Construction Equipment Management, Inc. v. Dunhill Development Corp.
Decision Date | 22 November 1994 |
Docket Number | No. 64783,64783 |
Citation | 892 S.W.2d 639 |
Parties | CONSTRUCTION EQUIPMENT MANAGEMENT, INC., et al., Respondents, v. DUNHILL DEVELOPMENT CORPORATION, et al., Appellants. |
Court | Missouri Court of Appeals |
Michael R. Allen, Joseph R. Burcke, St. Louis, for appellants.
Byron E. Francis, John S. Metzger, St. Louis, for respondents.
This appeal involves two separate equitable lien actions. First, Appellants 1 appeal from the trial court's judgment in favor of mechanics' liens claimants Ronald Gass d/b/a Gass Concrete Contractors (Gass) and Winter Brothers Concrete Company (Winter Bros.). Second, Appellants appeal the trial court's judgment in favor of Richard and Shirley Allan (Allans), holders of a vendee's lien. We affirm.
Dunhill Development Corporation (Dunhill) was formed by Lieberman Corporation for the purpose of developing Dunhill Farms Subdivision (Subdivision). Dunhill ceased doing business on January 3, 1989. At this time, Dunhill was in the process of constructing single-family homes on Lots 2, 31, 46 and 71 of the Subdivision. The home on Lot 45 had been completed and title had been conveyed to Allen and Marilyn Rickard. Dunhill also held title to Lots 2, 31, 46 and 71 on January 3, 1989, but was subsequently divested of these titles through foreclosures.
Following the demise of Dunhill, various contractors filed mechanics' liens and an equitable action was brought under § 429.270, RSMo 1986, to enforce these liens. The trial court enforced the mechanics' liens filed by both Gass and Winter Bros. against Lots 2, 31, 45, 46 and 71. The trial court also enforced the $70,000 vendee's lien the Allans claimed against Lot 31. Appellants, as the homeowners, holders of deeds of trust, and trustees with real property interests in the real estate once owned by Dunhill, appeal from the trial court's decision.
Gass contracted with Lieberman Corporation, the general contractor, to do the flatwork construction on Lots 2, 31, 45, 46 and 71. As the flatwork contractor, Gass provided the labor and materials for the construction of driveways, garage floors, patios, sidewalks and porches. Gass purchased the concrete for its jobs from Winter Bros. Neither Gass nor Winter Bros. received any payment from Dunhill or Lieberman for the concrete or flatwork. Therefore, each filed mechanic's lien claims against lots in the Subdivision in the following amounts:
In Points I and III, Appellants allege the mechanics' liens filed by both Gass and Winter Bros. did not meet the requirements of § 429.080, RSMO 1986, as they did not contain "a just and true account of the demand due him or them after all just credits have been given."
An original [general] contractor may make a just and true account by simply submitting a statement of his account without itemization because he contracted directly with the landowner. Grgic v. Cochran, 740 S.W.2d 358, 360 (Mo.App.1987). However, there is no contractual relationship between the subcontractor and the owner. Thus, the owner cannot be charged with having knowledge of what materials subcontractor agreed to supply under its contract with the general contractor. Commercial Openings, Inc. v. Mathews, 819 S.W.2d 347, 350 (Mo. banc 1991). As a result, the subcontractor's lien statements must contain sufficient details and itemizations to allow the owner to investigate and determine the propriety of the claim. Id. at 350. In order to be sufficient, a subcontractor's statement must " 'advise the owner or the public of the total amount due and the nature of the materials furnished.' " Id. at 350, citing Glasco Elec. Co. v. Best Elec. Co., 751 S.W.2d 104, 108 (Mo.App.1988).
Appellants allege the mechanic's lien statements filed by both Gass and Winter Bros. were insufficient because they did not sufficiently specify the quantity and types of materials furnished, nor did they itemize and describe the type of labor performed. Both Gass and Winter Bros. attached copies of the invoices they sent to Lieberman Corporation to their respective mechanics' liens.
First, the invoices Gass attached to its mechanic's lien, using Lot 45 as an example, were in the following form:
Porch 5'6 x 14'8 80.68 sq' at $3.25 per sq' $262.21 Concrete 1/2 yard 1/2 yard at $56.00 per yard $ 28.00 1/2 " Steel 20' 20 lineal' at $.38 per lineal' $ 7.60 Sill 7'4" 7.34' at $47.25 per sq' $ 53.21 Steps (2) 8' 16 sq' at $7.25 per sq' $116.00 Walk 17' x 5' 85 sq' at $1.51 per sq' $128.35 Walk 59'4" x 4' 237.36 sq' at $1.51 per sq' $358.41 Steel 1/2 " (4) 20' 80 lineal' at $.38 per lineal' $ 30.40 Patio 18' x 16' 288 sq' at $1.94 per sq' $558.72 Walk 35' x 3' 105 sq' at $1.51 per sq' $158.55 Walk 10'2" x 4'6" 45.76 sq' at $1.51 per sq' $ 69.09 Steel 1/2 " (4.5) 20' 90 lineal' at $.38 per lineal' $ 34.20
Appellants argue these invoices do not contain a sufficient description of the quantity of concrete Gass used because the depth of the concrete is not listed. At trial, Ron Gass testified Gass billed for its concrete flatwork on a per square footage basis. He stated the price per square foot, and the depth of the concrete, were determined by what the flatwork was for, i.e. a basement or a garage. He further testified the standard in the concrete flatwork industry is to bill on a per square footage basis.
Appellants rely heavily on L. Waldo & Associates v. PVO Foods, Inc., 852 S.W.2d 424, 425 (Mo.App.1993), a recent case decided by this court. In L. Waldo, the subcontractor's bill merely contained a lump sum amount due for labor and materials, without itemizing what labor was performed or what materials were provided. However, Gass's invoices itemized each flatwork job performed and the square footage each job covered. We find Gass's statements were sufficient to meet the requirements of § 429.080.
Winter Bros. also attached a copy of its invoices to its statements. Its invoices list the amount of concrete provided to Gass in cubic feet. Appellants admitted Winter Bros.' invoices sufficiently identified the amount of concrete Winter Bros. supplied to Gass. However, Appellants allege Winter Bros.' "hauling charges," as charges for labor, were insufficient because they failed to state the driver's hourly rate and the number of hours it took to deliver the concrete. Curtis Cotner, the general manager of Winter Bros., testified the charge for hauling the concrete is included in the total price per cubic foot of concrete. It is not a separate charge for labor. Cotner further testified this was the standard method of billing within the industry. There was no need for Winter Bros. to list the amount of time it took to deliver the concrete and the driver's hourly rate, as the hauling charge is determined by the cubic feet of concrete delivered, not the amount of time it takes to deliver it. Winter Bros. mechanic's lien statement is sufficient as it advises the owners of the nature of the materials furnished and the total amount due. See, Commercial Openings, 819 S.W.2d at 350. Therefore, Points I and III are denied.
In Point II, Appellants allege the trial court erred by enforcing the mechanics' liens of both Gass and Winter Bros., Gass's subcontractor, for the same concrete material and by allowing both to recover prejudgment interest on this claim because it resulted in duplicative liability for the same materials. We disagree.
Section 429.010, RSMo 1986, specifically provides:
Any person who shall do or perform any work or labor upon, or furnish any material, ... for any building ... 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 sections 429.010 to 429.340, shall have for his work or labor done, or materials, ... a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same is situated....
A materialman, such as Winter Bros., is entitled to a mechanic's lien if he establishes the materials he provided actually went into or were used in the construction of the structure upon which he seeks to impose his lien. Kansas City Elec. v. Bomar Elec. Co., 581 S.W.2d 411, 413 (Mo.App.1979). We find Winter Bros. complied with this requirement. Both Gass and Cotner testified Winter Bros. supplied the concrete Gass used to do all of the flatwork for Lots 2, 31, 45, 46 and 71.
Further, § 429.210, RSMo 1986, provides:
The court shall ascertain, by a fair trial in the usual way, the amount of the indebtedness for which the lien is prosecuted, and may render judgment therefore in any sum not exceeding the amount claimed in the demand filed with the lien, together with interest and costs....
In Dave Kolb Grading, Inc. v. Lieberman Corp., this court stated, "it would be an incomplete remedy to allow a lien for the reasonable cost of labor and materials but not interest thereon 'after the account should have been paid.' " 837 S.W.2d 924, 933 (Mo.App.1992), citing Mid-West Eng'g & Constr. Co. v. Campagna, 421 S.W.2d 229, 233 (Mo.1967). We find the trial court did not err in granting both Gass's and Winter Bros.' mechanics' liens and awarding prejudgment interest to both. Moreover, the trial court properly limited its judgment in favor of Winter Bros. by stating it could not execute on its mechanic's lien unless ...
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