Winn-Senter Construction Company v. Katie Franks, Inc., et al., 816 S.W.2d 943, 945 (Mo.App. 1991)

Missouri Construction Law Case Briefs

Aesthetics, Timeliness, and Requirement of Written Change Orders

In the Winn-Senter Construction Company v. Katie Franks, Inc., et al., case, the parties litigated on claims of breach of contract and quantum meruit regarding a construction project on a restaurant.  Mario Scaglia was the sole owner and shareholder of Katie Franks, Inc., and he was sued on a personal guaranty that he signed for the work.

The parties used the American Institute of Architects contract to govern the work performed.

Aesthetics Complaints

Winn Senter alleged that Scaglia ordered $5,438.00 in change order work during the course of the project.  When it came time to pay, Scaglia complained that the tile work around the grill area of the restaurant was unsightly. However, Winn-Senter countered by showing that Scaglia and the architect chose the tiles and decided to use the black grout, which greatly contributed to the questionable aesthetics.

Despite the unsightly finish, the alleged defects did not keep the restaurant from remaining open.

Untimely Completion

Article  4.1 of the AIA contract stated that “substantial completion shall be obtained within one hundred days from plaintiff’s receipt of notice to commence work under the contract.” No written notice to proceed was ever issued, however. In addition, there was a slew of evidence that showed the owner and architect caused delays on the project.

Missouri law holds that “where the owner prevents or hinders performance by the contractor, within the time specified in the contract, any delay by the contractor is excused.” Winn-Senter Construction Company v. Katie Franks, Inc., et al., 816 S.W.2d 943, 945 (Mo.App. 1991); see also Ark Const. Co. v. City of Florissant, 558 S.W.2d 418, 422 (Mo.App. 1974).

The evidence showed that Winn-Senter completed the project somewhere between 118-130 days, but there were a number of extra projects during that time as well.  The original designs by the architect did not have plumbing plans for the bar, so Winn-Senter had to design and install the plumbing.

Further, Winn-Senter had to re-design the bar configuration pursuant to the owner’s request and it had to re-do the grout work on the tile around the grill area because the owner and architect did not approve of its appearance as noted above.

Change Orders for Extra Work Supposed to be Signed and in Writing Per Contract

The AIA contract stated that “the owner would not be responsible for any changes in excess of the stated cost of work unless it was duly executed by Katie Franks, Inc.” The parties did not execute any written change orders, yet changes were carried out on the project.

Katie Franks argues on appeal that the court erred in entering judgment in favor of Winn-Senter on the quantum meruit theory because no written change orders were executed by Katie Franks.

The general rule is when a construction contract requires a written change order, there is no right to recover for extra work without such a writing or waiver by the owner. Herbert M. Brooner Const. Co. v. Golden, 499 S.W.2d 541, 547 (Mo.App.1973). A waiver of a written change order may be shown by presenting evidence the parties have orally agreed upon the “extras” and the “extras” have been supplied pursuant to this agreement. Meadows v. Kinser, 603 S.W.2d 624, 626 (Mo.App.1980). Winn-Senter Construction Company v. Katie Franks, Inc., et al., 816 S.W.2d at 945.

The court found that the owner, Katie Franks, instructed Winn-Senter to perform the work. However, Scaglia testified that he only requested extra work in the amount of $1,560.00.

Waiver

Missouri law states that “habitual acceptance of extra work done on oral change orders in connection with a contract and payment therefore results in a waiver of any contract clause providing that no claims for extra work or material shall be allowed unless the same be pursuant to a written change order.” Winn-Senter Construction Company v. Katie Franks, Inc., et al., 816 S.W.2d at 946; see also  H.B. Deal Const. v. Labor Discount Center, Inc., 418 S.W.2d 940, 950 (Mo. banc 1967); Julian v. Kiefer, 382 S.W.2d 723, 729 (Mo.App.1964).

The Winn-Senter court held that the acceptance of work by Katie Franks and Scaglia constituted a waiver to requiring written change orders.

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