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City of Dardenne Prairie v. Adams Concrete and Masonry, LLC

Court of Appeals of Missouri, Eastern District, Fourth Division

May 30, 2017


         Appeal from the Circuit Court of St. Charles County Honorable Matthew E.P. Thornliill.



         The 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.[1] Accordingly, the trial court properly granted judgment on the pleadings. We affirm.

         Factual and Procedural History

         Under 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").

         In 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.

         After 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.

         Following 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.]

         The 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."[2]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.[3]

         In 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.

         Several 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.

         The 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.

         Adams 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.

         The 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 law:

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.

         Seizing 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 ...

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