BCI Corp. v. Charlebois Const. Co., 65549
| Decision Date | 19 June 1984 |
| Docket Number | No. 65549,65549 |
| Citation | 673 S.W.2d 774 |
| Court | Missouri Supreme Court |
| Parties | BCI CORPORATION, et al., Plaintiffs, v. CHARLEBOIS CONSTRUCTION CO., Defendant, and Robert W. Denton, Defendant-Appellant, and First Federal Savings & Loan Assn., Defendant-Respondent. |
Marvin Tofle, Columbia, for defendant-appellant.
Craig A. Van Matre, Columbia, for defendant-respondent.
The judgment is reversed and the case is remanded for the reasons set out in the opinion of the Court of Appeals, which we The respondent apparently contends that the ten-day requirement of § 429.100, RSMo 1978 exists for the benefit of persons in addition to the owner of the real estate sought to be charged with the lien, and should be applied to a laborer hired directly by the owner, in order that these other persons might have notice. It is suggested that respondent, a lender, might make a payout which it would have held up on if it had had notice of a lien claim. The notice, however, is for the benefit of the owner and the owner alone, so that the owner may take protective steps against the principal contractor if others are not paid. Cases over the years have held that the notice need be given, if it is required at all, only to the person who was the owner at the time the work was done or materials furnished. Notice is not required to persons who subsequently become owners, or to persons involved in the lending process, whether trustees or cestuis que trust. The numerous holdings are found in Note 4 to V.A.M.S. § 429.100. It follows that no notice is required when the claimant is an employee of the owner.
adopt and which is attached as an appendix to this opinion. We write briefly in response to points vigorously urged by counsel for respondent in the transfer documents and in oral argument.
The respondent also claims that, in the absence of a pleading stating a claim against it, it does not know what priorities are claimed against the interest which it acquired on foreclosure of its deed of trust, or what affirmative defenses it might have against the appellant's lien claim. Issues of the priority of the appellant's lien claim may be perfectly well litigated on remand, and there is no obstacle to the assertion by respondent of any defense it might want to raise to the lien claim. It also has access to discovery procedures. Dispositions on the pleadings are not favored when there is no obstacle to full resolution of the issues.
R.J. Stephens Drywall & Painting Co. v. Taylor-Morley-Simon, Inc., 628 S.W.2d 374 (Mo.App.1982), alleged to be in conflict with the opinion of the Court of Appeals, involved a contractor who had "furnished labor and material," so that there were others with a potential lien claim. The owner was therefore within the class of persons within the protection of § 429.012, RSMo 1978. The case has no application to the situation before us, in which the appellant sought to recover solely for his own labor.
The judgment denying the lien is reversed and the cause is remanded for further proceedings as may be appropriate.
BILLINGS, J., dissents in separate opinion filed.
CHARLEBOIS CONSTRUCTION COMPANY, Opinion Filed:
APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY
Before DIXON, P.J., KENNEDY and LOWENSTEIN, JJ.
Appellant Denton seeks to enforce a mechanic's lien on Lot 83 of Kitty Hawk Manor, Plat No. 2. The trial court awarded judgment in favor of Denton against Charlebois Construction Company, but denied Denton a lien on the ground that he had not complied with the notice provisions of the Mechanics' Lien statute. We hold that Denton was not subject to the requirements of the notice provisions contained in either Section 429.012 or Section 429.100. 1
Charlebois Construction Company ("Charlebois") was a corporation engaged in general construction work. In January 1980 it bought Lot 83 of Kitty Hawk Manor, Plat No. 2, on which it intended to build four apartment buildings containing 32 apartment units. For some period of time prior to the acquisition of Lot 83 and continuing thereafter, Denton was employed by Charlebois as its construction supervisor. The pay arrangement was that Denton would receive $360 per week plus a bonus of $250 per apartment unit, the bonus to be paid in three stages as work on each apartment was completed.
Charlebois commenced construction work, and all of the proposed structures were under roof by July 1980. However Charlebois ran out of money and for that reason terminated Denton on July 28, 1980, and ended its business operations not long thereafter. At the time of his termination, Denton had received all of his weekly salary but $6,400 due to him as bonus money remained unpaid.
On September 4, 1980, BCI Corporation filed suit to enforce its mechanic's lien against Lot 83. On September 12, Denton gave Charlebois notice of his claim to a mechanic's lien and four days later, on September 16, he filed his mechanic's lien.
On October 22, 1980, First Federal Savings and Loan Association ("First Federal") foreclosed on Lot 83 under a deed of trust and bid in the property. On November 21, 1980, Boone County Lumber Company moved to intervene and to add parties and on December 1, Boone County filed its petition to foreclose its mechanic's lien in the form of an equitable mechanic's lien proceeding under Section 429.270. Among the parties added as defendants were Denton and First Federal.
On December 15, 1980, First Federal sold the real estate in question to Phillip and Vesta Holtgraves. Thereafter, on December 31, 1980, Denton filed a "Separate Answer and Cross Claim of Defendant Robert W. Denton Against Defendant Charlebois Construction Company." In his prayer, Denton prayed judgment in the amount of $6,400 against Charlebois, the declaration of a lien, that the court order that lien to be a superior and senior lien upon the real estate, and that "the Court marshall, apply and distribute the proceeds arising from the sale of said real estate hereinabove described according to the rights, interests and priorities of the various parties to this action...."
First Federal filed a motion to dismiss Denton's answer and cross claim on March 12, 1981. Denton's claim finally came on for hearing on September 16, 1981. By that time, all other lien claims had been settled and had been dismissed with prejudice.
At the outset of the hearing, First Federal objected to the court proceeding on the ground that Denton had filed no claim against it, and that First Federal had had First Federal further argued that regardless of the procedural problem mentioned, Denton should not be permitted to assert a mechanic's lien because of his failure to comply with the provisions of either Section 429.012 or Section 429.100. Counsel for First Federal suggested that under the peculiar circumstances presented, the court should permit Denton to proceed with evidence only in the form of an offer of proof. The trial court decided to so proceed, stating on the record:
no opportunity to plead any special defenses other than those raised by its motion to dismiss. In the latter respect, First Federal argued to the trial court:
After the conclusion of the hearing, the court made findings of fact which included the following:
"5. Defendant Denton did not comply with any notice requirements set forth in Section 429.012 RSMo.
6. Defendant Denton was the employee of Defendant Charlebois Construction Company.
7. Defendant Denton was offered the opportunity at trial to elect as to which notice provision said Defendant desired to come under for the purpose of perfecting said Defendant's alleged mechanic's lien, but Defendant Denton declined to so elect."
The court also made conclusions of law which included the following:
"1. Defendant Denton did not furnish the requisite ten (10) day notice as required by Section 429.100 RSMo. in that Defendant Denton's Mechanic's Lien was filed with the Office of the Clerk of the Circuit Court of Boone County, Missouri, on September 16, 1980, but the notice of intention to file said mechanic's lien was delivered to the owner/general contractor, Charlebois Construction Company, on September 12, 1980.
2. Defendant Denton has failed to perfect any Mechanic's Lien against any real property formerly owned by Charlebois Construction Company in the manner required by the Statutes of the State of Missouri.
3. All other mechanic's lien claimants in the above captioned case have dismissed their claims with prejudice."
As already indicated, the controversy in this case centers principally upon two notice provisions of the Missouri Mechanics' Lien law, Section 429.012 and Section 429.100. Section 429.012 is a relatively new provision adopted by the General Assembly in 1974 and provides as follows:
"1. Every original contractor, 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...
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