Division of Labor Standards, Department of Labor and Industrial Relations, State of Missouri, Plaintiff-Appellant, v. Friends of the Zoo of Springfield, Missouri, Inc., and Dickerson Park Zoo, Springfield-Greene County Park Board, City of Springfield, Defendants-Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Division of Labor Standards, Department of Labor and Industrial Relations, State of Missouri, Plaintiff-Appellant, v. Friends of the Zoo of Springfield, Missouri, Inc., and Dickerson Park Zoo, Springfield- Greene County Park Board, City of Springfield, Defendants-Respondents. Case Number: 23143 Handdown Date: 06/26/2000 Appeal From: Circuit Court of Greene County, Hon. Don E. Burrell, Jr., Counsel for Appellant: David A. Meyer and Michael E. Pritchett Counsel for Respondent: Carl S. Yendes, Randy P. Scheer and Bob Lawson, Jr. Opinion Summary: None Citation: Opinion Author: James K. Prewitt, Judge Opinion Vote: AFFIRMED. Parrish, J., and Shrum, J., concur. Crow, P. J., recused. Opinion: Plaintiff sought declaratory judgment and injunctive relief, contending that Defendants were obligated to comply with the Prevailing Wage Law, sections 290.210 through 290.340, RSMo 1994, in connection with construction at the zoo owned by the City of Springfield (hereinafter "City"). Following summary judgment entered in favor of Defendants, Plaintiff appeals, presenting two points relied on. The Springfield-Greene County Park Board is an administrative board of the City (established through section 15.16 of the Springfield City Charter). The Park Board administers the Springfield Dickerson Park Zoo (hereinafter "Zoo"), owned by the City. Friends of the Zoo of Springfield, Missouri, Inc. (hereinafter "Friends of the Zoo"), is a private, not-for-profit, charitable organization, funded entirely by private contributions. Its stated purpose is "[t]o aid in the improvement, promotion, and development of Dickerson Park Zoo."

On December 3, 1998, Friends of the Zoo issued an invitation for bids through Pentecost Architects, Inc., for the construction of a 2,700 square feet building intended to house reptile exhibits. The project is to be funded entirely with private contributions through Friends of the Zoo. The design, specifications, letting of contracts and construction of the reptile house is solely under the administration of Friends of the Zoo. The building is to be located on Zoo property and will ultimately be donated to the City. In a letter written February 16, 1999, the Division of Labor Standards (hereinafter "Division") notified the architectural firm and director of the Park Board that Friends of the Zoo had violated the Prevailing Wage Law in its invitation for bids. This notice of violation requested notification as to whether or not the contract's invitation to bid would be withdrawn as requested by the Division. Friends of the Zoo did not so notify the Division. Friends of the Zoo reissued its invitation for bids on February 19, 1999, specifically informing bidders that the project would not require payment of the prevailing wage. On February 18, 1999, the Division filed its Petition for Declaratory and Injunctive Relief against Defendants, alleging that the proposed construction is subject to the requirements of the Prevailing Wage Law, and asking that the court compel Friends of the Zoo to amend the contract for construction to include notice that the project work is subject to payment of prevailing wages and order compliance in payment of the prevailing wage. The Division's petition also requested that the court affirmatively enjoin the Zoo from accepting and using the facility until the proper prevailing wages were paid to workers. Plaintiff alleged that Friends of the Zoo acts on behalf of the City of Springfield in the construction of this project at the Zoo. In support thereof, Plaintiff cites the following: (1) The project is located on City property and will ultimately become the property of the City; (2) City personnel are on the Board of Directors of Friends of the Zoo and the completed project will become property of the City. Thus, "it is reasonable to believe that the Project . . . . will require a level of expertise for design specifications that call for the involvement of the City's Zoo professionals." In considering the relationship between the City and Friends of the Zoo, Plaintiff contests the concept that the City has no role at all in the project's bidding, acceptance of bids, granting of contracts, management and supervision. (3) That the City is a public body, workmen employed to construct the project will be employed on behalf of the City, and the nature of that employment relationship "is not a fact, but a legal conclusion." Plaintiff also points out that the articles of incorporation of the Friends of the Zoo provide that in the event of its dissolution, all of its property will be given to the Zoo. Defendants dispute this, saying that the by-laws of the

Friends of the Zoo provide otherwise. For our purposes here, we presume that Plaintiff is correct.(FN1) Regarding Plaintiff's allegations that City personnel are on the board of the Friends of the Zoo, Defendants state that only one, Mike Crocker, its registered agent, is an employee of the City. He is the Zoo's director or superintendent. Under Friends of the Zoo's by-laws, the superintendent of the Zoo is "automatically" on the board of directors and its "Executive Director."(FN2) Plaintiff agrees that Friends of the Zoo "is not itself a public body"; that Friends of the Zoo is the owner of the project; and that the cost of construction will be paid for by private funds, with no public funds involved. Pursuant to motions subsequently filed by all parties for summary judgment, the court heard arguments on June 24, 1999 and issued a decision on June 28, 1999. In granting judgment in favor of the defendants, the court found the following: (1) that Friends of the Zoo is the entity constructing the project at issue in this case; (2) that the building project does meet the definition of a "public works"; (3) that Friends of the Zoo is not a public body; and (4) that no public body has exercised sufficient control over the project to support a conclusion that Friends of the Zoo is acting on behalf of a public body and not on its own behalf. We first discuss Plaintiff's second point because, if it has merit, the cause must be remanded for further proceedings. That point states: The trial court erred by granting Respondents' Motions for Summary Judgment because if it was not convinced that the plaintiff was entitled to summary judgment, it should have permitted additional time under Mo.R.Civ.P. 74.04(C)(2) so that plaintiff could conduct additional discovery, in that there were additional disputed connections between the Friends of the Zoo and the City of Springfield. In "Plaintiff's Suggestions In Support Of Its Motion For Summary Judgment And In Opposition To Defendant Friends Of The Zoo's And Defendant City Of Springfield's Motions To Dismiss Or In The Alternative For Summary Judgment," Plaintiff stated: V. Need for Additional Discovery If this Court concludes that there is not currently a sufficient basis to rule in the Division's favor, and cannot yet conclude that the Friends of the Zoo is engaging in public works construction on behalf of the City, then Plaintiff requests additional time to conduct discovery. The following discovery is essential to this case: information pertaining to the role of employees of the City who are on the board of Directors of the Friends of the Zoo; the role of City employees in establishing the plans, design, specifications and construction of the project; information relating to the genesis of the Project and the information provided to the architects; the arrangements between the Friends of the Zoo and the City regarding the construction of the Project on City property; the arrangements between the Friends of the Zoo and the City regarding the disposition of the Project after its completion. In the event the Court does not conclude there is already sufficient evidence of the connection of the City to the Project, plaintiff requests a further opportunity to respond to defendants' motions after the opportunity for the conduct of discovery on this issue, as permitted by Mo.R.Civ.P. 74.04(f).

Rule 74.04 sets forth the procedure to seek or oppose summary judgment. Plaintiff's request for additional discovery did not comply with Rule 74.04(c)(2). That portion of the rule requires: If the party opposing a motion for summary judgment has not had sufficient time to conduct discovery on the issues to be decided in the motion for summaryjudgment, such party shall file an affidavit describing the additional discovery needed in order to respond to the motion for summary judgment and the efforts previously made to obtain such discovery. For good cause shown, the court may continue the motion for summary judgment for a reasonable time to allow the party to complete such discovery. "An affidavit is a declaration on oath, in writing, sworn to by a person before someone authorized to administer such oath." Strom v. Auto. Club Inter-Ins. Exchange, 952 S.W.2d 794, 798 (Mo.App. 1997). The request here was not contained in an affidavit or supported by one, nor did it describe previous efforts to obtain such discovery. The petition was filed on February 18, 1999. The initial motion for summary judgment was filed on March 10, 1999, and the suggestions were filed by Plaintiff on April 12, 1999. Judgment was entered on June 28, 1999. Citing Curnutt v. Scott Melvin Transport, Inc., 903 S.W.2d 184, 193 (Mo.App. 1995), Plaintiff acknowledges that the circuit court is vested with wide discretion regarding whether additional discovery to respond to a motion for summary judgment will be allowed. That case states, as does the rule, that opponents of a motion for summary judgment must call to the court's attention uncompleted discovery and show by affidavit why it is material and important. Curnutt, 903 S.W.2d at 193. Apparently, in an attempt to comply with the rule and the holding in Curnutt, Plaintiff asserts that it "did provide the required affidavit to the circuit court setting out what discovery was needed." Plaintiff cites to an entry on the trial court's docket sheets and a portion of the legal file containing Plaintiff's unverified suggestions quoted above. The record contains no other request for additional discovery. The cite to the docket sheet refers to the suggestions and an affidavit, but the affidavit is not in the legal file, and to what it pertains and may say cannot be determined from the record before us. Thus, Plaintiff has not established that it complied with Rule 74.04(c)(2). The "Need for Additional Discovery" which Plaintiff has cited to us is not an absolute request, but a conditional one. It states that "[i]f this Court concludes that there is not currently a sufficient basis to rule in the Division's favor, and cannot yet conclude that the Friends of the Zoo is engaging in public works construction on behalf of the City, then Plaintiff requests additional time to conduct discovery." Plaintiff also states that "[i]n the event the Court does not conclude there is already sufficient evidence of the connection of the City to the Project, plaintiff requests a further opportunity to respond to defendants' motions after the opportunity for the conduct of discovery on this issue." This request appears to ask the court to review and decide numerous issues and then, if it reached certain conclusions, grant the request. We view this as a burden that the trial court was not required to assume. This

obviously calls for a piecemeal determination by the trial court, by which it makes determinations that are properly Plaintiff's. Plaintiff knew of the theories and contentions being advanced and should have been prepared to meet them without requesting that the judge decide what preparation it should make. We can find no abuse of discretion when Plaintiff made this conditional request for additional discovery and did not follow the clear mandates of Rule 74.04(c)(2). Point II is denied. We turn now to Plaintiff's first point, which states: The trial court erred by granting Respondents' Motions for Summary Judgment and in failing to grant Appellant's Motion for Summary Judgment when it held that the Prevailing Wage Law did not apply to the construction of a new structure on the grounds of the City of Springfield's Dickerson Park Zoo by the Friends of the Zoo, because the Project is a public works construction project whose workers will be engaged in construction on behalf of a public body, in that the Project is being constructed on the City's property and there is such a close relationship between the City and the Friends of the Zoo that it is apparent that the construction is on behalf of the City. We initially note that a point on appeal may not be premised upon the failure to grant summary judgment in favor of the appealing party. Denial of summary judgment does not present an appealable issue even though final judgment was entered. Jackson v. Safeco Ins. Co. of America, 949 S.W.2d 130, 132 (Mo.App. 1997); Judy v. Arkansas Log Homes, Inc., 923 S.W.2d 409, 413-14 (Mo.App. 1996).(FN3) This leaves the inquiry as to whether summary judgment against Plaintiff was proper. The portion of the Prevailing Wage Law in issue here is section 290.230.1, RSMo 1994. It states: Prevailing wage rates required on construction of public works. --

1. Not less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is

performed, and not less than the prevailing hourly rate of wages for legal holiday and overtime work, shall be paid to all workmen employed by or on behalf of any public body engaged in the construction of public works, exclusive of maintenance work. Only such workmen as are directly employed by contractors or subcontractors in actual construction work on the site of the building or construction job shall be deemed to be employed upon public works. As relevant here, "public works" is defined as "all fixed works constructed for public use or benefit or paid for wholly or in part out of public funds." Section 290.210(7), RSMo 1994. Based on this definition, Plaintiff contends that the source of the funds is immaterial, as if it is "for public use or benefit," from where the funds originate makes no difference as public funds are thereafter included in the definition. As hereinafter discussed, we believe that whether public funds are used is relevant. In determining the application of section 290.230.1, the courts have used two criteria: first, the project must be a "public works"; and second, the project must involve workmen employed by or in behalf of any public body engaged in the construction of public works. State ex inf. Webster v. City of Camdenton, 779 S.W.2d 312, 316

(Mo.App. 1989); State ex rel. Ashcroft v. City of Sedalia, Mo., 629 S.W.2d 578, 583 (Mo.App. 1981). The parties are in agreement that the first criteria is present, that the contemplated building would be "public works." As far as we can tell, no workmen will be employed by Friends of the Zoo or the City, but by contractors and subcontractors on the project. Apparently the prime contractor will perform under an agreement with Friends of the Zoo. There is no contention that Friends of the Zoo is a public body, only that the construction is on behalf of the City. Appellant's first point concludes that "the Project is being constructed on the City's property and there is such a close relationship between the City and the Friends of the Zoo that it is apparent that the construction is on behalf of the City." Plaintiff appears to summarize its contentions in the opening paragraph of argument under this point: The construction of a reptile house is a public works project, and although the workers may literally be employed by contractors with the Friends of the Zoo, the construction project itself is on behalf of the City of Springfield. The principle that workers can be employed indirectly by a public body on a project and still be subject to the Prevailing Wage Law is the crux of this case. Although citing other authority, the parties basically discuss and rely on City of Camdenton and City of Sedalia. Those cases, under differing facts, reach opposite results as to the application of the Prevailing Wage Law. In City of Camdenton, pursuant to a contract resulting from the acceptance of a bid the City of Camdenton sold two lots to Patterson and Associates (Patterson). The contract required Patterson to cause a firehouse/police station to be built on those lots and to give Camdenton a lease with an option to purchase. This District determined that the Prevailing Wage Law applied in that situation, concluding at 779 S.W.2d at 316: "To hold that this carefully constructed legal facade insulates the construction of the firehouse/police station from the Prevailing Wage Act would be to place form over substance." In making its determination, this Court noted at 312: The applicability of the Act is to be decided upon a determination of what is to be accomplished. A city may not do indirectly that which it cannot do directly. Sager v. City of Stanberry, 336 Mo. 213, 78 S.W.2d 431 (1934). This court readily concludes the workmen on the project are in reality employed on behalf of Camdenton. City of Sedalia involved an industrial development project financed by industrial revenue bonds issued by the City of Sedalia. The industrial development project involved the purchase of a building and surrounding acreage by the City which was then leased to Garner-Denver Company to renovate, including the installation of fixtures and machinery. That company would then occupy it for the purpose of manufacturing rotary screw compressors. Concluding that the Prevailing Wage Act did not apply, the Western District concluded that the legislative history of the Prevailing Wage Act "indicates an intent to limit its application to employees of contractors constructing public works on contracts with public bodies." 629 S.W.2d at 586, quoting City of Joplin, Mo. v. Indus. Comm'n of Mo.,

329 S.W.2d 687, 692 (Mo.banc 1959). Certainly the City may benefit from this project, but we are unable to conclude, as we did in City of Camdenton, that the manner of its construction is a "legal facade," nor that the workmen on the project are in reality employed on behalf of the City of Springfield. It is, of course, the Friends of the Zoo's money to do with as it wishes, subject, of course, to the laws applicable to such organizations. It is not required to build a reptile house, and if it decides to do so, nothing we are aware of would prevent it from entering into the contract, although, of course the City must agree to allow it to occur on city property. Agreeing to the procedure does not mean that the City is a party to the contract or that the employees are working for the contractor on behalf of the City. In City of Camdenton, the money appears to have come from that city. Here, the money for the construction comes from Friends of the Zoo, who conceivably may want to control its application, although using it for the benefit of the zoo owned by the City. We are unable to conclude that the trial court erred in granting summary judgment. The summary judgment is affirmed. Footnotes: FN1.As Plaintiff asserts, by-laws which conflict with articles of incorporation are void. Boatmen's First Nat'l Bank v. Southern Mo. Dist. Council of the Assemblies of God, 806 S.W.2d 706, 713 (Mo.App. 1991). FN2.In oral argument, Plaintiff's attorney agreed with Defendants' attorneys that Crocker is a non- voting board member of Friends of the Zoo, Inc. FN3.As Judy ( Western District opinion) notes, the Eastern District has ruled contrary on reviewing the denial of summary judgment when final judgment has been entered. See Judy, 923 S.W.2d at 414. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.