Ozark Skyways, Inc. v. Bomark Steel Structures, Inc.

647 S.W.2d 170, 1983 Mo. App. LEXIS 3082
CourtMissouri Court of Appeals
DecidedJanuary 31, 1983
DocketNo. 12279
StatusPublished
Cited by2 cases

This text of 647 S.W.2d 170 (Ozark Skyways, Inc. v. Bomark Steel Structures, Inc.) 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
Ozark Skyways, Inc. v. Bomark Steel Structures, Inc., 647 S.W.2d 170, 1983 Mo. App. LEXIS 3082 (Mo. Ct. App. 1983).

Opinion

FLANIGAN, Presiding Judge.

This litigation arises out of the faulty construction of an airplane hangar at the Springfield Municipal Airport. In May 1977, plaintiff Ozark Skyways, Inc., (Sky-ways), entered into a written agreement with defendant Bomark Steel Structures, Inc., (Bomark), whereby Bomark was to construct the hangar, for a price of $27,635, on land leased by the city of Springfield to Skyways.

The plans and specifications for the hangar required a subsurface depth of 30 inches for the foundation beneath the rolling doors which were located on the north and south sides of the building. In violation of that requirement, Bomark constructed the foundation in accordance with a modified plan (set forth in Skyways’ Exhibit 3-a — “the 3-a plans”), and the actual foundation had a depth of approximately eight inches.

In April 1978, after the hangar had been constructed, Skyways and Bomark entered into another written agreement. That document recited that disputes had arisen between the parties concerning “the quality of said construction work including, but not limited to, satisfactory operation of all the hangar doors.” The agreement recited that one-half of the contract price had previously been paid and that of the remaining half ($13,817.50) $9,817.50 would be paid to Bo-mark upon the latter’s furnishing Skyways lien waivers and an affidavit. That payment was made. The balance, $4,000, was to be held by Skyways for a period of one year and “if, after April 24, 1979, all of the hangar doors have worked and are still in satisfactory working order,” the $4,000 was to be paid. The agreement further provided that if one or more of the hangar doors did not work properly, Bomark agreed “to repair or replace, at Bomark’s expense, any deficiency and make any necessary changes upon being notified by Skyways as promptly and as soon as possible.”

Skyways experienced difficulty with the north doors and the south doors. The major problems with the doors were encountered in the winter months beginning in the winter of 1977-78 and continuing through 1979-80. The defects required that the north doors be left closed and the south doors be left open. In October 1979 Sky-ways brought this action against Bomark, seeking $15,000. The petition alleged that Bomark had breached the May 1977 agreement and had erected the building “in an unskillful and negligent manner so that shortly after its completion the foundation settled, hangar doors failed to work, and the building was and is untenantable and nearly useless.”

Bomark’s answer admitted the signing of the May 1977 agreement and generally denied the other allegations of the petition. The answer also pleaded, as one of nine “affirmative defenses,” that plaintiff “has failed to join an indispensable party.” As a counterclaim Bomark pleaded that Skyways still owed $4,000 on the contract price for which, together with interest, Bomark prayed judgment.

Thereafter, on motion of Skyways, the city of Springfield was added as a party defendant. The city filed an answer directed to the petition although the petition made no claim against the city and requested no relief from it. Neither the city nor Bomark requested relief from each other and no cross-claim was filed.

Sitting without a jury, the trial court found in favor of Skyways and against Bo-mark on the petition and awarded Skyways $9,688 subject to a $4,000 credit in favor of Bomark, which was the balance due on the contract price. Thus the judgment, in effect, awarded Bomark relief on its counterclaim. The judgment further recited that the city of Springfield “is to be dismissed [172]*172and discharged without cost, having requested no other relief.” Bomark appeals.1

Bomark’s first point attacks the following finding of fact made by the trial court: “that frost heaving has definitely occurred in the building in question and (unless corrected) will in the future occur which will result in further damage to the building.” Bomark claims that the foregoing finding is not supported by the evidence. In support of its first point Bomark argues that there are inconsistencies in the testimonies of two experts who testified for Skyways. The experts were Saul Nuccitelli and Windsor Warren.

“Where, as here, the testimony of a witness, even though not altogether consistent, is not inherently contradictory, it must be considered as an integrated whole.” Odum v. Cejas, 510 S.W.2d 218, 225 (Mo.App.1974). When the evidence is scrutinized in light of that principle, Bomark’s first point fails.

Witness Nuccitelli, whose expert qualifications were conceded by Bomark, testified that when moisture in soil changes from a liquid to a solid state, it expands and causes “frost heave.” To protect building foundations against the effects of frost heave, the generally acceptable foundation depth in Southwest Missouri is at least 30 inches. According to Nuccitelli, the foundation constructed by Bomark pursuant to the 3-a plans “would be and definitely could be subjected to frost heave.” Such foundation was “not sufficient to prevent frost heaving,” “not good enough to meet necessary requirements on frost heaving.” Nuccitelli also testified that “I know that frost heaving has occurred,” and that the 3-a plans were “an unacceptable design.” The problems resulting from frost heaving became “progressive.” There is a “continuous aggravation” of the problem which will cause “continuous deterioration of the building.”

Expert Warren testified that the 3-a plans were not “structurally sound” and that “frost heaving will occur with regard to the entire structure.” Warren said that the amount of frost heaving would depend upon certain variables presented to him hypothetically by Bomark counsel on cross-examination. Warren testified that the difficulties with the use of the doors, which had been experienced by Skyways employees, were one indication of frost heaving, “objective physical evidence of frost heaving.”

Bomark itself introduced the deposition of witness Ted Burris, in which Burris testified, under interrogation by Bomark counsel, that he had observed “that our floors are badly cracked” and “there are cracks in the grade beam,” and that those are “objective signs of frost heaving.”

Bomark’s first point has no merit.

Bomark’s second point attacks the following finding of fact made by the trial court: “that the change in the plans made by Bomark has resulted in a structurally inadequate building.” Bomark argues that “the evidence failed to establish any damage to Skyways as a result of any inadequacies in that no deterioration of the foundation had occurred and any defect in the operation of the doors had been corrected.”

Although there was evidence that some repair work done by Bomark upon the south doors had improved their operation, Nucci-telli testified that in spite of those repairs, there was a “very great problem of frost heaving in this building.” It was his testimony that the problems would increase in the future and that there would be a “continuous deterioration” of the building. Witness Warren testified that the foundation, if constructed according to the 3-a plans, was not “structurally sound,” and that “you are going to have frost heave and eventual cracking of the foundation and of the door tracks regardless of how many times you shorten the doors and fix the doors.” Bomark’s second point has no merit.

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Related

Goff v. Case
17 S.W.3d 574 (Missouri Court of Appeals, 2000)
Havens Steel Co. v. Randolph Engineering Co.
613 F. Supp. 514 (W.D. Missouri, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
647 S.W.2d 170, 1983 Mo. App. LEXIS 3082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ozark-skyways-inc-v-bomark-steel-structures-inc-moctapp-1983.