Jefferson City Retirement LLC (“JCR”) appealed from the circuit court’s judgment in favor of Twehous Excavating Inc. on its claims for breach of contract and quantum meruit. JCR contended that the court erred in granting Twehous’s relief on both claims because the claims were mutually exclusive and inconsistent as a matter of law.
However, the Missouri Appellate Court affirmed the judgment, stating that the claims are not mutually exclusive.
In 2013, JCR began building a retirement and assisted living community on property it owned in Jefferson City, Mo. JCR hired Omni Construction Co. Inc. as the general contractor on the project. Omni entered into a subcontract agreement with Twehous to provide excavation work under Omni’s direction.
JCR terminated Omni as the general contractor. When Omni was terminated, $91,653.50 was being withheld from Twehous. After JCR terminated Omni as the general contractor, it requested Twehous to complete the work that was due under the subcontract agreement. JCR also asked Twehous to perform additional work on the project beyond the work provided in the subcontract agreement.
“Twehous agreed to finish the work provided for in the subcontract agreement and to perform additional work as directed by JCR on a time and material basis. Twehous performed the work, and JCR paid the amounts billed on a time and material basis, less retainage.” When Twehous demand final payment, JCR advised Twehous that it was in arbitration with Omni and that JCR’s resources for money were tapped out until it recoups its costs from Omni.
The trial court found in favor of Twehous on both breach of contract and quantum meruit claims. The court found that, under either theory of recovery, the principal amount owed was $98,550.65. JCR argued that the two claims are mutually exclusive and inconsistent as a matter of law, and Twehous is required to elect its theory of recovery.
JCR argued that the court’s finding in favor of Twehous on both claims and its finding that Twehous was entitled to the same damages on both claims allowed Twehous a double recovery. JCR was correct, the appellate court stated, that a party “is not entitled to be made more than whole or receive more than one full recovery for the same harm.” Davis v. Clearly Bldg. Corp., 143 S.W.3d 659, 670 (Mo. App. 2004). In its judgment, the court stated that the damage under the two theories of recovery were the same. Therefore, the damages merged into one award and thus appellate court affirmed the trial court’s judgment.
Twehous Excavating, Inc. v. Jefferson City Retirement, LLC, No. WD 83547 (Mo. App. W.D. 2020).
Kreisman Law Offices has been handling breach of contract lawsuits, jury trials, state and federal appellate work for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 45 years in and around Chicago, Cook County and its surrounding areas, including Aurora, Bensenville, Zion, Waukegan, St. Charles, Glendale Heights, Maywood, Cicero, Oak Lawn, Burbank, Palos Park, Oak Forest, Olympia Fields, South Holland, Northfield, Westchester, Schiller Park, Chicago (Wrigleyville, Hyde Park, South Shore, Bronzeville, Albany Park, Andersonville, Ukrainian Village, Buena Park, Uptown, Edgewater Beach, Hollywood Park, West Ridge, Jefferson Park, Belmont Cragin, Galewood, Austin, Humboldt Park), Oak Park, Maywood, Melrose Park, Berkeley, Hillside, Lake Zurich and North Riverside, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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