Coomes v. Slater Development Corp.

• Decision Date: 23 January 2001
• Citation: 36 S.W.3d 412
• Parties: (Mo.App. W.D. 2001) . Jack Coomes, d/b/a Jack Coomes Commercial and Steel, Appellant, v. Slater Development Corporation, Respondent, Nick Scurra d/b/a Consumer Homebuilders, Respondent. WD58155 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

36 S.W.3d 412 (Mo.App. W.D. 2001)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Jack Coomes, d/b/a Jack Coomes Commercial and Steel, Appellant, v. Slater Development Corporation, Respondent, Nick Scurra d/b/a Consumer Homebuilders, Respondent.

WD58155

Missouri Court of Appeals Western District

Handdown Date: 01/23/2001

Appeal From: Circuit Court of Saline County, Hon. John E. Frerking

Counsel for Appellant: Jo Annette Jacobs

Counsel for Respondent: George Lee Stafford and Robert E. Harris

Opinion Summary: Subcontractor Jack Coomes contracted with general contractor Nick Scurra to erect a building on Slater Development Corporation's property. After Coomes partially completed the project, the contract between Scurra and Coomes was terminated. Coomes filed a mechanics lien and a petition to enforce the lien. The trial court granted Scurra and Slater's motions to dismiss.

REVERSED AND REMANDED.

Court holds:

No summary provided.

Opinion Author: Thomas H. Newton, Judge

Opinion Vote: REVERSED AND REMANDED. Holliger, P.J., and Lowenstein, J., concur.

Opinion:

I. Factual and Procedural Background

Slater Development Corporation (SDC) owned a parcel of real property located in Saline County, Missouri, and entered into a contract with Nick Scurra (Scurra), who was to serve as the general contractor in a commercial construction project to build a discount store known as Place's. Mr. Coomes, a subcontractor, entered into a contract with Scurra on February 4, 1998, to erect a steel building for Place's. The contract price was set at approximately $97,000.00 for the completion of the building. Mr. Coomes provided the labor and material and brought the building to partial completion when Scurra terminated the relationship. Mr. Coomes was unable to complete the project. Neither Scurra nor SDC paid Mr. Coomes for any of the labor or materials. Mr. Coomes estimated that the value of the labor and materials provided were worth approximately $27,044.00.

Mr. Coomes then provided notice to SDC of his intent to file a statement of mechanic's lien on August 26, 1998. He filed his statement of mechanic's lien, which contained a legal description of the property, with the circuit clerk in Saline County. The lien also included a statement of account attached as an exhibit. Mr. Coomes then filed his petition to enforce the lien on December 2, 1998. SDC filed a motion to dismiss the petition on December 23, 1998, and Scurra filed his motion to dismiss on March 18, 1999.

The trial court sustained Scurra's motion to dismiss on November 17, 1999, because the petition failed to list a statement of account, and it did not incorporate the statement of mechanic's lien by reference. The trial court concluded that the petition failed to state sufficient facts giving rise to a cause of action. SDC filed a second motion to dismiss thereafter, and on December 8, 1999, the trial court sustained SDC's motion to dismiss on the same grounds. In the meantime, on December 3, 1999, before the trial court entered judgment in favor of SDC, Mr. Coomes filed a motion for leave to amend the petition to cure the deficiencies as outlined in the trial court's judgment in favor of Scurra. The court did not rule on Mr. Coomes' motion for leave to amend his petition.

Mr. Coomes appeals the dismissal of his petition to enforce the mechanic's lien. He raises three points on appeal. First, he alleges that the trial court erred in dismissing his petition and in failing to grant leave to amend it because his failure to include an itemized statement of account in the petition could be easily rectified, he made a timely request for leave to amend, and the trial court is required to grant leave freely. Next, he argues that the trial court erred in dismissing the petition for failure to state a cause of action because there is no legal authority to support the court's conclusion that the mechanic's lien statement must be incorporated by reference in the petition and the petition sufficiently invoked the appropriate law and put respondents on notice as to what he would prove at trial. Finally, Mr. Coomes contends that according to the statute, his petition alleged the necessary facts for him to secure his lien in that (1) he alleged a mechanic's lien was an appropriate remedy for him; (2) he identified himself as a subcontractor; (3) he described the preconditions for enforcement that he had met including filing a just and true account of the demand and a description of the property to be charged; and (4) he gave timely notice of his claim to the property owner.

II. Standard of Review

We review a motion to dismiss for failure to give rise to a cause of action by testing the adequacy of the plaintiff's petition.¹ In doing so, we assume that all of plaintiff's averments are true, and liberally grant plaintiff all reasonable inferences therefrom.² The petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case, and no attempt is made to weigh any facts alleged as to whether they are credible or persuasive.³

III. Legal Analysis

Mechanic's lien law is purely a creature of statute,⁴ and designed "to give security to mechanics and materialmen for labor and material furnished in improving the owner's property. The law should be construed as favorably to those persons as its terms will permit."⁵ Chapter 429 governs mechanics liens.⁶ Section 429.010 controls who may assert a mechanic's lien and states in pertinent part:

Any person who shall do or perform any work or labor upon, or furnish any material, fixtures . . .for any building, erection or improvement upon land, . . . or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, . . . upon complying with sections 429.010 to 429.340, shall have for his work or labor done, or materials, fixtures, engine, . . . a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of three acres.

Since Mr. Coomes is a subcontractor, who performed services under a contract with Scurra, section 429.010 allows him to assert a mechanic's lien to recover for his labor and materials.

Next, section 429.080 requires Mr. Coomes to file with the circuit court clerk of the proper county a just and true account of the demand due to him within six months after the indebtedness accrues. Section 429.080 states:

It shall be the duty of every original contractor, every journeyman and day laborer, and every other person seeking to obtain the benefit of the provisions of sections 429.010 to 429.340, within six months after the indebtedness shall have accrued to file with the clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known to the person filing the lien, which shall, in all cases, be verified by the oath of himself or some credible person for him.

Mr. Coomes filed his statement of mechanic's lien with the office of the Saline County Circuit Clerk on September 29, 1998, alleging that his last day of work on the project was on July 2, 1998, well within the six month limitation. The statement of account contained the following description of materials and labor:

Re: Slater Development Corporation, Owner

Nick Scurra d/b/a Consumer Homebuilders, Contractor(1) 125' x 150" x 14' Clear Low Side/RFC2 VL 90 ¼ 12 Roof

Slope, Single Slope

24 Gauge Standing Seam Roof-Galvalume Ultra Deck

26 Gauge R Panel Colored Sides/20/80 loading

Gutter and Down Spouts-Low Side Only

(6) 25' Bays/4" White Vinyl Insulation/Engineered Drawing

Bolt & Building

(1)40' x 10' Framed Opening Front

Columns Will Show in this Area -- /(1) 8 x 8 F Opening(1) Walk Door/ (1) 10' x 150' Overhang hyside to Soffit

Quote is for Steel Building Erected and Insulation

$136,000 total amount for completed building

10% Down Payment when building ordered/$13,600.00

$89,000 when building on site

$15,400.00 less $2,500.00 when Red Iron Set

$18,000.00 less $2,500.00 when Sheeted

Balance when trimmed

Red Iron Set per Contract$15,400.00

6/26/98 Sidewall Sheeting Up -- Balance on 2/3 Sheeting of Building10,200.00

Labor:

Two Trips to pick up scaffold removed from job site by Mr. Scurra

6/26/98 2 men 8 hours $45.00/hour$450.00

6/30/98 3 men 8 hours $65.00/hour544.00

Additional Trip regarding scaffolding

7/8/98 2 men 8 hours $45.00/hour$450.00

Total Amount Currently Due$27,044.00

The above Statement of Account was not amended at anytime thereafter.

Further, under section 429.100, Mr. Coomes was also required to give ten days notice of his intent to file the lien to the owner of the property setting out the amount and from whom it's due. Section 429.100 states:

Every person except the original contractor, who may wish to avail himself of the benefit of the provisions of sections 429.010 to 429.340, shall give ten days' notice before the filing of the lien, as herein required, to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due. Such notice may be served by any officer authorized by law to serve process in civil actions, or by any person who would be a competent witness. When served by an officer, his official return endorsed thereon shall be proof thereof, and when served by any other person, the fact of such service shall be verified by affidavit of the person so serving.

In compliance with the statute,...