Channing v. Brindley-Sullivan, Inc.

• Decision Date: 15 June 1993
• Docket Number: No. 62843,INC,BRINDLEY-SULLIVA,62843
• Citation: 855 S.W.2d 463
• Court: Missouri Court of Appeals
• Parties: Tom CHANNING, d/b/a T & S Concrete Paving Co., a corporation, Plaintiff-Appellant, v., et al., Defendants-Respondents.

Page 463

855 S.W.2d 463

Tom CHANNING, d/b/a T & S Concrete Paving Co., a corporation, Plaintiff-Appellant, v. BRINDLEY-SULLIVAN, INC., et al., Defendants-Respondents.

No. 62843.

Missouri Court of Appeals,

Eastern District,

Division Seven.

June 15, 1993.

Gary Seltzer, Clayton, for plaintiff-appellant.

Jenkins, Kling & Sauerwein, P.C., Stephen R. Wigginton, Clayton, for defendants-respondents.

KAROHL, Chief Judge.

Tom Channing, Inc., d/b/a T & S Concrete Paving Company, [contractor] sued the following parties to recover for work done and to impress a mechanic's lien on certain real estate: Brindley-Sullivan, Inc., the owner and developer of a residential subdivision; Tarquad Corp., John McEvoy, and C & P Venture, which have interests in the real estate pursuant to deeds of trust; Mark Twain Mortgage Company, which holds both deeds of trust on certain lots and title on other lots; and individuals who own lots in the subdivision. Summary judgment was entered in favor of all defendants, except Brindley-Sullivan, Inc. Contractor appeals the summary judgment. We reverse and remand because a material issue of fact remains in dispute on the issue of timely filing of lien.

On November 28, 1988, developer hired Channing, Inc., as a general contractor to construct streets and sidewalks in the Audubon Woods Subdivision in St. Louis County, Missouri. The work proceeded in three phases. The third and final phase required the paving of two streets known as Big Bend Woods and Pheasant Woods Drive for $46,814.95. Contractor then performed paving work on these two streets. On February 6, 1990, contractor submitted an invoice to developer requesting payment for the work it provided on Big Bend Woods and Pheasant Woods Drive and other work previously performed in Phase II. On July 23, 1990, contractor received a payment, which it applied to the balance owed as of February 6, 1990, leaving a balance of $11,675.93.

Thereafter, developer, Brindley-Sullivan, Inc., requested that contractor seal the streets in the subdivision so they would pass inspection by St. Louis County. On December 20, 1990, contractor spent all day on the job site performing the work. Contractor submitted the invoice for the sealing to Charlie Liebert, who had replaced Brindley-Sullivan, Inc., for Phase III of the project. Liebert paid the invoice for the December 20, 1990, sealing work.

Contractor attempted to collect the balance from the original developer, Brindley-Sullivan, Inc. When such efforts failed, it filed a mechanic's lien on May 19, 1991. The lawsuit was filed on August 19, 1991. On September 10, 1991, defendant-property owners filed a motion to dismiss or, in the alternative, motion for a more definite statement. An amended petition was filed in February 1992. Defendants filed motions for summary judgment because the mechanic's lien was not timely filed and, therefore, was barred by § 429.080 RSMo1986.

The trial court rejected contractor's argument that the work performed on December 20, 1990, was pursuant to the original contract. It granted defendant-property owners' motions for summary judgment. A default judgment on the contract claim was entered against Brindley-Sullivan, Inc., concluding all claims in the litigation.

On appeal, contractor argues the court erred in awarding defendant-property owners summary judgment because the summary judgment facts included affidavit evidence the work done on December 20, 1990, was part of the work required by the contract. Summary judgment may be granted only in cases in which the movant can establish there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Rule 74.04. A trial court must exercise great care in granting summary judgment, frequently referred to as "an extreme and drastic remedy." Ernst v. Ford Motor Co., 813 S.W.2d 910, 915 (Mo.App.1991).

When considering appeals from summary judgments, we review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371 at 376 (Mo. banc 1993) (decided April 20, 1993). Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. ITT Commercial Finance Corp., at 376. We accord the non-movant the benefit of all reasonable inferences from the record. Id.

Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. at 376. The propriety of summary judgment is purely an issue of law. Because the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment. Id. at 376.

A mechanic's lien must be filed "within six months after the indebtedness ... shall have accrued." Section 429.080 RSMo1986. Here, contractor filed the lien statement on May 19, 1991. The statutory time period begins to run on the last date that labor was performed or materials incorporated in construction of the building by the claimant. Westerhold v. Mullenix Corp., 777 S.W.2d 257, 265 (Mo.App.1989). The mere lapse of time between the rendering of services as items in a contract on a running account is insufficient to commence the running of the statute of...