to secure witnesses for trial. We disagree.

Standard of Review

"The circuit court's decision to overrule a motion for continuance is reviewed for an abuse of discretion." Macke v. Patton , 591 S.W.3d 865, 867–68, 868–69 (Mo. banc July 16, 2019). "The circuit court abuses its discretion ‘when the ruling is clearly against the logic of the circumstances and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful, deliberate consideration.’ " Id. (quoting Howard v. City of Kan. City , 332 S.W.3d 772, 785-86 (Mo. banc 2011) ). "Denial of a request for a continuance is seldom reversible error." Tatum v. Tatum , 577 S.W.3d 146, 153 (Mo. App. E.D. 2019).

Analysis

Pro Circuit's motion for the continuance stated as grounds that: (1) additional time was necessary to complete discovery, and specifically information which must be obtained from third parties; (2) Pro Circuit wished to file an amended answer asserting counterclaims for defamation and commercial disparagement; and (3) that the matter was recently assigned to counsel because an attorney with the firm who had previously been working on the file was no longer with the firm. In its response objecting to the request for continuance, Newell alleged that: (1) the motion was untimely under local Circuit Rule 34.1; (2) Pro Circuit had not attempted any discovery in the over one year since the case was filed; (3) counsel for Pro Circuit was present at the pretrial conference and agreed to the dates when the case was set for trial; and (4) Pro Circuit's current counsel of record is the only attorney who signed any pleadings since this case was filed and the only attorney representing Pro Circuit that has had contact with Newell since August of 2016.

"Failure to comply with requirements of [Missouri] Rule 65.03^{[3 ]} is sufficient grounds for the trial court to deny a motion for continuance." Elrod v. Elrod , 192 S.W.3d 738, 742 (Mo. App. S.D. 2006) (citing In re P.D. , 144 S.W.3d 907, 911 (Mo. App. E.D. 2004) ). We hold that the same is true of each circuit's local rules. Sixteenth Judicial Circuit Court Local Rule 34.1 (2019) governs continuances in civil actions and requires that a party moving for a continuance present their motions "to the court no later than the Wednesday before the trial date except for causes arising thereafter." Pro Circuit filed its Continuance on the Thursday before the trial date, and therefore, Pro Circuit's Continuance was not timely filed with the circuit court, which in itself is sufficient grounds to deny the Continuance.

Pro Circuit relies heavily on Wegeng...