Tag Archives: St. Louis Construction Law

Missouri Construction Law FAQs

Attorney Answers Common Construction Law Questions

St. Louis Attorney Answers OSHA FAQs

OSHA Books

What Laws Govern Missouri OSHA Violations?

There are 28 states that have worked with the U.S. Department of Labor (Occupational Safety & Health Administration) to prepare an OSHA-approved state plan. Missouri, however, was not one of those 28 states.  Because Missouri has not provided a plan that has been approved, OSHA federal laws and regulations are directly applicable to Missouri construction projects.

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Who is Subject to OSHA Regulations?

Contrary to typical belief, are not limited to work performed by public entities or work performed on a public project. OSHA regulations extend to private sector employers, contractors, construction companies and other employers performing work that requires safety for its workers. The imposition of OSHA regulations on private sector employers either comes through an OSHA program set up by the federal government or a plan that has been prepared by the state and approved by U.S. Department of Labor – Occupational Safety & Health Administration.  A number of states have approved plans (about 28), but Missouri is not one of the states that has an approved OSHA plan. Therefore, Missouri utilizes the United States OSHA plan and is governed by the federal regulations set forth in the Code of Federal Regulations.

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What are a few Important Details Regarding OSHA Inspections?

  • An inspection for OSHA violations could occur at anytime. OSHA will not call and give you forewarning.  The investigations are sometimes conducted on the spur of the moment, so do not be expecting advanced notice before an OSHA inspector arrives on one of your projects.
  • There are different types of investigations conducted by the OSHA inspectors. At times the inspector will be physically present and will conduct an on-site inspection.  At other times, if the circumstances lend to it, the OSHA inspector will conduct an investigation via phone or facsimile.
  • The OSHA inspectors who conduct the investigations on behalf of the Occupational Safety and Health Administration are well-versed in the regulations. These officers are trained in the regulations, are experienced in working on jobsites, and know the ins and outs of compliance. It will be difficult to hide any violations, so the best course of action is to know the OSHA regulations and comply with the same.

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What Types of Things are OSHA Inspectors Looking For?

Whenever an OSHA inspector visits a job site, the inspector has a checklist that he scours to ensure that the employer is in compliance with the regulations. There is an endless list of OSHA regulations, so where does the employer begin to avoid these claims? The following is a short list of the highest priority items on the OSHA inspector’s violation list:

■    Imminent danger

When an OSHA inspector walks onto the job, they’re looking for a situation where a worker is in imminent danger of bodily harm or injury.

■    Catastrophes / fatalities

It should be no surprise that a catastrophe or a fatality on a construction project may prompt an investigation by OSHA.  When the inspector arrives at your workplace, the focus will be on the instrumentality, or lack thereof, that caused the catastrophe or fatality.  However, the inspector will already be out on the job and will thoroughly inspect all work being performed, as well as the job site in general, to ensure OSHA compliance.

■    Worker complaints and referrals

When a worker makes a complaint to OSHA about his or her safety on a job site, OSHA takes on a duty to inspect the employer’s operations to assure that all regulations are being followed.

■    Targeted inspections – high injury/illness rates, severe violators

If a jobsite has an inordinate amount of injuries or occurrences that subject the workers to injury, OSHA is going to be all over the jobsite scrutinizing any potential cause.  When OSHA has been informed that something is wrong on the project, they will come to investigate and specifically target whatever they believe the root of the problem is.  This is what’s commonly referred to as a targeted inspection. As an employer on a construction project, you need to find the root of the problem before the OSHA inspectors do. If you need legal counsel in preventing OSHA violations, contact an OSHA regulations attorney.

■    Follow-up inspections

Whenever there are violations on one of your jobs, the inspectors will usually follow up the with a subsequent inspection to ensure that the OSHA violations were remedied.  These inspections are usually aimed at the specific violations that previously occurred, so the employer should be aware of exactly what the OSHA inspector will be investigating.

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How is an OSHA Phone or Fax Investigation Conducted?

If the alleged OSHA violation is seemingly minor in the eyes of OSHA, then the administration may simply conduct an investigation via telephone, followed up by a fax detailing the investigation.

If an employer is prompted with such an investigation, time is of the essence.

OSHA requires that the employer respond within 5 working days in writing.  The response must include the problems that the employer was able to discern, and the employer must detail the corrective actions taken to rectify OSHA’s concerns.

3 Defenses Missouri Construction Lawyers Can Assert in Consumer Cases

Hammer and nails

Defending Missouri Merchandising Practices Act Claims

Any contractors who work on residential property will inevitably have to deal with a difficult customer at some point in their career.

The customer may raise various issues about your work. like complaining about whether the work is defective or not, the aesthetic appeal, and a garden variety of other issues that arise in these situations.   

In the event that a consumer, or “putative consumer,” brings a claim against a contractor on the basis of the Missouri Merchandising Practices Act, the contractor’s attorney should know several defenses to protect the client from such claims.  

This article was designed to provide a few but certainly not all, common defenses used by a contractor in a Missouri Merchandising Practices Act claim case.  

The first defense deals with the issue of damages.

1.No ascertainable damages – the work was not defective, or even if it was defective, no damages resulted

One of the elements of a Missouri Merchandising Practices Act claim is that the damages need to be ascertainable.  Oftentimes the homeowner may be unpleased with the work product of a contractor, but the homeowner will not have actually incurred damages.  

The homeowner’s dissatisfaction with the aesthetics of a contractor’s work product might be an example of an area that may not cause the homeowner actual damages.

This is not always the case, however, as it may be a question of fact for the judge or jury to make a judgment call on as to what the contract says regarding aesthetics and/or whether the work was performed in a good and workmanlike manner.   

Another situation where the homeowner may not incur damages is if a contractor performs defective work on a project but subsequently remedies that defective work.

In any event, the damages element of the Missouri Merchandising Practices Act is a susceptible place which your lawyer should consider attacking in the event you are sued in these types of situations.

2. Superseding/Intervening Force (i.e., third party) caused damages

If the contractor was not the cause of the damages, then obviously the consumer’s claim is subject to attack.  This is a common defense as many projects consist of a slew of different people working on the job simultaneously.  

The work performed by one contractor may cause damage to or adversely affect the work of another contractor.  In these situations, the superseding/intervening force (another contractor) can be a defense to a Missouri Merchandising Practices Act claim.  

Depending on the language contained in the contract, acts of God may also relieve a contractor from contractual duties.  As this defense is specific to the factual circumstances, and in particularly the language in the contract, each case needs to be individually assessed.  

If you have a question about a construction law case, please feel free to contact one of our attorneys.

3. The construction work was not for personal, family, or household purposes

If you’re working on a residence, you still cannot be sure that the residence is owned by a consumer.  This element must be proven by the alleged consumer.  

However, when a project has commercial aspects or when the owner of the property, even if it appears residential, is a commercial entity, you may have a defense to a Missouri Merchandising Practices Act claim.

One example of a susceptible area of attack would be work performed on a rental home. Often times limited liability companies will own rental homes and will have a contractor perform work on their property.  

If you are a construction company defending a consumer protection act claim, you should always check the deed of the property and be cognizant of the entity that is making the payments.

Depending on the factual circumstances, a lawyer defending one of these cases may be well-advised to assert a defense attacking the personal, family, or household element.  

Conclusion: Contractor Defenses Against Consumers on a Construction Project

This article gives a few defenses that you can assert as a contractor if you’re caught in the middle of a consumer protection case.  There are other defenses out there, but you should always consult an experienced construction law attorney when preparing your defense in a case.  

The following is a list of the three potential defenses discussed in this article:

  • No ascertainable damages – the work was not defective, or even if it was defective, no damages resulted
  • Superseding/Intervening Force (i.e., third party) caused damages
  • The work was not for personal, family, or household purposes

Depending on the facts of your case, these defenses could be your liability shield. Your lawyer should be aware of these defenses and, more importantly, should assert them in any applicable cases.  

If you need help with defending a construction defect case or other construction project defense case, contact a construction law attorney here.

St. Louis Construction Contract Attorneys

Federal Courthouse and St. Louis Arch Construction Contract Litigators

Our firm deals with construction contracts on a regular basis.  Nearly all work performed on a construction project is carried out pursuant to a contract with the owner, contractor, subcontractor, or some other party on the project.  

The purpose of the contract is to govern the relationship between the entities and determine the duties and obligations that the contract imposes upon said parties. That’s why when problems occur on the project, you need to know the terms of the contract.  You also should have a lawyer review or draft your contract before beginning a project.  

The lawyer can explain your rights to you, and help you understand your responsibilities on the job.

Assistance with Construction Contracts

In order to protect our clients on a project, our construction law attorneys provide the following assistance with contractual matters:

      1. Reviewing
      2. Drafting
      3. Negotiating
      4. Litigating

The above list is just an example of a few areas where we can help.  If you need any assistance with contracts on a construction project, please contact an attorney at our office, and we can help you sort through any issues.

Answering your Construction Contract Law Question

Issues almost always arise on a construction project.  Sometimes Contractors wonder whether they are supposed to pay for the issue or whether someone else should be footing the bill.  The contract almost always governs these situations.

That is why it is critical to know and understand the terms of your construction contract. On big construction projects the contracts can be quite extensive with voluminous amounts of legalese that can be difficult to understand.

Our construction law attorneys can sort through that dense language and advise you as to how you should best proceed on the project.  Make sure that you know your rights if you’re working on a construction project, and consult with an attorney.

If you have a question about whether your contract is in compliance with Missouri law or whether certain clauses should be added or struck to protect your interests, contact one of our St. Louis Construction Lawyers today.

Other Types of Contracts Our Attorneys Draft and Litigate

Acquisition Agreements
Agent or Agency Agreements
Amendments or Modifications to a Contract
Asset Purchase Agreements
Bill of Sale
Broker-Carrier Agreements
Broker (Real Estate) Agreements
Business Contracts
Change Orders
Confidential Disclosure Agreements (CDA)
Construction Contracts
Unit Price Contracts
Lump Sum or Fixed Price Contracts
Cost-Plus Contracts
Time and Material Contracts
Incentive Contracts
Guaranteed Maximum Price Contracts
Percentage of Construction Contracts
Contract for Building & Sale of Residential Property
Deed of Trust
Employment Agreements
Equipment Use Agreements
Exclusive Limited Buyer’s Agreements
Forbearance Agreements
Guaranty
Independent Contractor Agreement (ICA)
Lease Agreements
Master Services Agreements
Memorandum of Understanding (MOU)
Mortgage
Non-Compete Contracts
Non-Disclosure Agreements  (NDA)
Operating Agreements
Partnership Agreements
Personal Guaranty
Prenuptial Agreements
Professional Services Agreements
Promissory Note
Power of Attorney
Purchase Order
Real Estate Contracts
Sale of Goods Contracts
Sales Commission Agreements
Security Agreements
Service Contracts
Settlement Agreements
Subordination Agreements
Transportation Agreements

Also, check out our article regarding 7 Provisions that Should be in Every Construction Contract

3 Safeguards Consumers Have Against General Contractors

Tape Measure

Consumer Protection in a Construction Law Case

Most people get their homes remodeled or perform some type of addition or other construction project on their homes. This is just a part of life, and it usually signifies moving up the ladder.  However, most people do not anticipate that a contractor will destroy their kitchen or use poor craftsmanship when repairing a roof, which causes substantial water damage to the home.  

In these situations, most people don’t know what to do.  They spent most of their reserve cash on the remodel. They have never been involved in a lawsuit, and they don’t know what to do.  

This article was written by a St. Louis Construction law attorney and was meant to address the issues described above and talk about some of the benefits that consumers have in a situation like that.

While it seems like a tough road, and perhaps will be, consumers do have certain advantages when a construction project goes south in Missouri.

1. Jury usually sides with the little guy & awards big damages

The U.S. Department of Justice (“USDOJ”) conducted a 2005 study on damage awards in cases in the state courts throughout the United States.

The USDOJ found that juries awarded an average of $74,000 in contract cases versus a petty $25,000 when the case was decided by a judge. http://www.bjs.gov/content/pub/ascii/cbjtsc05.txt

Many members of a jury decide a case based on emotion, regardless of whether it is a construction law claim or not.  

They’ll ask themselves what would be a fair outcome, but they’ll also consider the financial positions of the parties involved. Often times, a construction company has a lot of money and can overpower a consumer.  

The jury can see this and will account for this factor, usually empathizing with the little guy.  This fact alone makes it extremely important to hire a well-versed St. Louis construction lawyer, so you don’t fall victim to the caprice of the jury.  

A good construction lawyer will usually be able to preclude evidence that leads to the financial status of the company involved in the proceeding.  To the contrary, a good construction law attorney who represents a consumer may be able to expose this fact and capitalize on it with the jury.  

In any event, it is important to know that that when you deal with a jury, it is always a roll of the dice because of the emotional factor.  

Construction companies have to ask themselves whether they are willing to bet the business on the litigation.  A good lawyer can advise the construction companies as to the proper way to proceed in such instances.

To make an example of the contrary, a good construction law attorney representing a consumer will play the jury’s emotions by telling a captivating story, keeping the jury’s attention and swaying their emotions.  

For those reasons, choosing the right attorney to represent your company, or you as a homeowner, is critical, especially if the stakes are high.

The next question you might ask yourself then, is how am I going to afford a good St. Louis Construction lawyer?

The answer is: your construction lawyer could potentially be free…

2. Attorneys Fees Could be Paid for Under the Missouri Merchandising Practices Act

The Missouri Merchandising Practices Act (“MMPA”) is an act in Missouri that allows for attorney’s fees to the prevailing party (at the court’s discretion).  

R.S.Mo. 407.025, denominated the Merchandising Practices Act, states the following:

The court may, in its discretion, award punitive damages and may award to the prevailing party attorney’s fees, based on the amount of time reasonably expended, and may provide such equitable relief as it deems necessary or proper.

http://www.moga.mo.gov/mostatutes/stathtml/40700000251.HTML

Beware and note, the phrase: may award to the prevailing party attorney’s fees…  

First, the term may means discretionary, and in practice, the Court decides attorney’s fees under the MMPA. So really whatever the court believes the outcome should be.

Also, to the prevailing party: this makes it a high stakes game because the loser could end up footing two attorneys’ bills.

Missouri courts are supposed to take into consideration the purpose of the statute, which is typically lenient toward consumers, thus giving the consumers more incentive to pursue their claims against the contractors.

There’s also the underlying goal of reaching an equitable result, which means that the more egregious the case is–for example if a contractor tries to scam a consumer–the more likely the court will award attorney’s fees.

In order to pursue attorney’s fees, you first must have expenses from an attorney first–this is the difficult task, but you may be able to arrange a contract with the attorney to help you survive the litigation process from a financial standpoint (with the hopes or expectation that you will ultimately recover attorney’s fees).

3. Construction Law Cases under the MMPA are Fairly Easy to Prove

Usually a consumer case is fairly easy to prove in the context of a construction law proceeding.  

That’s because there are four elements in a Missouri Merchandising Practices claim (consumer construction law claim), and many of them, by the the nature of the MMPA elements, are already proven (or stipulated to) in a construction law case.

The elements of the MMPA relating to construction law are roughly the following:

  1. The homeowner purchased merchandise from the general contractor
  2. The purchase was for personal, family, or household purposes
  3. The homeowner suffered an ascertainable loss of money or property
  4. The loss occurred as a result of an unlawful act under the Merchandising Practices Act.

Below, each element will be discussed:

A.The homeowner purchased merchandise from the general contractor

Merchandise is defined in the Missouri Revised Statutes section 407.010 as “any objects, wares, goods, commodities, intangibles, real estate or services”.

Services is the key word in the statute.  Any general contractor hired by a homeowner is providing services.  That alone satisfies the first element.  

B. The purchase was for personal, family, or household purposes

This is an easy element to satisfy as well.  One of the few difficulties that may arise is if the home upon which the general contractor is working happens to be a rental home.  Otherwise, the work being performed on the home is clearly for personal, family, or household purposes.  

C. The homeowner suffered an ascertainable loss of money or property

This element again is easily satisfied if the contractor screws up your home.  The money that you spent on the renovation or construction project was basically just wasted on the contractor’s failed performance.  

If the contractor did not cause a loss of money or property against the contractor, then the homeowner has no business bringing the lawsuit in the first place.  Accordingly, suffering an ascertainable loss of money or property is yet another element that a homeowner can prove by showing that the work was not performed according to the contract or that it was not performed in a good and workmanlike manner.  

Usually in a trial, this element can be proven through a subsequent contractor who came to perform the repairs or to provide an estimate regarding what it takes to repair the defective work.

D. The loss occurred as a result of an unlawful act under the Merchandising Practices Act

The following is a list of unlawful acts that can be committed under the Missouri Merchandising Practices Act:

  • deception
  • fraud
  • false pretense
  • false promise
  • misrepresentation
  • unfair practice
  • concealment of a material fact
  • suppression of a material fact
  • omission of a material fact

This is by far the most difficult element of the MMPA that a homeowner has to prove. Most attorneys will argue that defective work under a contract is merely defective work, and perhaps breaches the warranty that each construction contract imposes: the duty to perform the work in a good and workmanlike manner.  

The lawyer will continue to arue: “without some conscious, intentional misrepresentation, all the homeowner has is a breach of contract claim.”

However, Missouri law has been pretty clear that in an MMPA claim, the conduct of the actor is what is the most important.  

Thus, the rebuttal argument from opposing counsel (homeowner’s attorney) becomes the following: “the contractor made representations to the homeowner that he was competent and experienced in performing the renovation work, but the contractor either (1) did not have the experience and competence as represented or (2) committed an unfair practice by cutting corners to save money when the contractor knew the procedure to perform the work properly.

Accordingly, many homeowners, despite all odds seemingly stacked against them, do have a legitimate chance in a battle against a big construction company.  

In order to fully protect these rights, you should always contact a competent construction law attorney in St. Louis.  

Conclusion as to Why Construction Law Cases are Teed up for Consumers

This article told you 3 reasons why consumers may have an advantage in a Missouri construction law case.  

  1. The jury usually sides with the consumer because they feel empathy for that person or for the family suffering from the shoddy work.
  2. Attorney’s fees are a potential threat to the contractor–beware, however, attorney’s fees could be imposed against the consumer, but such cases are rare
  3. Elements of the claim (MMPA) are fairly easy to prove

While it may seem like a daunting task for a consumer to fight against a big construction company, we have St. Louis construction law attorneys that will help you fight back.  

We know construction law well, and we know how to protect consumers from these terrible situations.  

Please contact our lawyers if you are faced with a situation like this.  Our lawyers have handled numerous cases like this in the past, and we are happy to discuss your case with you.  

Contact a St. Louis Construction Lawyer here.

5 Ways to Collect Payment on a Missouri Construction Project

Do Not Enter Construction SignGeneral Discussion about the Collection Process

There are numerous ways to collect payment if you are a contractor owed on a construction project in Missouri.  This article will tell you the five most commonly used methods of collecting when an owner or general contractor fails to pay on a project.  

1. File a Mechanic’s Lien

The first, and perhaps most powerful, way of collecting on a Missouri construction project is by filing a mechanic’s lien statement.  Most contractors will attempt to do this on their own.  While a handful of the do-it-yourself liens that are filed may withstand attack, the majority of the mechanic’s liens filed pro se can easily be vitiated with the basic mechanic’s lien defenses.  

See the article called 4 Defenses to Mechanic’s Liens in Missouri for more information on defending or properly filing a lien in Missouri.  

2. Make a Bond Claim

Not all projects have bonds, but when a bond exists, it acts almost as insurance on the project.  Public works projects almost always require a bond because a governmental entity is the owner on the project, and it would incredibly debilitate that governmental entity’s credibility and image if a contractor were able to lien up the government owned property.  

For example, if an electrician performs work on the city hall building and is not paid for the work performed, the electrician would put a mechanic’s lien on city hall.  In order to prevent

3. Make a Breach of Contract Claim

Even if your lien is invalid or you did not properly preserve your lien rights, you still likely have a claim for breach of contract on a construction project.  Usually construction projects are of a significant enough magnitude to warrant a written contract.  

However, occasionally contractors who are trying to keep the job informal or are “old school” will not sign a written contract that lays out the scope of the work and/or terms and conditions of the contractual agreement.  

Are oral contracts enforceable on a construction project?

As a lawyer, a question that we are often asked is whether an oral contract on a construction project is enforceable. The general answer is yes.  There are certain contracts that are required, by Missouri law, to be in writing.  

4. Make a Quantum Meruit Claim

Quantum meruit basically means whatever is deserved or whatever it’s worth.  It’s a claim based in equity as the policy behind a quantum meruit claim is to effectuate a fair outcome for the parties. For example, if work is performed for someone, it is only fair that the person receiving the work, pay the fair value for that work.  

A quantum meruit claim is secondary to a contract claim.  Some lawyers use it as a catch-all in the unlikely event that the court finds the contract invalid.  Although there would no longer be a valid claim for breach of contract, fairness would dictate that the contractor should be paid in a manner commensurate with the amount of work performed.  

5. Make a Missouri Prompt Payment Act Claim

Last but not least, and perhaps the biggest hammer in collecting on a construction law case: The Missouri Prompt Payment Act.  This is one of the best ways to collect because it comes with interest at a rate of 18% per annum.

That means 1.5% per month.  The statutory interest rate in Missouri is 9%, so this is double the regular statutory rate.

In addition to the elevated interest that a claimant can obtain, the claim also comes with reasonable attorney’s fees.  

This is a major threat for a non-paying contractor or owner as they not only risk paying the full amount for the work performed, there is a significant amount of fees and interest racking up.  

The Missouri Prompt Payment Act provides for certain amounts of time in which the contractor has to make payment of an undisputed amount.  

If the owner or contractor does not make payment within that time period, interest will start to accrue (assuming the claimant has complied with all documentation submission requirements as well as the other contractual obligations.

See 3 Benefits the Missouri Prompt Payment Act Provides Contractors for a more detailed discussion of the Missouri Prompt Payment Act.  

Conclusion

There are a number of ways to get paid on a construction project. You just learned about five different ways above.

The following is a recap of the different methods a contractor or subcontractor can use to get paid on a construction project:

  1. File a mechanic’s lien
  2. Make a bond claim
  3. Make a breach of contract claim
  4. Make a quantum meruit claim
  5. Make a Missouri Prompt Payment Act claim

You’ve learned the starting points for collecting, however there are certain procedural obstacles and technicalities when pursuing any of these claims.  You would be well-advised to consult an attorney if you plan on utilizing any of these methods.  

If you have more questions about collecting for work performed on a construction project, please feel free to contact our St. Louis construction law attorneys with questions.

General Overview of Missouri Construction Law

Construction Law Explained

No country in the world can prosper without the proper infrastructure.

Infrastructure refers to the fundamental need of a network of roads, bridges, telecommunications, water supply, airports and airways, hospitals etc. which helps the economy function.

Construction is the industry that plays a key role in providing this infrastructure.

Construction itself can be broadly defined as the process of planning, designing, financing, developing, and building something (whether that be a house, road, or dam).

In today’s age, the Construction Industry accounts for 6 to 9 percent of the total GDP of all developed countries. There is a lot of money being exchanged in the construction law industry, and for that reason, its important to know your rights on a construction project.

This article was meant to provide a general discussion about construction projects in general

Components of a Construction Team

Construction can sometimes be a complex process.  It requires the involvement of a whole team of people working together.

Some think it just involves engineers and architects and a contractor. However, its not limited to these few people. There’s a whole human resource behind it.

There are numerous people that make up a construction team, which include:

  • project manager,
  • architect,
  • construction engineer,
  • finance manager, and
  • a construction lawyer.

My role as an attorney is to protect contractors rights, so rather than discussing all the components of a construction project, this article and the other articles on this website will hone in on the legal aspects, contractual negotiation and disputes, collection efforts, and common pitfalls that occur during construction projects.

Construction Law

The law deals with nearly every matter that touches a construction project.

The following are a few examples of commonly litigated construction law matters:

  • disputes regarding the compliance with specifications and design in the construction of a building,
  • the duties and obligations of the electrician pursuant to the contract,
  • construction defect claims, breach of contract, and/or
  • negligence on the project either in failure to comply with the contractual specifications or negligently causing injury on the project.

While the range of coverage regarding construction law is quite expansive, it makes the most sense to first discuss a little bit about construction contracts as that creates a foundation and governs the interrelationship between the parties on the project.

What Laws Govern Missouri Construction Contracts?

In Missouri, a construction contract is governed by Missouri statutes and case law but is also influenced by the Supreme Court of the United States’ decisions. The Supreme Court of the United States’ decisions provide the basic framework of the law and the Missouri statutes and cases give guidance regarding more specific issues that arise in construction, including, but not limited to:

  • Construction Contracts
  • Substantial Compliance vs. Material Breach of a Contract
  • Privity and the interrelationship between contractors
  • Design Professionals in the event of Negligence
  • Breach of Warranty, both expressed and implied
  • Misrepresentation
  • Fraud
  • Unjust Enrichment
  • Tortious Interference with contract
  • Strict Liability Claims
  • Indemnity Claims

Tip: Due to the complexity of a construction project and the potential pitfalls that could arise from nuances in the above law, you should always contact a reliable St. Louis Construction Lawyer before commencing any construction project in Missouri.

The attorney will walk you through the proper procedure and ensure that your contract has the necessary provisions in it to protect your rights.

Below are 3 important facets in a Missouri construction project: Time, Change & Termination:

1. Changes to the Construction Contract:

There is usually a provision in the construction contract which deals with changes or modifications to the scope of work or condition. If there has to be any change in the scope or price of the project, the owner must approve it prior the start of the construction.

See C.P. Jhong, Annotation, Effect of Stipulation, in Private Building or Construction Contract, That Alterations or Extras Must Be Ordered in Writing, 2 A.L.R.3d 620 (1965).

Article 7 of AIA Document A201-1997, for example, contains three classifications of amendments which each differ slightly:

  1. Change Orders
  2. Construction Change Directives.
  3. Minor Changes

This website briefly explains these concepts, but you  should contact a St. Louis Construction Lawyer to learn more about your  contractual rights in case a change is made to the construction contract.

2. Time of Performance:

If in the construction contract, no completion time is mentioned and a dispute arises regarding delays or timely completion, Missouri law expects that the construction will be completed in a reasonable time. See ArtCraft Cabinet, Inc. v. Watajo, Inc., 540 S.W.2d 918 (Mo. App. W.D. 1976). Failure to do so may give rise to damages claims from the party in the tier above on the construction project food chain.

A good construction contract, like AIA Document A201-1997, General Conditions of the Contract for Construction, uses the time between the commencement of the work to the time of substantial completion as the total amount of time for completion allowed for the contractor, with very few exceptions.

A good construction law attorney will include this type of provision into the contract, accounting for any anticipated delays or hiccups in the project.

3. 3 Ways a Construction Contract Can be Terminated:

Termination of a construction contract can occur in three ways at least:

  1. Termination for convenience without the fault of any of the parties.
  2. Termination by mutual agreement.
  3. Termination by performance one party because the material breach of the other party.

Before terminating any contract, it is important to know your rights.  You can avoid exorbitant expenses if you follow the proper procedure before terminating.  In order to know your rights and whether you have the legal right to terminate a contract, you should always consult with an experienced construction law attorney prior to making any drastic moves.

Conclusion

Any party who wishes to start a construction project in Missouri, should first devise a proper plan. This plan should include hiring a number of different people for the project, including

  • a project manager,
  • an architect,
  • construction engineer,
  • St. Louis Construction Lawyer (if it’s a Missouri project),
  • finance manager.

There are so many moving parts on a construction project that its difficult to try to handle the legal aspects of it while juggling the other tasks.  Contact a knowledgeable St. Louis Construction Law attorney to help you with contract negotiations, collecting on a job, or defending a consumer lawsuit.

If you hire an attorney, they will prepare a defense plan and it will increase your chances of success in the litigation. Or, at the bare minimum it will create leverage to resolve the dispute.

As we all know a significant amount of disputes arise during a construction project. If you retain an attorney before the dispute arises, you may be able to prevent it from happening in the first place.  “An ounce of prevention is worth a pound of cure.”

Don’t let that phrase haunt you when your in the middle of an expensive lawsuit for something that a Construction Law attorney could have prevented by including a simple provision in the contract.  Get your contracts reviewed by a local St. Louis attorney, so you’re in compliance with the applicable Missouri and St. Louis construction law.

If a dispute ever does arise, and the project is in Missouri, you should immediately contact a St. Louis Construction Lawyer who can guide you through the legal aspects of the contract.

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.

Missouri Construction Case Law

St. Louis ArchBriefs of Important Missouri Construction Case Law