Walton Const. Co. v. Mgm Masonry, Inc.

• Decision Date: 27 June 2006
• Docket Number: No. WD 63771.,No. WD 63735.,WD 63735.,WD 63771.
• Citation: 199 S.W.3d 799
• Parties: WALTON CONSTRUCTION COMPANY, Appellant-Respondent, v. MGM MASONRY, INC., Respondent-Appellant.
• Court: Missouri Court of Appeals

199 S.W.3d 799

WALTON CONSTRUCTION COMPANY, Appellant-Respondent, v. MGM MASONRY, INC., Respondent-Appellant.

No. WD 63735.

No. WD 63771.

Missouri Court of Appeals, Western District.

June 27, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 2006.

Application for Transfer Denied September 26, 2006.

COPYRIGHT MATERIAL OMITTED

Danne Wayne Webb, Kansas City, MO, for Appellant.

Frank F. Sallee, Molly Andrea Brown, Robert L. Wehrman, Kansas City, MO, for Respondent.

Before VICTOR C. HOWARD, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.

JAMES M. SMART, JR., Judge.

This case involves cross-appeals arising out of a jury verdict and award of damages in favor of MGM Masonry, Inc. against Walton Construction Inc. Each party had sued the other for breach of a construction contract. Walton contends, inter alia, that it was reversible error for the court to refuse to poll the jury after verdicts on the parties' respective claims, and that it was prejudiced thereby because the verdicts were inconsistent. MGM, which received a purported verdict from the jury, appeals the trial court's denial of its post-trial motion for attorneys' fees and interest.

In November 2005, we reversed and remanded for a new trial. After opinion, we granted rehearing.

Background

In July 1999, Walton was hired as the general contractor for construction of a large store in Kansas City. The project was to be constructed primarily of concrete masonry blocks. Walton subcontracted with MGM to perform the masonry work on the project. The original contract price for MGM's work was $1,257,800, to be paid in periodic installments. MGM began work on the project on August 2, 1999. The contract included various "completion dates" for different aspects of the work MGM was to perform. According to Walton, MGM failed to satisfactorily meet the contract completion dates. Beginning in October, Walton began claiming that MGM was failing to perform under the contract, and began withholding amounts due MGM under the contract. Ultimately, Walton withheld the sum of $242,384.

Walton filed a breach of contract lawsuit against MGM. The petition alleged that MGM's failure to perform according to the contract caused Walton to incur costs and expenses. Walton also alleged that MGM failed to protect and indemnify it from liens or claims from its suppliers, as required by the contract. Walton sought indemnification for over $90,000 in unpaid invoices from the material supplier. Walton also sought reimbursement for costs, expenses, and attorneys' fees, pursuant to the contract.

MGM brought a counterclaim against Walton, alleging that Walton had first breached the contract by failing to properly manage the project and by failing to make timely payments due it under the contract. MGM sought damages in excess of $350,000, consisting of the unpaid contract balance plus additional damages MGM claimed as a result of Walton's other breaches.

Proceedings at Trial

The case proceeded to trial before a jury in September 2003. Walton's position at trial was that MGM had breached the contract by failing to timely perform its work under the contract. Walton presented evidence that this failure caused it to incur additional costs and expenses in order to finish the project on time. Walton also presented evidence that it had satisfied $70,000 in supplier invoices and sought reimbursement from MGM for that.

MGM sought to prove at trial that Walton had breached the contract by withholding $242,384 in payments due under the contract and by mismanaging the project, which caused $92,898 in additional damages to MGM.

MGM presented evidence that Walton mismanaged the project by, inter alia, failing to properly coordinate the work at the construction site, allowing conflicts and interference with MGM's work, and inconsistently redirecting MGM's work. MGM claimed that Walton did not have sufficient footings available at the start of the project for MGM to install the material. MGM asserted that its delay in getting the colored blocks delivered was due in part to Walton's failure to provide MGM timely written confirmation of the contract, and in part to the contract's requirement that MGM use Midwest Block & Brick as the supplier. MGM presented evidence of other failures by Walton, which need not be detailed here.

At the instruction conference, the parties proposed one set of instructions for Walton's claim against MGM and a separate set of instructions for MGM's counterclaim against Walton. The jury was given two separate verdict forms: Verdict A on Walton's claim against MGM, and Verdict B on MGM's counterclaim. Instruction 5 informed the jury: "Nine or more of you must agree in order to return any verdict. A verdict must be signed by each juror who agrees to it." (Emphasis added.)

The claims were submitted to the jury with the following pertinent instructions. On Walton's claim, the verdict director (which directed resolution on Verdict A) directed the jury:

Your verdict must be for plaintiff Walton Construction Company, Inc. [] if you believe:

First, Walton and defendant MGM Masonry, Inc. [] entered into an agreement whereby Walton and MGM agreed to perform their respective duties and obligations as described in subcontract documents for the Home Depot project, and

Second, Walton performed its agreement, and

Third, MGM failed to perform its agreement, and

Fourth, Walton was thereby damaged.

On MGM's counterclaim, the verdict director (which directed resolution on Verdict B) instructed the jury:

Your verdict must be for defendant MGM Masonry, Inc. [] if you believe:

First, MGM and plaintiff Walton Construction Company, Inc. [] entered into an agreement whereby MGM and Walton agreed to perform their respective duties and obligations as described in the subcontract documents for the Home Depot project, and

Second, MGM substantially performed its agreement, or was prevented from performing its agreement, and

Third, Walton failed to perform its agreement, and Fourth, MGM was thereby damaged.

The jury found in favor of MGM on Walton's breach of contract claim (Verdict A). The jury also found in favor of MGM and against Walton on MGM's counterclaim (Verdict B), and assessed damages at "$242,384, plus interest, plus $12,030." Both verdict forms were signed by nine jurors. Juror Janner, the foreman, had signed verdict B in favor of MGM, but did not sign verdict A. Juror Shockley had signed verdict A, but not verdict B. The judge read the verdicts in open court within the hearing of the jury. He noted that verdict A was signed by nine jurors and stated that it appeared to be in proper form. He made the same statement with regard to verdict B.

Counsel for Walton requested that the jury be polled. The court refused, believing that the right to poll juries was applicable only in criminal cases. The judge then discharged the jury. After the jury was discharged, the judge, the attorneys, and the parties became aware that the two verdicts were not signed by the same nine jurors.

Walton moved for judgment notwithstanding the verdict or alternatively for new trial. The court denied the motion, concluding that the verdicts were not inconsistent, and that nothing would have been gained by polling the jury. MGM maintained the verdicts were not inconsistent and opposed the new trial motion.

The judgment did not include an amount for interest or for attorneys' fees as MGM had requested under section 431.180. MGM filed a post-trial Motion to Amend Judgment to Include Interest and Attorney Fees. The trial court also denied that motion.

Judgment was entered in favor of MGM in the total amount of $254,414, with no award of attorney's fees or interest. Both parties appeal. The appeals have been consolidated.

Denial of Right to Poll

Walton argues, inter alia, that the court should have awarded it a new trial because the verdicts were inconsistent and that it had an absolute right to poll the jury, which the court erroneously denied. Because these assertions are interrelated, we will consider them together.

Although it may be more common to associate with criminal cases the right to poll a jury, each party in a civil case also has that right. Poulson v. Collier, 18 Mo. App. 583, 603 (Mo.App.1885). The procedural right to poll a jury surely has a purpose—and we would suppose that the right to poll is properly invoked whenever a party has a concern, even if based only on a hunch, that one or more jurors may not have actually intended or desired to vote as the verdict form indicates. There is no statute or court rule addressing the polling of civil juries. However, the right to poll a civil jury has long existed in Missouri. See St. Louis County v. Pennington, 830 S.W.2d 553, 555 (Mo.App. 1992).

Walton argues that it was reversible error for the court to refuse to poll the jury, with or without a showing of prejudice. Walton contends that a showing of prejudice should not be required, despite the apparent holding in Pennington. See id. at 555-56 (held that even if error occurred when trial judge refused request to poll jury in a condemnation action, reversal was not required absent evidence of substantial prejudice). Walton also argues, however, that even if prejudice is required for reversal, such prejudice is present here. Had the jury been polled, Walton says, it would have either demonstrated the inherent inconsistencies in the verdicts or it would have revealed that one or more of the jurors did not intend the result reached. MGM disagrees, saying there was no need for a poll because there was no inconsistency. MGM also now on rehearing suggests that if this court believes there was an apparent inconsistency, the case should be remanded to allow MGM to present juror evidence to clarify and uphold the verdict.¹

Juror Signatures

Three-fourths or more of a jury in a civil case must agree on the verdict, unless the parties agree otherwise. Mo. CONST. art....