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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)

Author: John J. Gazzola

8/03/2017

Read the full post at Constructlaw

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

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.