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

Court of Appeals of Missouri, Southern District, Second Division

November 15, 2016

DOUGLAS WHITE, Plaintiff-Appellant,
v.
R.L. PERSONS CONSTRUCTION, INC., Defendant-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY Honorable Michael Pritchett

         AFFIRMED

          OPINION

          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 290.300[1] ("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 ...

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