Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF BUTLER COUNTY Honorable Michael
W. LYNCH, P.J.
two-count petition, Douglas White ("Employee") sued
R.L. Persons Construction, Inc. ("RLP"), for unpaid
prevailing wages under section 290.300 ("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[.]" Finding no merit in any of
Employee's points, we affirm the trial court's
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.
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).
and Procedural Background
owned and operated by Randal L. Persons
("Randal"). 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.
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
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.
ease of analysis, we address Employee's points out of
Two-Employee Failed to Sustain His Burden of Proof on Count
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"). 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 ...