Bates County Redi-Mix, Inc. v. Windler

• Decision Date: 29 March 2005
• Docket Number: No. WD 63152.,WD 63152.
• Citation: 162 S.W.3d 98
• Parties: BATES COUNTY REDI-MIX, INC., Appellant, v. Loren D. and Debbie K. WINDLER, d/b/a Windler Backhoe Services, Defendant, Michelle L. Cole, Respondent, and National City Mortgage, d/b/a Commonwealth United, Respondent.
• Court: Missouri Supreme Court

162 S.W.3d 98

BATES COUNTY REDI-MIX, INC., Appellant, v. Loren D. and Debbie K. WINDLER, d/b/a Windler Backhoe Services, Defendant, Michelle L. Cole, Respondent, and National City Mortgage, d/b/a Commonwealth United, Respondent.

No. WD 63152.

Missouri Court of Appeals, Western District.

February 22, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.

Lynn K. Ballew, Harrisonville, for appellant.

Richard Koehler, Butler, Dennis Campbell Owens, Kansas City, for Michelle Cole, respondent.

John Pursley, Butler, and Jeffrey Weisman, Earth City, for National City Mortgage, respondent.

RONALD R. HOLLIGER, Judge.

Bates County Redi-Mix, Inc., ("Bates") appeals from a judgment denying it a mechanic's lien against property owned by Michelle Cole. It is undisputed that Bates furnished concrete to the subcontractor of a general contractor hired by Cole. The concrete was improperly installed, rendering the entire foundation unusable and necessitating that it be completely torn out and replaced. In a case of first impression, Bates asks, as an innocent materialman, to be awarded a lien for its material, even though the material it supplied was never incorporated into the final structure and added no value to the property. We hold that Bates was entitled to a mechanic's lien upon Cole's property and reverse and remand with directions that the trial court enter judgment in favor of Bates on its lien claim.

FACTS AND PROCEDURAL BACKGROUND

Michelle Cole purchased land in Bates County upon which she intended to place a manufactured home. The manufactured home needed to be set upon a basement foundation, and she contracted with Loren Windler, as general contractor, to erect the foundation. Windler, in turn, engaged Mr. Beers¹ as a subcontractor to construct concrete forms and to pour the concrete for the project. Windler also contracted with Bates County Redi-Mix, who would supply the concrete for the basement foundation.

Bates delivered concrete to the construction site on November 15, 1999, and December 2, 1999. Shortly thereafter, it was discovered that the basement foundation was unsuitable for installation of the manufactured home. In places, the basement walls were out of plumb by several inches. In other places, the walls bowed significantly. The basement, as a whole, was also wider than much of the manufactured home. The construction methods introduced dry joints² that would be prone to water leakage. There were also parts of the foundation, such as frost footings, and adjacent structures, such as retaining walls, that were not poured at all. Thus, the work performed was both defective and incomplete.

There was no claim that any of these problems were due to the materials supplied by Bates or that those materials were in any way unsuitable. Instead, all of these deficiencies were due to errors made by Beers in setting up the concrete forms for the project and mistakes made by him during the pouring of the concrete into the forms.

Windler and Beers suggested possible ways of correcting the deficiencies in the work. However, Cole concluded that those suggestions would not resolve the problems in a satisfactory manner. Therefore, she instructed Windler to completely remove the foundation. The foundation was completely demolished and transported off Cole's land. Cole later obtained the services of a different contractor who built a replacement foundation. Cole ultimately placed her manufactured home on the second foundation.

Cole did not pay Windler for either labor or materials for the work on the original foundation. Windler stopped payment on a check provided to Bates for the concrete it supplied and Bates' services in pumping the concrete. The check, in the amount of $4,065.47, was returned unpaid. Windler subsequently paid Bates a portion of that amount as restitution arising out of criminal charges, leaving an unpaid balance due to Bates in the amount of $2,914.47 for its materials and services.

Bates timely provided Cole notice of its intent to seek a mechanic's lien on the property for the unpaid balance. It filed suit to perfect its lien on June 2, 2000. The matter proceeded to trial, and the trial court initially entered judgment in favor of Bates. Cole and her mortgagor subsequently filed a motion for new trial. Upon that motion, the trial court concluded that its original judgment was in error and set it aside.

The trial court's final judgment, issued on July 24, 2003, found that Bates was not entitled to a mechanic's lien against Cole's property because the concrete it supplied was completely removed from the property and was not incorporated in any manner in the rebuilt foundation. Bates now appeals.

DISCUSSION

Bates raises two points in the present appeal. In its first point, it argues that the trial court erred in denying its claim for a mechanic's lien because its lien interest attached to the property at the time it provided materials that were used in the construction of the original basement and foundation on Cole's property. In its second point, Bates contends that, even if it was not entitled to a mechanic's lien against the finished structure on Cole's property, given that none of the Bates-supplied concrete was used in its construction, the trial court erred by refusing to recognize that it had a valid lien against the land itself. We find Bates' first point to be dispositive.

As a bench-tried case, our review of the trial court's judgment is conducted under the Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), standard of review. See Ken Cucchi Constr. Inc. v. O'Keefe, 973 S.W.2d 520, 523 (Mo.App.1998). In both points on appeal, Bates contends that the trial court misapplied the law in reaching its judgment. With regard to conclusions of law, we conduct our review independently and do not defer to the trial court. See Barry Serv. Agency Co. v. Manning, 891 S.W.2d 882, 887 (Mo.App.1995). Of course, determining the correct legal conclusion depends upon the operative facts before the court. In determining what the facts before the court were, we view the evidence in the light most favorable to the judgment, disregarding all contrary evidence. See Ken Cucchi Constr., 973 S.W.2d at 524.

Mechanic's liens were unknown at common law and exist purely as a creature of statute.³ Section 429.010 provides, in relevant part:

Any person who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler or machinery for any building, erection or improvements upon land, or for repairing the same, . . . under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, . . . upon complying with the provisions of sections 429.010 to 429.340, shall have for his work or labor done, or materials, . . . a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, . . . to secure the payment of such work or labor done, or materials ... furnished[.]

This section has remained substantially unchanged since 1855, save for amendments expanding the classes of claimants covered (such as nurserymen) or other minor, technical, changes. See Chap. 109 Section 1, RSMo 1855.⁴ The mechanic's lien statute is remedial in nature and should be construed as favorably to mechanics and materialmen as their terms permit. Yamnitz v. Polytech, Inc., 586 S.W.2d 76, 84 (Mo.App.1979). Nevertheless, it cannot be extended to facts not fairly within its general scope. McGuinn v. Federated Mines & Milling Co., 160 Mo.App. 28, 141 S.W. 467, 469 (1911). Its purpose is to guarantee effective security to those who furnish labor and materials for the improvement of the owner's property. Ladue Contracting Co. v. Land Dev. Co., 337 S.W.2d 578, 584 (Mo.App.1960).

Bates argues that, under Missouri law, its lien attached at the time that the concrete material was delivered and incorporated into the construction of the foundation. More precisely, it argues that the trial court erred in holding that the lien was extinguished by removal of the foundation by the property owner. Implicit in this argument is the contention that, once the materials are incorporated into the construction, the policy of the mechanic's lien law as applied to an innocent supplier places the risk of loss on the property owner.

Both parties agree with the general principle that, in order for a materials supplier to assert a mechanic's (or, more properly, materialman's) lien against property, those materials must have "`actually entered' or `went into' or were `used in' the construction of the building." Boyer Lumber, Inc. v. Blair, 510 S.W.2d 738, 745 (Mo.App.1974). To be "used in" the property, it is not essential that the supplied materials become a permanent part of the construction. Id.⁵ However, if the supplied materials do not become a permanent part of the structure, then a mechanic's lien is available only if the use or consumption of those materials was necessary for completion of the finished structure. See id. (quoting Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824, 831 (Mo.1953)). Cole argues, however, that the materials supplied must be integrated into the final structure and thereby improve the land. She relies heavily upon Shine's Executrix v. Heimburger, 60 Mo.App. 174 (Mo.App.1895), and Tallman Co. v. Villmer, 133 S.W.2d 1085 (Mo.App.1939).

In Shine's Executrix, the issue was whether a subcontractor could obtain a mechanic's lien for work performed on a brick building destroyed due to a wind storm prior to the building's completion and rebuilt by another subcontractor (after the first subcontractor refused to perform the work). See 60 Mo.App. at 176. The appellate court reviewed cases from a number of different jurisdictions before reaching the conclusion that, where the building was destroyed during construction and prior to completion and...