Donovan v. Roth

700 S.W.2d 140, 1985 Mo. App. LEXIS 3747
CourtMissouri Court of Appeals
DecidedOctober 29, 1985
DocketNo. 49382
StatusPublished
Cited by1 cases

This text of 700 S.W.2d 140 (Donovan v. Roth) 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
Donovan v. Roth, 700 S.W.2d 140, 1985 Mo. App. LEXIS 3747 (Mo. Ct. App. 1985).

Opinion

REINHARD, Judge.

The Roths appeal from a judgment for Donovan in the amount of $10,994.50 on his quantum meruit claim and from the dismissal with prejudice of their third party petition against H & B Masonry, Inc., at the close of the Roths’ evidence, for failure to make a submissible case. We affirm.

In Donovan’s quantum meruit action, he alleged that pursuant to a contract with the Roths he provided labor and materials, reasonably valued at $37,058.61, for the construction of their residence, and that $10,-994.50 of that sum remains unpaid. The Roths filed a counterclaim, in which they alleged that: 1) the agreed upon contract price was $65,000, and they had already paid in excess of that amount; 2) Donovan failed to complete the residence in a workmanlike fashion, and it would cost $15,000 to complete the house in accordance with the contract; and 3) Donovan was liable to them for damages in fraud and for breach of warranty. The Roths also filed a third party petition against H & B Masonry, Inc., alleging that the construction contract was between them and H & B Masonry. In Count I they requested reimbursement for any damages they were required to pay Donovan, while in Counts II and III they sought to recover damages from H & B Masonry under a breach of warranty theory and in fraud.

The action was tried by the court. At the end of Donovan’s case, the Roths made a motion to dismiss, and, at the close of the Roths’ evidence, H & B Masonry made a motion to dismiss. These motions were taken under submission along with the case. Ultimately the court overruled the Roths’ motion and dismissed their third party petition with prejudice, holding that they failed to make a submissible case. The court rendered judgment for Donovan in the amount of $10,994.50.

At trial Donovan testified that he was a self-employed carpenter and had worked on numerous houses in that capacity. In late 1979 he was informed by Bob Rottler, the President of H & B Masonry, that the Roths were interested in building an “earth home.” He contacted an architectural firm in Illinois and obtained some floor plans, along with a projection of construction costs. He was reimbursed by the Roths for his expenses in securing the blueprints, but the Roths decided that the estimated cost of the underground home was prohibitive, and elected not to proceed further on that project. A discussion between the Roths and Donovan regarding a conventional home ensued, with Dr. Roth telling Donovan to “keep kind of a figure of $85,-000 in mind” but providing no guidance as to square footage or layout. Donovan prepared a rough floor plan for a residence he said could be built for $85,000, not including finished wall or floor coverings.

Donovan testified further that he was hired by the Roths to perform the carpentry work on the residence diagramed in that floor plan and he began working on it in the Spring of 1980 without a written contract. As construction progressed, the Roths selected a number of unusually expensive features, and requested changes which increased construction costs. Although in most cases Donovan shggested material suppliers and people to perform non-carpentry work on the residence, the Roths made the ultimate choice on those matters. H & B Masonry was selected to provide masonry services on the project.

Donovan explained that it was a common practice for independent carpenters such as himself to obtain construction financing from others in the trade, and in this case he made arrangements with Rottler, the President of H & B Masonry, regarding financing on the project. For a fee, H & B issued weekly paychecks to Donovan, and handled workman’s compensation, unemployment insurance and social security taxes through their records. H & B also paid for some supplies and materials. Donovan testified further that he occasionally used H & B Masonry stationery to submit his bills, and that he was to reimburse H & B for any funds they advanced to him. The Roths made some payments directly to Donovan, while others were made to H & B Masonry or to suppliers.

[142]*142In early 1981, when only a few minor items remained unfinished, Donovan received a phone call from Dr. Roth informing him that the house had cost more than the Roths wanted it to and that he should cease work on the project. Dr. Roth told him to let previously ordered material “come in,” but no additional material should be ordered, and requested that Donovan submit a final bill.

Donovan testified that he had been working as a carpenter since 1973, during which time he had built several houses, that he was familiar with the prices of construction materials, and that the charges made on the Roth project were fair and reasonable.

Dr. Roth testified that one evening Bob Rottler stopped by Roth’s veterinary clinic regarding his dogs. During this visit, Roth mentioned that he and his wife wanted to build an underground or partially underground home, and the two men talked for about ten minutes. Mr. Rottler told him “he was interested and he said ... he had a carpenter that was interested in subterranean-type homes, too.” Roth testified that “I told him we could get together and come up with some plans and see what we could build or at least get some ideas,” and that he asked Rottler to have the carpenter “get in touch with him.” About a week later, Rottler and Donovan met with the Roths to discuss the project, and Donovan said that he would contact a company in Illinois regarding blueprints and projected costs. Dr. Roth was not aware of any involvement by Rottler in procuring this information from the Illinois Company. Donovan relayed the cost estimates and blueprints to the Roths, and, after they decided an underground home was too expensive, he told them he would draw-a rough floor plan for a conventional house. Donovan subsequently met with the Roths to discuss these new plans. Dr. Roth asked him what the project would cost, and Donovan replied, “in the neighborhood of sixty-five to seventy thousand dollars.” Dr. Roth told him to “hold it down as best he could.” No mention was made of floor coverings, although the estimate was for a “finished house.”

Roth testified that while he understood some of the features he and Mrs. Roth sought to incorporate into the structure would entail additional expenditures beyond the original estimate, most of the items cited by Donovan as cost overruns were to be included in the original price figure. Dr. Roth also said that many of the “changes” were suggested by Donovan, and that some were instituted without the Roths’ knowledge. Some other features, included in the original plan, were omitted at the Roths’ request in an effort to decrease construction costs. Dr. Roth testified further that Donovan selected the subcontractors and dealt with most of them himself.

Roth also testified regarding some difficulties and problems that arose during construction. After the basement walls and subflooring were completed, construction ceased from May to July. The subflooring was allegedly left uncovered during this period and exposure to the elements led to warping of the plywood subflooring. It had to be “leveled” before the hardwood floor could be installed, a process accomplished by splitting some floor joists and adding more plywood. At the time the Roths told Donovan to discontinue work, the house was habitable and they were living in it. Dr. Roth testified that he and his wife have paid a total of $96,696.10 in construction costs.

Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
700 S.W.2d 140, 1985 Mo. App. LEXIS 3747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donovan-v-roth-moctapp-1985.