Chester Bross Construction Co. v. Missouri Highway & Transportation Commission

84 S.W.3d 149, 2002 Mo. App. LEXIS 1872, 2002 WL 31055493
CourtMissouri Court of Appeals
DecidedSeptember 17, 2002
DocketNo. WD 60646
StatusPublished
Cited by2 cases

This text of 84 S.W.3d 149 (Chester Bross Construction Co. v. Missouri Highway & Transportation Commission) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chester Bross Construction Co. v. Missouri Highway & Transportation Commission, 84 S.W.3d 149, 2002 Mo. App. LEXIS 1872, 2002 WL 31055493 (Mo. Ct. App. 2002).

Opinion

PAUL M. SPINDEN, Judge.

When the Missouri Highway and Transportation Commission refused to pay Chester Bross Construction Company and C.B. Equipment, Inc.,1 for pavement edge treatment that Bross constructed on a highway project, Bross sued the commission for breach of contract. The circuit court granted summary judgment for the commission, and Bross appeals. We affirm the circuit court’s summary judgment.

On March 10, 1995, the commission contracted with Bross to make improvements on U.S. 65 in Benton County. The contract required Bross to construct, if needed, a temporary barricade or gravel slope on exposed pavement edges during the construction to prevent vehicles’ tires from dropping off of the pavement’s exposed [150]*150edge. According to the commission’s standard specifications, incorporated into the contract, Bross could choose between two types of pavement edge treatment: temporary concrete traffic barriers or a “wedge slope” constructed of an “aggregate base material.” Bross chose aggregate wedge slopes.

The contract required Bross to construct wedge slopes of differing grades, depending on the size of the pavement drop-off. In its itemized proposal for bids, the commission indicated the linear footage of pavement edge treatment needed was 25,-951, about one-half of the length of repaving on one side of the road. Bross bid $4 a linear foot for the pavement edge treatment.

Bross constructed a wedge slope pavement edge along the length of the project except for side roads and driveway entrances. Bross later removed and disposed of those wedge slopes so that it could grade out a shoulder for the new pavement. Bross then constructed another wedge slope because of the larger drop-off from the pavement to shoulder base. Bross constructed a total of 194,210 linear feet of pavement edge treatment.

After Bross completed the pavement edge treatment, the commission increased the contract’s quantity of pavement edge treatment to 100,273 linear feet by a change order. The change order indicated that the reason for the increase: “Pvmt edge treatment overran 74,332 lin. ft. because it required end to end and rt and It of pavement after shoulder excavation. Plan quantity was ½ length of project!.]”2 Mike Bross, Bross’ vice president, agreed to the change order.

The contract provided, at Special Provision § 619.4.1, “Measurement of edge treatment will be made to the nearest linear foot for the units actually constructed.” However, the commission’s standard specifications for the project provided these payment terms for the pavement edge treatment:

The accepted quantity of edge treatment will be paid for at the contract unit bid price for the units constructed or the units shown in the contract, whichever is greater. Payment shall include all materials and labor necessary to eliminate the need for [edge treatment] or [to] construct, maintain, replace, relocate, remove and dispose of edge treatment.

Standard Specification § 619.5.1.

Bross received the commission’s third and final change order, and Mike Bross signed it on May 14, 1996. Ten days later, on May 24, Chester Bross, Bross’ president, informed the commission by letter that all the edge treatment that Bross had constructed was not included in the final quantities.

Bross later filed a $375,748 claim against the commission for the remaining 93,937 linear feet of pavement edge treatment that it constructed but for which it had not been paid. The commission denied the claim. The commission decided that the 93,937 linear feet of edge treatment was “reconstruction or actually replacement of edge treatment previously constructed, paid for, removed and then replaced as a result of the construction methods which [Bross] chose to employ.” The commission, therefore, concluded that it did not owe Bross additional compensation for the 93,937 linear feet of edge treatment under § 619.5.1.

Bross sued the commission for breach of contract. Both parties filed motions for summary judgment, and the circuit court [151]*151granted summary judgment for the commission. Bross appeals.

Our review of the circuit court’s summary judgment is essentially de novo. ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371, 376 (Mo. banc 1993). We review the evidence in the record in the light most favorable to the party against whom the circuit court ruled. We endeavor to do this by accepting only inferences in the evidence that favor the party against whom the circuit court ruled. Id. We will not set aside the circuit court’s order of summary judgment if it is supportable on any theory. City of Washington v. Warren County, 899 S.W.2d 863, 868 (Mo. banc 1995). “The theory need not be one raised or argued by either party and may be raised sua sponte by the appellate court, provided the court incorporates principles raised in the petitions.” Id.

Before a circuit court can enter summary judgment, it must determine that the parties are not disputing any genuine issues of material fact and that the party seeking summary judgment is entitled to a judgment as a matter of law. ITT, 854 S.W.2d at 377; Rule 74.04(c)(3). A defending party to a lawsuit who moves for summary judgment need not controvert each element of the plaintiffs’ claim to establish a right to summary judgment:

[A] “defending party” may establish a right to judgment by showing (1) facts that negate any one of the claimant’s elements facts [sic], (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

ITT, 854 S.W.2d at 381 (emphasis in the original). When a defending party makes a prima facie showing that the parties are not disputing any genuine issues of material fact and that he is entitled to judgment as a matter of law, “an adverse party may not rest upon the mere allegations or denials of the party’s pleading, but the response, by affidavits or as otherwise provided in this Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial.” Rule 74.04(e).

The commission asserts that the circuit court’s summary judgment was proper because Bross could not produce sufficient evidence to allow a trier of fact to find the existence of any of the elements of Bross’ breach of contract claim. “Summary judgment is particularly appropriate when construction of a contract is at issue and the contract is unambiguous on its face.” Lupo v. Shelter Mutual Insurance Company, 70 S.W.3d 16,18 (Mo.App.2002); J.H. Berra Construction Company, Inc. v. Missouri Highway and Transportation Commission, 14 S.W.3d 276, 279 (Mo.App. 2000).

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84 S.W.3d 149, 2002 Mo. App. LEXIS 1872, 2002 WL 31055493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chester-bross-construction-co-v-missouri-highway-transportation-moctapp-2002.