Cgi Silvercote v. Custom Warehouse

• Decision Date: 18 June 2002
• Docket Number: No. ED 80009.,ED 80009.
• Citation: 77 S.W.3d 699
• Parties: CGI SILVERCOTE, INC., Appellant, v. CUSTOM WAREHOUSE, INC., and Jerry Lipps d/b/a Jerry Lipps Trucking Company, Respondents.
• Court: Missouri Court of Appeals

77 S.W.3d 699

CGI SILVERCOTE, INC., Appellant, v. CUSTOM WAREHOUSE, INC., and Jerry Lipps d/b/a Jerry Lipps Trucking Company, Respondents.

No. ED 80009.

Missouri Court of Appeals, Eastern District, Southern Division.

June 18, 2002.

Kenneth L. Dement, Jr., Sikeston, MO, for appellant.

Albert C. Lowes, Cape Girardeau, MO, for respondent.

ROBERT G. DOWD, JR., Judge.

CGI Silvercote, Inc. (CGI), appeals from the trial court's grant of summary judgment in favor of Custom Warehouse, Inc., and Jerry Lipps d/b/a Jerry Lipps Trucking (collectively referred to as Custom Warehouse) on CGI's petition to enforce a mechanic's lien. CGI contends the trial court erred in granting Custom Warehouse's motion for summary judgment because there was a genuine issue of material fact as to whether the amount owed was in dispute at the time Custom Warehouse issued the check with the notation "accept as payment in full." Because we find there is a genuine issue of material fact as to when the dispute arose, we reverse the trial court's grant of summary judgment and remand for further proceedings.

In January 1999, Custom Warehouse accepted a bid from CGI for roofing and insulation materials in the amount of $208,840.00 for construction of a warehouse. CGI is in the business of selling roofing materials and leasing equipment to install roofing materials. Custom Warehouse signed a lease agreement with CGI to rent machinery for the installation of the materials at a charge of $3.00 per day to commence 12 weeks after Custom Warehouse's receipt of the machines. CGI considered the lease agreement to be a separate contract from the $208,840.00 bid contract. Custom Warehouse considered the lease agreement to be part of the $208,840.00 bid contract.

Custom Warehouse paid CGI a total of $210,512.00 by way of four checks: a check for $48,410.78 dated April 29, 1999; a check for $28,719.09 dated May 14, 1999; a check for $63,211.45 dated June 14, 1999; and a final check for $70,170.68 dated October 22, 1999. The October 22, 1999, check for $70,170.68 had a notation in the bottom left corner on the front of the check which read, "ACCEPT AS PAYMENT IN FULL ONLY." This check was received into CGI's lock box and deposited into CGI's account. At the time Custom Warehouse issued the final check, Custom Warehouse was still in possession of CGI's machines.

CGI served notice of intent to file a mechanic's lien on Custom Warehouse on May 3, 2000, asserting a claim against Custom Warehouse for $41,923.45 as the remaining balance owed to CGI on material and equipment supplied to Custom Warehouse. On May 15, 2000, CGI filed a mechanic's lien. On June 8, 2000, Custom Warehouse sent a letter stating it paid $210,000.00 for the insulation and believed the contract was fulfilled. In the letter, Custom Warehouse stated the machines were ineffective and did not intend to pay anything further towards the $41,923.45. On August 2, 2000, CGI filed a Petition to Enforce Mechanic's Lien. Thereafter, Custom Warehouse filed a motion for summary judgment with affidavits stating there was a dispute about the amount Custom Warehouse owed CGI when Custom Warehouse issued a final payment of $70,170.68 with the notation, "ACCEPT AS PAYMENT IN FULL ONLY." In its motion for summary judgment, Custom Warehouse maintained that when CGI negotiated the check it was an accord and satisfaction of the dispute. CGI responded to Custom Warehouse's motion for summary judgment stating that at the time of the final payment made by Custom Warehouse, there was no dispute regarding the amount Custom Warehouse owed...