Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Charles County Honorable
Matthew E.P. Thornliill.
S. ODENWALD JUDGE.
City of Dardenne Prairie ("City") appeals from the
trial court's grant of judgment on the pleadings, which
rejected the City's breach-of-contract claim against
Adams Concrete and Masonry ("Adams Concrete") and
also dismissed Adams Concrete's breach-of-contract
counterclaim against the City. Both the claim and
counterclaim were premised upon the writing attached to the
City's petition as Exhibit 1. Because the City was bound
by its assertion, in its own pleadings, that the terms of
Exhibit 1 were never approved by the City's Board of
Aldermen ("Board"), the purported contract is void
ab initio for failing to comply with Section
432.070. Accordingly, the trial court properly
granted judgment on the pleadings. We affirm.
and Procedural History
our standard of review, we accept the facts as alleged in the
City's petition: The underlying litigation arises from
the City's purchase of "custom masonry
material" ("bricks"). The City planned to use
these bricks to construct a new city hall and a proposed
parks maintenance building ("Parks Building").
October 2008, the City enacted two ordinances regarding the
construction of a new city hall. Ordinance No. 1350
authorized the City to enter into an "architectural
services agreement" with Studio One Architecture, Inc.
("Studio One") "in relation to the design and
construction of the new City Hall." Ordinance No. 1351
authorized the City to enter into a separate agreement with
Studio One for "construction management services"
relating to the design and construction of the new city hall.
the City and Studio One entered into the
construction-management agreement, Studio One advised the
City to purchase the bricks needed to construct the new city
hall and the proposed Parks Building. Although the
Parks Building was not yet approved by the Board, Studio One
advised the City to purchase the bricks for that project to
hedge against the rising cost of bricks.
this advice, the City ordered bricks to cover both projects
from Adams Concrete. The City's petition stated:
The City, through Studio One, entered into an agreement with
Adams Concrete and ordered the Bricks for the new City Hall
and Parks Building (the "Contract"). A true and
correct copy of the Contract and Invoice for the Bricks is
attached as Exhibit 1 and incorporated as though fully set
forth. [Emphasis in original.]
first page of Exhibit 1 describes itself as a "proposal
by and between Studio One Architecture/Dardenne Prairie City
(Contractor) and Adams Concrete and Masonry; (Sub
Contractor)." The terms specified that Adams Concrete
was to provide "masonry work, " and the scope of
this work was to provide "[a]ll qualified labor,
material, equipment and supervision."The contract price
was $86, 824.47, and the document was signed (the
signatory's identity is unclear from the pleadings). The
second page of Exhibit 1 was an invoice addressed to Studio
One, which indicated a billed amount of $22, 022, 13 for the
bricks ordered for the Parks Building.
November 2009, the City paid Adams Concrete in full for both
orders of bricks. Adams Concrete then arranged for the
fabrication of the bricks from Raineri Building Materials,
Inc. ("Raineri")- Rained delivered to the City the
order of bricks that were to be used for the new city hall.
In December 2010, the City decided not to construct the Parks
Building. Raineri never delivered to the City the remaining
order of bricks allocated for the Parks Building.
years passed without any communication regarding the
allotment of bricks for the Parks Building. As part of a
general audit in November 2014, the City contacted Adams
Concrete regarding the status and location of the bricks that
had been ordered for the never-completed Parks Building. Upon
learning that Raineri had either donated or re-sold those
bricks to a third party, the City sued Studio One, Adams
Concrete, and Raineri in a six-count petition, Only Count VI
asserted a claim against Adams Concrete, which is the subject
of this appeal.
City alleges in Count VI a breach-of-contract claim against
Adams Concrete. The City avers that, through Studio One, it
entered into "the Contract" (previously defined by
the City as Exhibit 1, see above) with Adams Concrete for the
purchase of bricks. The City claims that Adams Concrete
breached the contract by failing to deliver a portion of the
bricks or by taking inadequate steps to ensure that the
bricks were stored properly after fabrication. The City
prayed for $22, 022.13 in damages, which represented the cost
of the undelivered bricks.
Concrete filed an answer denying the City's allegations
and asserted a counterclaim against the City for breach of
contract. The counterclaim also relied on the writing
attached as Exhibit 1 to the City's petition, and alleged
that the City contracted with Adams Concrete to provide
masonry work for the new city hall and the Parks Building.
Adams Concrete averred that the City breached its agreement
when it cancelled the construction of the Parks Building.
City filed a reply pleading to the counterclaim in which it
raised certain affirmative defenses to Adams Concrete's
claims. As one of its affirmative defenses, the City asserted
that Exhibit 1 was not an enforceable agreement because it
had not been approved by the City's Board as required by
The terms of Exhibit 1, to the extent they purport to be a
contract, are not enforceable as to the City pursuant to the
terms of § 432.070, RSMo., for the reason that the Board
of Aldermen of the City did not approve said agreement by
ordinance duly adopted by the Board of Aldermen and the
agreement is therefore void ab initio.
on the City's affirmative defense, Adams Concrete moved
for judgment on the pleadings. In its motion, Adams Concrete
argued that the City, in its affirmative defense, admitted
that the Board did not approve Exhibit 1 and that, to the
extent the writing attached as Exhibit 1 purported to be a
contract, it was void under Section 432.070. The motion
concluded that the City, therefore, was barred from
recovering on its breach-of-contract claim against Adams