Paulus v. City of St. Louis
Decision Date | 16 September 1969 |
Docket Number | Nos. 33126,33136,s. 33126 |
Parties | Walter L. PAULUS, d/b/a Robert Paulus Construction Company, Plaintiff-Respondent, v. The CITY OF ST. LOUIS, a Municipal Corporation, Defendant-Appellant. |
Court | Missouri Court of Appeals |
Ferrara & Mulligan, St. Louis, for plaintiff-appellant.
Gary M. Gaertner, City Counselor, John J. Fitzgibbon, Associate City Counselor, Donald R. Carmody, Asst. City Counselor, St. Louis, for defendant-respondent.
JAMES H. KEET, Jr., Special Judge.
Plaintiff-respondent, a general contractor, challenges the right of appellant, the City of St. Louis, to retain $4,234 which plaintiff paid to the City under protest for a building permit after plaintiff had begun construction of the Clinic and Administration Buildings at the St. Louis State Hospital under a $4,291,600 contract with the State of Missouri. In a jury-waived trial on plaintiff's petition, which alleged that the City erroneously and without legal authority required plaintiff to pay the permit fee, the trial court awarded plaintiff judgment for $4,234. The City appeals from this judgment. The trial court disallowed interest. Plaintiff filed a notice of appeal from such disallowance, but has not perfected said appeal nor briefed the question. The plaintiff's appeal in 33,136 is dismissed.
Plaintiff moves to dismiss the appeal because City did not file timely notice of appeal The motion must be overruled. On November 2, 1967, the 90th day after City timely filed its first motion for new trial, the court entered its order (1) finding, as contended by City in its said motion, that it had erred in awarding interest because interest is not '* * * allowed for recovery back for a tax or a fee and there is no statutory authority for such a judgment for interest'; (2) ordering a new trial on the 'issues of interest'; and (3) ordering that in all other respects the judgment of July 25 '* * * remain in full force and effect, but be held in abeyance pending entry of final judgment in this cause, including the issues of interest * * *.'
The initial judgment could not be final until disposition of City's initial motion for a new trial. Civil Rule 78.02. 1 The court had the power and discretion to grant a new trial on all or part of the issues after trial by the court. Civil Rule 78.01. On November 15, the following occurred successively: counsel for each party appeared and the cause was submitted for a new trial on the evidence previously adduced; judgment was entered in favor of plaintiff for $4,234 (without interest) and costs; a second motion for new trial by City was filed, presented, argued, submitted, and overruled; and City filed notice of appeal.
Plaintiff contends that the court did not have the power or authority to hold the judgment for principal in abeyance. The trial court had such power. There was no final judgment, since the issue of interest was not decided and disposed of until after new trial on that issue on November 15. The court did not under Civil Rule 82.06 designate the judgment of November 2 (as to principal) as final. Rather, the exact opposite. This the court had the power and authority to do, by withholding entry of final judgment until it held a new trial on and ruled on the issue of interest, which was related to the issue of the principal. In order to be final and appealable a judgment in a non-jury case must dispose of all related issues, unless the judgment, disposing of just part of the issues, is designated as a final judgment by the trial court. Kansas City Power & Light Co. v. Kansas City, Mo., 426 S.W.2d 105, 108; Schumacher v. Sheahan Investment Co., Mo.App., 424 S.W.2d 84, 86; Ramatowski v. Ramatowski, Mo.App., 414 S.W.2d 827, 828--829; L & L Leasing Co. v. Asher, Mo.App., 440 S.W.2d 181, 182. See, in relation to the power of a trial court over its judgments, State ex rel. Schweitzer v. Greene, Mo. En Banc, 438 S.W.2d 229, 232. Civil Rule 75.01 and former Supreme Court Rule 3.25 incorporated as part of Civil Rule 75.01 ( ) and Schenberg v. Schenberg, Mo.App., 307 S.W.2d 697, all cited by plaintiff, do not aid plaintiff on its motion.
The court reviews the record de novo both on the law and the evidence as in an equity case, giving due deference to the opportunity of the trial court to observe the witnesses and determine their credibility under Civil Rule 73.01(d), V.A.M.R. Upon such review the judgment nisi will not be set aside unless clearly erroneous, Huff v. Trowbridge, Mo., 439 S.W.2d 493, 497. Since the oral evidence is largely undisputed and much of the total evidence consists of writings and documents, the same deference is not due the trial court as would otherwise be given in cases involving disputed oral testimony. Prior v. Hager, Mo.App., 440 S.W.2d 167, 172. The court finds the facts to be as set out herein.
The construction contract was awarded to plaintiff as general contractor on September 4, 1959 for erection of the building for a total cost of $4,291,600 under an appropriation of $5,200,000 for 'constructing, furnishing and equipping of Clinic and Administration Building, including approved safety features for eliminating fire and other hazards' (Laws 1959, H.B. 270, p. 9, Sec. 13). Plaintiff's estimater, Mr. Armistead (the only witness at trial), had not included any amount (for purpose of arriving at plaintiff's bid price on the job) for a building permit. His estimate for 'Overhead Items' showed 'Permit Not req(uired).' It listed 104 weeks at $170 for 'supervision.' Plaintiff did not inquire of City, prior to submitting its bid, as to whether City would require a permit under the construction contract.
The drawings, schedules, and specifications (including scope of work involved, notice to contractors, instructions to bidders, bond forms, special and general conditions, bidder qualification requirements, prevailing wage determination, form of contract and addenda) were prepared by the Division of Planning and Construction and dated April 30, 1959. A firm of architects and engineers and a consulting structural engineer and consulting mechanical engineer, all of St. Louis, were engaged by the State. The contract was signed by the Governor, the Chief of Planning and Construction (herein called the Chief) and the Director of the Department of Public Health and Welfare (herein called the Department).
The specifications bore the names of the Director of the Department and the Director of its Division of Mental Diseases, Very extensive and detailed, they included: provisions for priority of construction; a requirement that bidders direct requests for interpretation of the meaning of the drawings and specifications to the Chief; prevailing wage rates certified pursuant to statute by the Industrial Commission of Missouri; construction conditions which required temporary barricades, walkways, and signal lights to comply with local ordinances; a provision requiring the elevator contractor to obtain and pay for necessary municipal or state inspection or permit and make such tests as are called for by the regulations of such authorities and in the presence of their authorized representatives in regard to electrical dumb-waiters; a requirement that electrical work be done in accordance with the latest National Electrical Code, American Standard Safety Code for electrical dumb-waiters and escalators, and any local codes and requiring the elevator contractor to obtain and pay for necessary municipal or state inspection or permit and make such tests as their regulations called for and in the presence of their authorized representatives; and provisions requiring that the seating plan for audience seats comply in all respects with applicable building ordinances. Installation of x-ray protection was to be made after work performed by others which had been inspected and approved by the architects.
Article 8 of the General Conditions provided, in pertinent part:
Article 9(b) required plaintiff to take all necessary precautions for the safety of employees in the work and to comply with all 'applicable' ordinance provisions to prevent accidents and injury to persons on or about or adjacent to the premises. Article 10 obligated plaintiff to provide proper facilities for inspection and supervision and provided that the State would have a construction supervisor on the job to assure the State that the contract was being properly fulfilled. It likewise gave the State the right to inspect, examine and test materials and workmanship and at any and all times during manufacturing or construction.
Article 13 required plaintiff to give efficient supervision to the work and gave the State the right to terminate plaintiff's employment if it persistently disregarded ordinances. At the end of the work, the State was to make final inspection. The specifications required the electrical and plumbing subcontractors and...
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