George Weis Co. v. Dwyer

956 S.W.2d 335, 1997 Mo. App. LEXIS 1740, 1997 WL 612986
CourtMissouri Court of Appeals
DecidedOctober 7, 1997
DocketNo. 71192
StatusPublished
Cited by8 cases

This text of 956 S.W.2d 335 (George Weis Co. v. Dwyer) 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
George Weis Co. v. Dwyer, 956 S.W.2d 335, 1997 Mo. App. LEXIS 1740, 1997 WL 612986 (Mo. Ct. App. 1997).

Opinion

PUDLOWSKI, Judge.

George Weis Company (Weis), appeals the trial court’s denial of its motion for directed verdict and judgment notwithstanding the verdict (J.N.O.V.) asserting that it was entitled to judgment as a matter of law. Weis contends that the trial court erred by denying its motions because the respondent, University City School Board and Superintendent (School Board), violated its statutory duty to obtain a “good and sufficient surety” for a public construction project.

In November 1986, University City School District decided to expand two of the dis-triet’s elementary schools. The School Board requested bids for the construction projects, requiring that each bid be secured by a bond as dictated by Section 107.170 RSMo (1986).1 As a result of the bidding process, the School Board contracted with Wellington Building Group, Inc. (WBG) as the general contractor. WBG’s bid indicated it had secured a bond with United Fidelity & Guaranty (UF & G).

During construction on the schools, WBG hired Weis, a drywall subcontractor, to work on a day-to-day basis. Upon completion of the Weis/WBG contract, Weis had been paid $36,779.48 in partial satisfaction of their contract, but $13,483.48 remained due. Having failed to be paid by WBG, Weis attempted to contact UF & G to secure payment. Weis was unable to obtain further remuneration from UF & G because it had ceased operations by that time. UF & G never registered with any state agency in Missouri nor its home state of Texas.

Subsequently, Weis filed suit against the School Board for failure to obtain a bond as required by Section 107.170 RSMo (1986),2 and against WBG for breach of contract. The court dismissed the statutory cause of action against the School Board for failure to state a claim. On appeal from the dismissal, this Court reversed and remanded, holding School Board would be liable for failure to comply with Section 107.170 if a surety did not exist. George Weis Company v. Dwyer, 867 S.W.2d 520, 522 (Mo.App. E.D.1993); Section 107.170 RSMo (1986). On remand, [338]*338the jury returned a verdict for the School Board, finding that a valid surety existed. The trial court denied Weis’s motions for a directed verdict and judgment notwithstanding the verdict. Weis appeals.

“In reviewing a ruling on motions for directed verdict and judgment not withstanding the verdict, the evidence is viewed in the light most favorable to the verdict.” Duren v. Kunkel, 814 S.W.2d 935, 936 (Mo. banc 1991). The prevailing party may benefit from any reasonable inference favorable to the verdict, and any evidence that does not favor the verdict must be disregarded. Garrett v. Overland, Garage and Parts, Inc., 882 S.W.2d 188, 190 (Mo.App. E.D.1994); Lasky v. Union Elec. Co. 936 S.W.2d 797, 801 (Mo. bane 1997). Unless there is a complete lack of evidence to support it, a jury verdict will not be overturned. Miller v. Gillespie, 853 S.W.2d 342, 344 (Mo.App. E.D.1993).

Weis argues the trial court erred by refusing to grant its motions for directed verdict and J.N.O.V. because its evidence shows that, as a matter of law, there was not a valid surety. However, applying the legal standard by disregarding the evidence contrary to the verdict, there is sufficient evidence to sustain the jury’s finding for the School Board.

WBG and UF & G entered into a written agreement on July 14, 1988, purporting to make UF & G the surety for the School Board’s building project. Evidence showed UF & G behaved as a normal bonding company in 1988. UF & G maintained an office in Dallas, Texas, and had paid out on one claim in 1986 in Kansas City from UF & G funds. The testimony of a former head of UF & G indicated that UF & G complied with formalities which tend to show that its bonds were typically backed by valid sureties. UF & G would obtain indemnity agreements in order to protect themselves and to protect individual sureties, and routinely require that individual sureties fill out government forms and submit to credit checks. Sureties would be required to list their spouses in the event that the surety did not properly pay a claim. UF & G would require that the contractor sign an indemnity agreement and WBG did so in this ease. In addition, UF & G sometimes took the responsibility to act as surety on itself. UF & G did not issue a bond unless there were two individual sureties capable of backing the bond, or UF & G had sufficient funds to secure the bond. Finally, it was typical practice for the company to receive referrals from the National Association of Minority Contractors, which had procedures to confirm the viability of the bonding companies it recommended. The evidence was sufficient to infer that the WBG bond was a secured pledge.

The jury found that there was a valid bond entity, but even assuming the facts were not adequate for the jury to find the bonds sufficient, official immunity protects the board from liability. Official immunity protects public officers from liability for judicial or discretionary acts, but not ministerial duties. Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 836 (Mo.banc 1985), Miller v. Smith, 921 S.W.2d 39, 45 (Mo.App. W.D.1996). A discretionary act requires the public officer to exercise reason and judgment. Kanagawa, 685 S.W.2d at 836. On the other hand, a ministerial duty is clerical; an act the public officer must perform “upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed.” Id.

Obtaining a bond is a ministerial duty, and the School Board was under an absolute duty to require a bond as required by Section 107.170. C.A. Burton Mach. Co. v. Ruth, 194 Mo.App. 194, 186 S.W. 737, 737-738 (1916), Section 107.170 RSMo (1986). However, section 107.170 does not prescribe the means by which school board members determine whether a bond is “good and sufficient.” Therefore, accepting a bond is a discretionary act, and the School Board is protected by the doctrine of official immunity. S & W Cabinets, Inc. v. Consolidated School District No. 6 of Jefferson County (Fox), 901 S.W.2d 266, 269 (Mo.App. E.D. 1995). Point denied. Since School Board is not hable to Weis, it follows that Weis’s claim for interest is denied.

[339]*339Weis’s final point asserts that the trial court erred in permitting expert testimony of attorney Michael James on an ultimate issue for the jury. Admission or exclusion of expert opinion testimony is a matter that is in the discretion of the trial court and mil not be distui'bed on appeal unless there has been an abuse of discretion. Donjon v. Black & Decker, Inc.,

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Bluebook (online)
956 S.W.2d 335, 1997 Mo. App. LEXIS 1740, 1997 WL 612986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-weis-co-v-dwyer-moctapp-1997.