Bush Construction v. Kansas City Factory Outlets

Decision Date20 February 2001
Citation37 S.W.3d 852
Parties(Mo.App. W.D. 2001) . Bush Construction Machinery, Inc., Appellant v. Kansas City Factory Outlets, L.L.C., Stahl Construction Company, Heartland Corporation, Michigan National Bank and Michael G. O'Flaherty, Trustee for Michigan National Bank, Respondent WD58616 Missouri Court of Appeals Western District Handdown Date: 0
CourtMissouri Court of Appeals

Appeal From: Circuit court of Lafayette County, Hon. Robert Ravenhill, Judge

Counsel for Appellant: Thomas D. Rodenberg
Counsel for Respondent: Gary V. Fulghum

Opinion Summary: Bush Construction Machinery, Inc., appeals a circuit court judgment dismissing its petition, which included a count for enforcement of a mechanic's lien and a count for quantum meruit.

DISMISSED.

Court holds:

Tthe trial court's judgment is not final because it did not address the quantum meruit count of the petition or make an express determination that there was no reason for just delay under Rule 74.01(b). The appeal is dismissed for lack of jurisdiction.

Opinion Author: Harold L. Lowenstein

Opinion Vote: DISMISSED FOR LACK OF JURISDICTION. Ellis, P.J., Lowenstein and Breckenridge, J.J. concur.

Opinion:

Bush Construction Machinery, Inc. (Bush) appeals from the circuit court's judgment dismissing its petition, which included a count for enforcement of a mechanic's lien against property in Odessa owned by the Kansas City Factory Outlets, L.L.C. (KCFO), for the nonpayment of equipment rental fees to which Bush claims were owed to it. This court finds that the trial court's judgment is not final because it did not address the other count of the petition for quantum meruit, or make an express determination that there was no reason for just delay under Rule 74.01(b). The appeal is dismissed for lack of jurisdiction.

Factual and Procedural History

Respondent Stahl Construction Company (Stahl) was the general contractor for KCFO on the construction of an outlet mall in Odessa. Stahl subcontracted with Heartland Corporation (Heartland), also a respondent, to do the excavation work on the project. In May 1995, Heartland leased a "loader" and a "scraper" from Bush to perform some of the excavation work on the project.

On January 25, 1996, Bush filed a statement of mechanic's lien claiming that it had not been paid $30,434.39 it was owed for the equipment rental. In July 1996, Bush filed this petition in circuit court naming KCFO, Stahl, Heartland, Michigan National Bank, and Michael G. O'Flaherty, Trustee for Michigan National Bank, as defendants. Bush sought to foreclose its mechanic's lien in the first count of the petition, and asserted a claim of quantum meruit against KCFO and Stahl in the second count of the petition. The controversy on the mechanic's lien count centered on whether the equipment was even used on the Odessa site and, in particular, whether the machines were used six months prior to the filing of the lien. Bush found one piece of the equipment at another site in August 1995, well after the lease period had expired. Section 429.080, RSMo1994, requires a lien such as this one to be filed within six months from the date the indebtedness has accrued. After a trial, the circuit court issued a judgment, stating, in pertinent part:

NOW ON THIS 10th day of April 2000, the Court being fully advised herein finds that Plaintiff has failed to demonstrate its equipment was used on the real estate owned by Defendant Kansas City Factory Outlets, L.L.C., within six months of the date of filing of Plaintiff's Mechanic's Lien Statement.

IT IS THEREFORE THE ORDER AND JUDGMENT OF THE COURT that Plaintiff's Petition for Enforcement of Mechanic's Lien be and is hereby dismissed with costs assessed against Plaintiff.

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6 cases
  • Shelter Mut. Ins. Co. v. Vulgamott
    • United States
    • Missouri Court of Appeals
    • 21 Enero 2003
    ...same legal rights open for future adjudication is not a final judgment under Rule 74.01(b).' Bush Constr. Mach., MC. v. Kansas City Factory Outlets, EEC., 37 S.W.3d 852, 854 (Mo.App. W.D.2001) (quoting Asbury v. Crawford Elec. Co-op., Inc., 9 S.W.3d 774, 777 (Mo.App. S.D.2000)). A reviewing......
  • Avila v. Community Bank of Virginia
    • United States
    • Missouri Court of Appeals
    • 26 Agosto 2003
    ...banc 1997). Appellate jurisdiction is contingent upon the existence of a final judgment. Bush Const. Machinery, Inc. v. Kansas City Factory Outlets, L.L.C., 37 S.W.3d 852, 854 (Mo.App. W.D.2001). A judgment is final when it disposes of all issues and parties in a case and leaves nothing for......
  • Gunter v. City of St. James
    • United States
    • Missouri Court of Appeals
    • 20 Diciembre 2002
    ...legal rights open for future adjudication is not a final judgment for purposes of appeal. Bush Const. Machinery, Inc. v. Kansas City Factory Outlets, L.L.C., 37 S.W.3d 852, 854 (Mo. App. W.D.2001) We find there is no judgment that disposes of all claims directed to all parties, nor has ther......
  • St. Joseph Ambulatory v. Smith
    • United States
    • Missouri Court of Appeals
    • 10 Agosto 2004
    ...neither party originally raised the issue of jurisdiction, this court must do so sua sponte. Bush Constr. Mach., Inc. v. Kansas City Factory Outlets, L.L.C., 37 S.W.3d 852, 854 (Mo.App.2001). This court only has jurisdiction over final judgments. Id. A judgment is final, and thus appealable......
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