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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 election cases.

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 correctly done.

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 agreement.
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