White v. R.L. Persons Constr., Inc.

• Decision Date: 15 November 2016
• Docket Number: No. SD 34327,SD 34327
• Parties: Douglas WHITE, Plaintiff–Appellant, v. R.L. PERSONS CONSTRUCTION, INC., Defendant–Respondent.
• Court: Missouri Court of Appeals

503 S.W.3d 339

Douglas WHITE, Plaintiff–Appellant,

v.R.L. PERSONS CONSTRUCTION, INC., Defendant–Respondent.

No. SD 34327

Missouri Court of Appeals, Southern District, Division Two.

Filed November 15, 2016

Attorneys for Employee–Appellant: Stephen C. Thornberry and Randall W. Brown, THORNBERRY BROWN, LLC, Kansas City, Missouri

Attorneys for RLP–Respondent: Kevin J. Dolley and James C. Keaney, LAW OFFICES OF KEVIN J. DOLLEY, LLC, St. Louis, Missouri

GARY W. LYNCH, P.J.

In a two-count petition, Douglas White ("Employee") sued R.L. Persons Construction, Inc. ("RLP"), for unpaid prevailing wages under section 290.300¹ ("Count 1") and under a breach of contract claim as a third party beneficiary ("Count 2"). Following a bench trial, the trial court found that Employee failed to meet his burden of proof on both claims and entered judgment in favor of RLP. On appeal, Employee contends that the trial court erred because: (1) "it applied an improper legal standard by requiring [Employee] to prove he was substantially dedicated to the job site[;]" (2) "it failed to find that [Employee] performed any compensable work on Prevailing Wage job sites in that ... such findings were contradicted by [RLP's] admissions to the contrary, are against the weight of the evidence, and are based on an erroneous legal standard[;]" (3) "it allowed improper hearsay and opinion evidence from an Arbitration proceeding[;]" and (4) "it applied an improper legal standard and made erroneous factual findings in that Missouri law allows [Employee] to proceed on a Third Party Beneficiary Breach of Contract Claim as a matter of law[.]"² Finding no merit in any of Employee's points, we affirm the trial court's judgment.

Standard of Review

We review a court-tried case under the standard set forth in Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.

"In a court-tried civil case it is the court's duty to judge the credibility of the witnesses and the weight to be given to their testimony. The judge is free to believe none, part, or all of the testimony and chooses between conflicting evidence. We defer to these determinations." Bonney v. Envtl. Eng'g, Inc. , 224 S.W.3d 109, 125 (Mo.App. 2007) (internal citations omitted).

Factual and Procedural Background

RLP is owned and operated by Randal L. Persons ("Randal").³ RLP performs general, heavy, civil, commercial, and industrial construction in Missouri and in nearby states. A portion of RLP's business involves contracting with public agencies for the construction of public works projects.

On January 26, 2012, Employee began working for RLP as a shop mechanic. RLP promoted Employee to shop supervisor around September 2012. Employee's promotion was accompanied by a raise ($1,000 per week salary to cover all wages due to him) and an expectation that Employee would work 50 hours per week. The shop supervisor position differed from the shop mechanic position in that it involved responsibilities of delegating work and handling paperwork (e.g., ordering parts, reviewing and approving time sheets). Employee worked at RLP's headquarters in Missouri and also on both prevailing wage and non-prevailing wage job sites across multiple states. Employee was paid prevailing wage as an ironworker for work on a prevailing wage job site on one occasion after being promoted to shop supervisor but claimed at trial that he was not paid prevailing wages for work he performed on eight other prevailing wage job sites.⁴

In its judgment, following trial, the trial court determined that Employee "failed to meet his burden of proof on the two claims in his Petition" and entered judgment in favor of RLP on both counts. Employee timely appeals.

Discussion

For ease of analysis, we address Employee's points out of order.

Point Two—Employee Failed to Sustain His Burden of Proof on Count 1

The portion of RLP's business concerning contracts "with public agencies for the construction of public works projects" in Missouri is subject to the Missouri Prevailing Wage Law ("MPWL").⁵ The MPWL "expressly provides that ‘all workmen employed by or on behalf of any public body engaged in the construction of public works' be paid ‘not less than the prevailing hourly rate of wages for work of similar character in the locality in which the work is performed.’ " Thomas v. A.G. Elec., Inc. , 304 S.W.3d 179, 183 (Mo.App. 2009)(quoting section 290.230.1). Claims brought under the MPWL are treated as a civil " ‘suit for wages.’ " Bonney , 224 S.W.3d at 120 (citing section 290.300). To be successful in an action under section 290.300, a plaintiff must prove by a preponderance of the evidence that he or she was "paid for his [or her] services in a sum less than the stipulated rates for work done under the contract." Id.

Employee's second point contends:

The trial court erred in granting judgment in favor of [RLP] on [Employee's] claims arising under Missouri's Prevailing Wage Law because it failed to find that [Employee] performed any compensable work on Prevailing Wage job sites in that in that [sic] such findings were contradicted by [RLP's] admissions to the contrary, are against the weight of the evidence,^{[6 ]}and are based on an erroneous legal standard.^{[7 ]}

In its judgment, the trial court framed the "critical questions" related to this point as "whether [Employee] performed actual construction work on a public works project, and if so, when and where ." (Emphasis added). On appeal, Employee concedes that he had the burden to prove that he performed actual construction work on a prevailing wage jobsite and then frames the "only question" remaining as "how often [Employee] visited these prevailing wage sites to perform mechanic work." (Emphasis added). While posed in different terms, these questions raise the same issue—the quantity of actual construction work Employee performed on prevailing wage jobsites.

According to the trial court's judgment, which Employee does not dispute in this regard, the evidence in the record from which the trial court resolved this quantity issue comes from only three sources: (1) Employee's testimony, (2) Employee's time records, and (3) Randal's testimony. The trial court expressly found Employee's testimony on this issue was inconsistent and not credible. The trial court also expressly found that Employee's time records "do not reliably establish when and how long [Employee] actually worked on-site at prevailing wage job sites[,]" (emphasis added) and that "it is absolutely impossible to determine the number of hours [Employee] performed prevailing wage work on prevailing wage jobs based upon [Employee's] records and timesheets." We are required by our standard of review to defer to these trial court credibility and weight determinations, Bonney , 224 S.W.3d at 125, and Employee does not contend or argue otherwise.

Rather, in his point and argument under this point, Employee contends that based solely upon Randal's testimony, Employee sustained his burden of proof on his MPWL claim as a matter of law, so that the trial court was required to enter judgment in his favor. Citing to the same testimony by Randal as relied upon Employee in this point, the trial court found that

[Employee] performed routine maintenance and minor upkeep on heavy equipment, which would include activities like replacing a busted hose, replacing teeth on a track hoe bucket, cutting edges on a grader, or change a tire or a battery.^{[8 ]}This work happened on both prevailing wage and non-prevailing wage job sites .

(Emphasis added). Employee points to the latter finding and Randal's testimony to that effect to argue and conclude that "[c]learly he worked some hours... [such that this] matter must be reversed for calculation of damages under the proper legal standards." (Emphasis added).

Assuming, without deciding, that Randal's testimony and the trial court's finding based upon that testimony supports that Employee performed some actual construction work on some unidentified prevailing wage jobsites, Employee's point nevertheless fails. Randal's testimony did not attribute any of the described activities as having been performed by Employee on any particular jobsite or specify any length of time Employee engaged in such activity on such a jobsite. Employee's argument and conclusion, therefore, is flawed in two respects. First, Randal's testimony answers neither the "when and where" nor the "how often" question—the quantity issue. Second, it completely ignores and overlooks the lack of any credible evidence in the record from which the trial court could have reasonably determined "when and where" Employee performed actual construction work or, in his words, "how often [he] visited these prevailing wage sites to perform mechanic work."

In the absence of credible quantitative evidence reasonably related to a particular prevailing wage jobsite and its unique prevailing wage determination for the particular activities performed by Employee on that jobsite, the trial court had no evidentiary basis upon which to support a finding that Employee was "paid for his [or her] services in a sum less than the stipulated rates for work done under the contract[,]" see Bonney , 224 S.W.3d at 120 (citing section 290.300). Any damage calculation or award based solely upon Randal's testimony, as Employee urges, would be based upon nothing more than speculation and would be improper. See Delgado v. Mitchell , 55 S.W.3d 508, 512 (Mo.App. 2001) ("appellate court will reverse a judgment that awards damages for breach of contract if the record shows an absence of proof of actual facts that present a basis for a rational estimate of damages without resort to speculation."). Recognizing this deficiency in the credible evidentiary record before it and Employee's burden of proving the existence and amount of...