You Cannot Have it Both Ways: Missouri Appellate Court Holds City Cannot Bring a Complaint for Breach of a Contract and Plead in Response to a Counterclaim That the Same Contract Is Void

City of Dardenne Prairie v. Adams Concrete & Masonry, LLC, No. ED104982, 2017 Mo. App. LEXIS 533 (Mo. Ct. App. May 30, 2017)

This case arises out of a construction project in which the City of Dardenne Prairie (the “City”) purchased bricks for its construction of two buildings—a new city hall and a parks maintenance building—from Adams Concrete & Masonry, LLC (“ACM”).  In October 2008, the City enacted two ordinances authorizing the construction of the new city hall, but did not enact any ordinances authorizing the construction of the parks maintenance building.  Such authorization—and approval—by the City’s Board of Aldermen (“Board”) is required by law for public projects in Missouri.  Nevertheless, the City executed an agreement with ACM for the purchase of bricks and provision of masonry work for both projects.  In November 2009, the City paid ACM in full for all of the bricks.  But in December 2010, the City decided not to construct its parks maintenance building and thus, the bricks for it were never delivered.

In 2014, the City contacted ACM regarding the location of the undelivered bricks.  Upon learning that ACM’s fabricator had already resold the bricks, the City sued ACM for breach of contract to recover the cost of the undelivered bricks, averring that ACM had breached its purchase agreement by failing to deliver the materials.  ACM counterclaimed for breach of contract, claiming that the City was in breach by cancelling the construction of the parks maintenance building, thereby preventing ACM from completing its masonry work.  The City raised an affirmative defense, asserting that its agreement with ACM had not been approved by the City’s Board as required and thus was not enforceable.  ACM seized on the City’s assertion and moved for judgment on the pleadings arguing that, through this affirmative defense, the City admitted that its Board had not approved the agreement, and thus, the agreement was void and the City, too, was barred from recovering for breach of a contract that never existed.  The trial court sustained ACM’s motion and dismissed the claim and counterclaim.

The City appealed, but the appellate court affirmed, holding that the City was bound by its assertion that the Board had not approved its park maintenance building, and that this assertion proved the purported contract to be void, and thus incapable of serving as the basis for the City’s breach of contract claim.

The appellate court noted that, while parties may plead in the alternative and state inconsistent claims and defenses, they may only do so if the inconsistent allegations are made in good faith and based on genuine doubt.  The court found the City’s argument—that the Board had approved of the contract as it applied to the City’s claim, but not as to ACM’s claim—to be “disingenuous and not supported by the record,” noting that the City could not “have it both ways.”  The contract on which ACM and the City sued was void and thus could not support either party’s claim for breach;  as a result, the court held that judgment on the pleadings was properly entered.

To view the full text of the court’s decision, courtesy of Lexis®, click here.

John J. Gazzola

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