Court of Appeals of Missouri, Eastern District, Fourth Division
PARKWAY CONSTRUCTION SERVICES, INC., Respondent and Cross-Appellant,
BLACKLINE LLC D/B/A BLACKLINE DESIGN AND CONSTRUCTION, and MAGNOLIA HALLIDAY LLC, Appellants.
from the Circuit Court of the City of St. Louis Honorable
James E. Sullivan
S. ODENWALD, PRESIDING JUDGE.
general contractor and plumbing subcontractor both appeal the
trial court's judgment on breach-of-contract and
equitable claims raised in the subcontractor's petition.
The underlying dispute involves the renovation of two
apartment buildings and whether the subcontractor exceeded
the scope of work authorized by the contract it entered into
with the general contractor. The general contractor appeals
the judgment finding it liable for breach of contract and
awarding attorneys' fees to the subcontractor as the
prevailing party. The subcontractor appeals the judgment
finding against it on its equitable claims of unjust
enrichment and quantum meruit.
the subcontractor voluntarily dismissed its
breach-of-contract claim, the trial court properly exercised
its authority when reinstating the claim prior to trial where
the voluntary dismissal was made without prejudice by the
plaintiff/subcontractor and the reinstatement caused no harm
to the defendant/general contractor. While the record
contains sufficient evidence to support much of the
subcontractor's breach-of contract claim, the trial court
erred when it included the shower-valve work within the
contract, and that part of the judgment is reversed.
the subcontractor's equitable claims, the record supports
the trial court's finding that the subcontractor waived
said claims. Lastly, we find that the subcontractor was the
prevailing party, and therefore was entitled to an award of
attorneys' fees under the contract. However, we remand
the award of attorneys' fees to the trial court to
reexamine the amount of the attorneys' fee award and
ensure that the award does not include fees for work that was
completely severable and related exclusively to the equitable
claims upon which the subcontractor did not prevail.
and Procedural History
Construction Services, Inc. ("Parkway") and
Blackline LLC ("Blackline") entered into a
construction contract (the "Contract") pertaining
to a renovation of two apartment buildings (the
"Project") located on 2804-2820 S. Compton in St.
Louis, Missouri (the "Property"). Magnolia
Halliday, LLC ("Magnolia") owned the Property.
Magnolia hired Blackline as the general contractor for the
Project. Blackline subsequently entered into the Contract
with Parkway, the plumbing subcontractor on the Project.
Under the Contract, Parkway agreed to perform construction
work relating to the plumbing system for buildings situated
on the Property, including the provision of both labor and
materials. Blackline agreed to pay Parkway $96, 000 for this
work. Although, Parkway was to supply materials necessary for
the scope of its work under the Contract, Blackline agreed to
provide shower valves, faucets, tubs, and sinks. Parkway
committed to "[r]ework all existing water supply lines
and waste drains at tubs, sinks, and showers to accommodate
new fixtures and locations per plans." The Contract
defined Parkway's objective as "provid[ing] a
complete working plumbing system[.]"
Parkway and Blackline believed it was likely that some of the
drain/waste/vent ("DWV") piping in the walls would
not need to be replaced as part of Parkway's rework of
the plumbing systems. However, the parties were uncertain as
to how much of the DWV piping would need to be replaced to
complete the Project. Because Parkway was unwilling to accept
the risk of replacing all of the DWV piping, the parties
stipulated that Parkway would be responsible under the
Contract for repairing or replacing up to a maximum of fifty
percent of the DWV piping. The record before us suggests that
this "fifty-percent threshold" was not clearly
defined. Both parties defined the threshold differently at
trial and in their briefs. However, the record is clear that
any work exceeding the fifty-percent threshold was beyond the
scope of work under the Contract, and would be considered
either an additional cost or extra work. The Contract
expressly precluded Parkway from performing extra work beyond
the scope of the Contract without first obtaining written
authorization by Blackline.
to this appeal, the Contract included a change-order
provision, mandating that:
Any adjustment in the [Contract] Amount or time of
performance shall be authorized by a Change Order. No
adjustments shall be made for any changes performed by
[Parkway] that have not been ordered by [Blackline]. A Change
Order is a written instrument prepared by [Blackline] and
signed by [Parkway] stating their agreement upon the change
in [Contract] Work.
Contract also provided that all progress payments were
"subject to receipt of such lien waivers, affidavits,
warranties, guarantees or other documentation required by
this Agreement or [Blackline]." Additionally,
"[f]inal payment shall constitute a waiver of all claims
by [Parkway] relating to [Contract] Work[.]"
Contract also contained an attorneys' fee provision,
stating that "[t]he prevailing party in any dispute that
goes beyond mediation arising out of or relating to this
[Contract] or its breach shall be entitled to recover from
the other party reasonable attorneys' fees, costs and
expenses incurred by the prevailing party in connection with
such dispute." The Contract did not define
Performance under the Contract
Parkway began work under the Contract, the Project quickly
began to fall behind schedule due to factors beyond
Parkway's control. Blackline continuously pressured
Parkway to stay on schedule. As Parkway's plumbers
performed the plumbing work on the Project, they repaired or
replaced almost all stacks/DWV piping in the two apartment
buildings. The plumbers replaced both horizontal and
vertical piping from a few feet above the basement floor to
the highest drain connection at each stack. Parkway did not
replace the cast-iron vent stacks that did not carry water or
waste and allowed only for air venting. Parkway did not
obtain a written change order or even a definite verbal
authorization from Blackline to replace more than fifty
percent of that piping. On May 8, 2015, Parkway emailed
Blackline stating in pertinent part:
I know we conceded to replacing up to [fifty percent] of the
stacks without additional cost. We are there. How do you want
to handle this going forward? This has been a tough job with
a ton of additional costs we could not have foreseen. I am
sure that is true for both of us. We are keeping track of the
time and materials but want to know if we need to talk about
it before we get too far into the process. Be assured we will
do all we can to limit any additional work but the inspectors
are being less than forgiving and much of the existing stacks
responded three days later, telling Parkway that it disagreed
that Parkway had reached the fifty-percent threshold.
Blackline further stated that there should not be an issue
completing the job within the fifty-percent allowance. On
June 1, 2015, Parkway sent Blackline another email informing
Blackline that Parkway had replaced all forty-three stacks.
created two change-order forms: one form relating to the
extra DWV-piping work and a second form relating to extra
shower-valve work. Parkway submitted the shower-valve
change-order form to Blackline before commencing work on the
shower valves. Blackline approved Parkway's change-order
request for the shower-valve work for $ 1051. Parkway
submitted the DWV-piping work change-order form to Blackline
only after completing the work. Parkway continued working on
installing a complete, working plumbing system, but did not
detail the precise hours spent on each task to Blackline.
the parties' dispute and Blackline refusal to grant
retroactively Parkway's change-order request for the
extra DWV-piping work, Parkway stopped performing work under
the Contract. Blackline was required to hire another plumbing
contractor to complete the remainder of the work for which
Parkway was obligated under the Contract.
the disagreement between Blackline and Parkway as to the
amount Blackline owed Parkway for the DWV piping replacement,
Parkway executed a lien waiver in return for Blackline
payment of $25, 200 (the "Waiver") on June 16,
2015. The Waiver read:
Contractor/Supplier hereby waives all right, title and
interest to any claim of any kind for payment for its Work
through today's date; including, but not limited to,
claims to a mechanic's or other form of Hen or claim on
or against: (a) the Property or the improvements thereon; (b)
any funds for the Property or the Project, whether held by
the Owner or otherwise; or (c) any funds due or to become due
any higher-tier contractor. This is a partial waiver with
respect to the Work, and Contractor/Supplier expressly
reserves the right to assert claims for payment (including
mechanic's liens) for Work performed after the date
Waiver defines "Work" as labor and/or materials
furnished on or for the Project.
Parkway ceased working, Blackline offered Parkway a check for
$8712.97, which Blackline calculated as the remaining amount
due to Parkway on the Contract after subtracting Blackline
cost of hiring a second subcontractor to complete the job.
Parkway refused to accept the final payment, fearing it would
preclude Parkway from seeking payment relief for the extra
work Parkway performed on the Project. At trial, Blackline
admitted to owing Parkway $1051 for the extra shower-valve
work and $8712.97 under the Contract.
filed a petition against Blackline and Magnolia on March 17,
2016 seeking compensation for the work Parkway completed on
the Project. Parkway included four counts in its petition. In
Count I, Parkway alleged Blackline was unjustly enriched by
Parkway's additional work outside the scope of the
Contract, and thus Parkway prayed for judgment against
Blackline in the amount of $79, 449. In Count II, Parkway
contended Blackline either requested the extra and additional
work or acquiesced, accepted, and retained the extra work
performed, and thus Parkway sought $79, 449 under the
principle of quantum meruit. In Count III, Parkway averred
that it substantially performed its obligations under the
Contract and Blackline breached the Contract by failing to
pay Parkway the remaining $24, 000 due and payable under the
Contract. In Count IV, Parkway argued Magnolia owed Parkway
$100, 569 under a mechanics' lien against the Property.
and Magnolia moved for summary judgment on Count IV. The
trial court granted the motions and dismissed Count IV
because Parkway's statement of the mechanic's lien
was insufficient and unenforceable as it failed to describe
the work performed or identify the labor and materials
Parkway was claiming as subject to the lien. Count IV is not
at issue in this appeal.
3, 2017, Parkway voluntarily dismissed Count III without
prejudice. Although the record is unclear as to when Parkway
requested leave of court to amend its petition to reinstate
its claim for breach of contract, Blackline filed suggestions
in opposition of Parkway's oral motion to reinstate Count
III on May 5, 2017; just two days after Parkway filed its
voluntary dismissal. On May 8, 2017, the trial court granted
Parkway leave to reinstate Count III over Blackline
objection. Blackline requested that the trial court "be
sure the record does reflect that it's a reinstatement of
a dismissed claim and not assertion of a new claim[.]"
The trial court responded, "[y]es. And I believe that
was the oral motion and that is how the order shall
read." The case proceeded to a bench trial.
presented evidence at trial of the money Parkway claimed
Blackline owed related to the work Parkway completed on the
Project. Specifically, Parkway presented evidence that
Blackline originally agreed to pay Parkway $96, 000.
Blackline paid Parkway two installments under the Contract,
totaling $72, 000. Accordingly, Blackline owed Parkway $24,
000 for the Contract work. Parkway also introduced evidence
of the "extra work" costs: the shower-valve work
($1051), the cost to replace the DWV piping beyond the
fifty-percent threshold ($64, 908), fixture costs outside the
Contract ($1600), and basement re-piping ($11, 890). Parkway
introduced evidence that the cost of the "extra
work" totaled $79, 449. Parkway sought $79, 449 in
damages on its equitable claims in Counts I and II, and
damages of $24, 000 in Count III for breach of contract, for
a total damage claim of $ 103, 449.
trial court found in favor of Blackline on Counts I and II.
The trial court found in favor of Parkway on Count III and
awarded Parkway $9763.97 in damages. The trial court then
determined Parkway to be the prevailing party, and awarded
Parkway attorneys' fees totaling $103, 234.31.
trial court noted in its judgment that "[t]his is a
dispute over plumbing services rendered by [Parkway][.]"
The trial court acknowledged the multiple miscommunications
contributing to the dispute between Parkway and Blackline.
The trial court found that, as of the email on May 8, 2015,
Parkway told Blackline that it had already reached the
fifty-percent threshold. The trial court determined that
Parkway "substantially performed its obligations under
the Contract" and awarded Parkway damages of $9763.97 on
Count III. Specifically, the trial court awarded Parkway
$8712.97 as the remaining payment due for the work performed
under the Contract, less the amount Blackline paid the second
contractor to complete the Project after Parkway halted its
work. The trial court also found that Blackline owed Parkway
$1051 for certain "shower-valve work" discussed
during trial, and that Blackline refusal to pay Parkway for
this work constituted a second breach ...