Brownstein v. Rhomberg-Haglin and Associates, Inc., RHOMBERG-HAGLIN

• Decision Date: 28 January 1992
• Docket Number: RHOMBERG-HAGLIN,No. 73639,73639
• Citation: 824 S.W.2d 13
• Parties: Robert BROWNSTEIN, d/b/a Brownstein Associates, Appellant, v.AND ASSOCIATES, INC., a corporation, and Arthur Muskin, Respondents.
• Court: Missouri Supreme Court

Page 13

824 S.W.2d 13

Robert BROWNSTEIN, d/b/a Brownstein Associates, Appellant, v. RHOMBERG-HAGLIN AND ASSOCIATES, INC., a corporation, and Arthur Muskin, Respondents.

No. 73639.

Supreme Court of Missouri,

En Banc.

Jan. 28, 1992.

Richard Wunderlich, Kellee A. Koncki, Clayton, for appellant.

Am. Institute of Architects, Mo. Council of Architects, American Consulting Engineers Council, Consulting Engineers Council of Missouri, National Society of Professional Engineers & Missouri Society of Professional Engineers, G. William Quatman, Thomas A. Sheehan, Kansas City, amicus.

Robert C. Jones, Robert E. Jones, St. Louis, for respondents.

RENDLEN, Judge.

Transferred after opinion in the court of appeals, this case requires construction of § 429.015, RSMo 1978, the Architectural Lien Statute. We affirm.

The dispositive facts found principally in the parties' stipulation are these: In May 1982, defendant Rhomberg-Haglin (Rhomberg) contracted to purchase a building at 801-805 North Second Street, then known as the "Levee Building" and later as the "Trader's Building" (Building), from Mil-Cliff Corporation (Mil-Cliff). On July 26, plaintiff and Rhomberg executed a "Standard Form Agreement Between Owner and Architect" (Agreement) in which plaintiff, d/b/a Brownstein Associates, a licensed architectural firm, agreed to provide architectural services for the building's rehabilitation and three days later plaintiff was instructed to prepare "as-built" drawings for the project. ¹

When the land sale was closed January 3, 1983, Rhomberg took Mil-Cliff's quitclaim deed to the property. Three security instruments, all filed January 4, were employed to provide financing for the purchase: 1) a deed of trust securing payment of $188,278.30 to Mark Twain Parkway Bank (Mark Twain); 2) a $75,500.00 deed of trust to Mil-Cliff; and 3) a $75,000 deed of trust to Arthur Muskin (Muskin), a St. Louis businessman, who agreed to guarantee the deed of trust of Mark Twain Parkway in exchange for a fee of $87,500.00. The same day, Rhomberg directed plaintiff to proceed with the described architectural work under the agreement, which provided the price for plaintiff's services would be five percent (5%) of the estimated construction cost. The cost estimate, as determined by the selected general contractor, C. Rallo Contracting Co. (Rallo), Inc., was declared to be $2,107,937.00 on May 6, 1983, establishing plaintiff's fee at $105,000.00 plus. Rhomberg was to pay that fee by monthly installments but, in early 1983, halted payment and on May 5, plaintiff filed his architect's lien with the clerk of the St. Louis City Circuit Court. ²

Thereafter Mark Twain assigned its note followed by the deed of trust to Muskin and on August 25, Muskin foreclosed, purchasing the property himself at the foreclosure sale. ³

Intending to redo the building, Muskin at first examined the possibility of employing plaintiff and his architectural drawings but found that plaintiff's services were "packaged" or linked to Rallo as the designated general contractor. Muskin determined that Rallo's estimates were high and, looking elsewhere, retained Luer-Pope & Associates (Luer-Pope) to prepare preliminary drawings for the project. Sometime during the late 1970's, Luer-Pope had done certain preliminary work hoping to be employed by the then owners of the building; however, this anticipated arrangement failed to materialize and that early work was shelved.

Muskin conveyed the property August 1, 1985, to the Planned Industrial Expansion Authority (PIE) of St. Louis, which immediately transferred to Trader's Redevelopment Corporation, a company owned by Trader's Partnership. Muskin, a general partner of the latter and president of Trader's Redevelopment Corporation, promptly contracted with Luer-Pope to develop drawings for the building, which was eventually rehabilitated under plans they submitted. Neither Rallo nor Rhomberg was involved.

Plaintiff petitioned to enforce his architect's lien on November 2, 1983, and, during the trial, five years hence, only three witnesses, the plaintiff, Muskin and Jack Luer of Luer-Pope were called. On January 29, 1990, Judgment in favor of defendants on all counts was entered in which the trial court found that "[n]o actual construction, repair or improvement was undertaken utilizing [the] plans [prepared by plaintiff]," and that plaintiff's architectural lien could not attach under § 429.015, RSMo 1978; further, that plaintiff's lien failed because he had failed to contract with the owner of the land when agreeing to provide architectural services, and, finally, the foreclosure sale on Mark Twain Parkway Bank's deed of trust had extinguished plaintiff's lien.

In this bench tried case, we must sustain the judgment unless there is no substantial evidence to support it, or it is against the weight of the evidence or it erroneously declares or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Plaintiff first attacks the trial court's holding that a lien may not attach unless architectural services were utilized in the actual construction or improvement of the property, a question of first impression for Missouri courts. Section 429.015.1, RSMo 1978 ⁴ in pertinent part provides:

Every registered architect....who does any architectural....work upon or performs any architectural....service directly connected with the erection or repair of any building or other improvement upon land 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 this chapter, shall have for his architectural....work or service so done or performed, a lien upon the building or other improvements and upon the land belonging to the owner or proprietor on which the building or improvements are situated, to the extent of one acre.

(Emphasis added.)

We are mindful that statutory liens of this sort are remedial, to be construed liberally in the favor of the lien claimant, Maran-Cooke, Inc. v. Purler Excavating, Inc., 585 S.W.2d 38, 40 (Mo. banc 1979); however, the primary rule of statutory construction is to ascertain the legislative intent from the statute's language, to give effect to that intent if possible, consider the words in their plain and ordinary meaning, Wolff Shoe Company v. Director of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988), and when the language is unambiguous, we are afforded no room for construction. Id., 762 S.W.2d at 31.

While this is the first opportunity for appellate review of § 429.015.1's phrase "directly connected," "direct" is an oft examined term. It has been described as a synonym for "proximate." John Drennon & Sons Company v. New Hampshire Insurance Company, 637 S.W.2d 339, 341 (Mo.App.1982). A "direct" cause of an event is that which in a natural and continuous sequence, unbroken by any new cause, produces the event and without which the event would not have occurred. Id. To hold that § 429.015.1 allows an architectural lien to attach where the services of an architect are not employed in "erection or repair of any building or other improvement" would fly against the plain meaning of the statute's terms.

As demonstrated by Maran-Cooke, Inc., supra, the words of the statute are controlling and, refusing to restrict the term "registered professional engineer" as applying only to individuals, we determined the statute required that engineering corporations too must register to qualify for the benefits of the lien statute, id.; this because the legislative mandate overrode equitable principles that might point to a different result. Id., 585 S.W.2d at 41.

Plaintiff directs attention to opinions from sister states in attacking the trial court's interpretation of the statute. In this regard, opinions vary among the states and it is aptly noted:

An architect may acquire a lien for his services where his plans and specifications are used in the construction of a building. While there is some authority holding that he may acquire a lien even though his plans and specifications are not used, ordinarily no lien may be allowed for plans and specifications not used. An architect may not be entitled to a lien for preparing plans and specifications for a building actually constructed on a different plan, after the plans for which the lien is claimed had been actually abandoned, but, where the fundamental principles of architects' plans are used in the construction of a building, the fact that the identical plans are not used has been held not to deprive the architects of their lien.

57 C.J.S. Mechanics' Liens § 36 (1948) (footnotes omitted). More particularly, Missouri appears to have uniquely worded its architectural lien law. In a statute similar to ours, Louisiana entitles architects to a lien on immovable property for professional services "rendered in connection with a work that is undertaken by the owner." LSA-R.S. 9:4801(5); GRW Engineers, Inc. v. Elam, 504 So.2d 117, 119 (La.App.1987). Though the statute is without the qualifier "directly" appearing in our version of the law, the Louisiana court interpreted its statute to require that the construction or improvement utilize the architect's plans or specifications, Construction Engineering Co. of Louisiana v. Village Shopping Center, Inc., 168 So.2d 826, 830 (La.App.1964), and denied the lien because no actual construction had been undertaken though the architect had been properly employed and had rendered it services. Id.

Plaintiff insists that to deny the lien would thwart the legislative intent and avoid the underlying purpose of § 429.015; when clearly necessary the strict letter of the act must yield to the manifest intent of the legislature. BCI Corporation v. Charlebois Construction Co., 673 S.W.2d 774, 780 (Mo. banc 1984). He points to an earlier pronouncement that the "General Assembly [enacted] Chapter 429 to grant a meaningful method of...