Paul Martin, Esquire
Water tower repainting constitutes construction requiring the payment of prevailing wages under the Prevailing Wage Act. Utility Service Co., Inc. v. Missouri Department of Labor & Industrial Relations, No. 90963 (Mo. banc, March 1, 2011), Russell, J.
Utility Service Company, Inc. was hired to repaint a city's water
tower. Utility asked the department whether it was required to pay
prevailing wages under SectionSection 290.210-290.340, RSMo, the
Prevailing Wage Act (the Act). The department concluded that repainting
the structure was "construction" rather than "maintenance," as those
terms are defined by the Act, requiring the payment of prevailing
wages. Utility disagreed and filed for declaratory judgment, and both
parties moved for summary judgment. The trial court granted Utility's
motion, and the department appealed.
Held: Reversed. The Court noted that the Act was a
remedial statute, intended to prevent the payment of a substandard wage
on a public works project, and therefore exceptions to the Act should
be narrowly construed. The Court turned to the department's regulations
for instruction. In light of the department's regulatory conclusions
and the language of the statute, the Court determined that repainting
the tower qualified as a "reconstruction," an "improvement," and an
"alteration," in addition to "painting" and a "major repair," all of
which constituted "construction" under the Act.
Nathan Nickolaus, Esquire
Lien holder not entitled to summary judgment on claim of
inadequate notice following tax sale, where purchasers exercised due
diligence in providing notice and lienholder acknowledged receipt of
two of three notices. Harpagon v. Clay County Collector et. al., No. 72006 (Mo. App. W.D., March 15, 2011), Ellis, J.
Property was sold by Collector at tax sale. Purchaser Sunrise
Atlantic sent notice to three addresses for lien holder CitiFinancial.
Sunrise Atlantic transfers the
property to Harpagon, who files a quite title action against
CitiFinancial. The trial court granted summary judgment for
CitiFinancial which had claimed it had not received proper notice of
the sale. Harpagon appeals (to which CitiFinancial does not reply).
Held: Judgment reversed and remanded. Sunrise
Atlantic was not required to file an affidavit with Collector stating
that proper notice had been given, since this was a first tax sale, not
a third. Although Sunrise Atlantic had not sent notice to the official
address stamped upside down and backwards on the lien, it had
exercised due diligence in notifying CitiFinancial, and CitiFinancial
had acknowledged receipt of two of the three notices. Harpagon was not
required in its notice to give CitiFinancial the exact time limit in
which the lienholder must reply. Having found no basis upon which the
trial court could have granted summary judgment, the judgment is
reversed and the case remanded.
Doctrine of judicial estoppel barred council candidate from office due to lack of residence. In
the Matter of the Contest of the Primary Election Candidacy of Michael
Fletcher for the Office of City Council for the City of Kansas City
District No. 3, Sharon Sanders Brooks v. Fletcher, No. 73609 (Mo. App. W.D., March 8, 2011), Witt, J.
Fletcher, a disbarred attorney, filed for election to the Kansas City
council. Fletcher's application, under oath, stated he was a resident
of Kansas City. Fletcher had previously claimed diversity jurisdiction
in a federal court by stating that he was domiciled in California. The
trial court found these two judicial statements inconsistent and that
Fletcher was estopped from arguing to a Missouri court that he was
domiciled in Missouri. Fletcher appealed.
Held: Judgment affirmed. Plaintiff, as an attorney,
knew what term "domiciled" meant. He had argued to the Ninth Circuit
that he lived in California and intended to "start over there" thus
indicating no intent to maintain a Missouri domicile. The term
"domicile" is interchangeable with "residency," thus the two sworn
statements are inconsistent. Judicial estoppel clearly applies. The
court also provides a review of how residency is determined in Missouri
Sovereign immunity not waived under the "dangerous
condition" exception where injury was not caused by a physical
condition or object; supervisors protected from suit by the public duty
doctrine. Rodgers v. City of North Kansas City, et al., No. 72328 (Mo. App. W.D., March 8, 2011), Howard, J.
Rodgers sued a male nurse employed by city hospital, claiming he had
molested her in in a locked examination room. Rodgers claimed that the
lock was a dangerous condition due to a past history of complaints
against this nurse. Rodgers also sued nurse supervisors for malpractice
for failing to adequately supervise the nurse. The trial court granted
summary judgment against Rodgers, and Rodgers appeals.
Held: Judgment affirmed. The dangerous
condition exception to sovereign immunity applies only when there is a
physical condition or object which actually causes the injury. Here,
the lock was not related to the injury claimed. Because the
supervisors' duty to the general public to not retain dangerous nurses
was identical to their duty to the plaintiff, the public duty doctrine -
which holds that public employee may not be sued for breach of a duty
to the general public - applies and bars suit.
Breach of contract and warranty may be maintained even when
engineer, hired by city, recommended that construction was successfully
completed and final payment had been made. Kimberling City v. Journagan Construction, Inc., No. 30611 (Mo. App. S.D., February 14, 2011), Rahmeyer, J.
City had a contract with construction company to build sewage
collection system. City sued for breach of contract and breach of
warranty. Company claimed City had waived its rights as provided in the
construction documents because it had made final payment upon the
recommendation of outside engineer hired by City. The trial court
granted summary judgment.
Held: Reversed and remanded. City was not bound by
the recommendation of the engineer that work had been successfully
completed. Whether or not work was correctly performed was therefore a
disputed material fact. The contract provision that City waived
warranty by making final payment only applied insofar as the work was
Fire District bound by agreement with city specifying a
fixed amount of compensation for land previously annexed by City as
well as all future annexations. Western Taney County Fire Protection District v. City of Branson, No. 30688 (Mo. App. S.D., February 10, 2011), Scott, C. J.
City and Fire District entered into an agreement whereby City paid
District a fixed amount for past areas of the district annexed into the
City and for all future annexations. When City again annexed, District
demanded additional compensation arguing that Section 321.322.1 RSMo,
which authorizes such agreements, prohibits agreements made more than
sixty days after the annexation. The trial court granted summary
judgment to the City on the basis of the plain language of the
Held: Judgment affirmed. The
court disagreed with the District's position, saying that the statute
authorizes agreements but does not forbid other agreements.
The Missouri Bar Courts Bulletin, 11-Apr