Court of Appeals of Missouri, Eastern District, Fourth Division
J.H. BERRA CONSTRUCTION CO., INC., Appellant,
CITY OF WASHINGTON, Respondent.
from the Circuit Court of Franklin County 14AB-CC00189
Honorable David L. Hoven
M.GAERTNER, JR, JUDGE.
Berra Construction Co., Inc. (Berra) appeals from the trial
court's judgment in favor of the City of Washington (the
City) in Berra's contract dispute following a bench
trial. On appeal, Berra argues the trial court erred in
concluding Berra was liable for a certain amount of
liquidated damages, because the trial court misapplied the
law in interpreting terms of the contract in calculating
liquidated damages and because those terms were ambiguous. We
reverse and remand for further proceedings in accordance with
and the City entered into a contract drafted by the City for
the construction of an expansion to the existing Washington
Sanitary Landfill in Franklin County, Missouri (the Project).
The contract both specified that Berra would complete the
Project by November 27, 2013, and provided for a penalty of
$950.00 for "each working day" that Berra was in
default after the contracted completion date. The contract
did not define the term "working day." Berra did
not complete the Project until June 23, 2014. The City
assessed liquidated damages of $133, 000.00 for 140 working
days, which it calculated by counting each non-holiday Monday
through Friday between November 28, 2013 and June 23, 2014.
filed a petition for damages claiming the City breached the
terms of the contract by assessing and withholding $133,
000.00 in liquidated damages because, as relevant to the
issues on appeal, the contract provided for a penalty only
for each "working day, " but the City assessed a
penalty for all non-holiday days Monday through Friday
regardless of whether work was possible due to weather. Berra
argued only days when work was possible due to weather
conditions were "working day[s]." Moreover, Berra
argued the City had agreed to suspend work between December
17, 2013 and April 17, 2014 due to frost permeation, and thus
the City should not have considered those days as
"working day[s]" for the purpose of accruing
bench trial, the parties presented the following evidence, as
relevant to the issues on appeal. An engineer from the City
testified that she did not suspend the Project between
December and April, although Berra did not work during that
time. As to the calculation of damages, she testified that
based on the wording of other portions of the contract she
believed the contract defined a "working day" as
all non-holiday days Monday through Friday, irrespective of
whether the contractor was able to perform productive work.
Berra, the foreman for the Project testified that the custom
in the construction industry was to define a "working
day" as only those days where the weather allowed
productive work. Berra introduced exhibits showing that
between November 28, 2013 and June 23, 2014, Berra was unable
to complete productive work due to adverse weather conditions
on November 29; December 12-13, 16; April 22, 25, 28-30; May
1-2, 13-16, 27-28, 31; and June 2, 4, 6, 9-16. Berra included
in its list of nonproductive working days, days spent
removing rain water from the construction site.
trial court concluded that Berra had materially breached its
contract obligations by failing to complete the Project by
November 27, 2013 and was liable for liquidated damages in
the amount of $133, 000.00 for the delayed completion of the
Project. The court found that Berra, and not the City,
suspended work over the winter, and that, for the purposes of
calculating liquidated damages, "working days" were
every non-holiday week day. This appeal follows.
court-tried case, we will affirm the judgment of the trial
court unless it is not supported by substantial evidence or
is against the weight of the evidence, or unless the trial
court erroneously declares or applies the law. Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view the
evidence in the light most favorable to the judgment and
defer to the trial court's credibility determinations.
Prop. Assessment Review. Inc. v. Greater Mo. Builders,
Inc., 260 S.W.3d 841, 845 (Mo. App. E.D. 2008). Although
we defer to the trial court's factual findings, we
"independently evaluate its conclusions of law."
Monsanto Co. v. Syngenta Seeds, Inc., 226 S.W.3d
227, 230 (Mo. App. E.D. 2007) (citations omitted). The
interpretation of a contract and questions of contractual
ambiguity are matters of law, which we review de
novo on appeal without deference to the trial
court's construction. Id.
raises two points on appeal, arguing that the trial court
erred in finding Berra liable for liquidated damages of $133,
000.00 because, first, the trial court misapplied the law by
defining "working day" as all non-holiday week days
regardless of weather conditions, and second, the term
"working day" as used in the contract was ambiguous
and the trial court erred in failing to resolve the ambiguity
in favor ...