Drywall Interior Systems Const., Inc. v. Ladue Bldg. & Engineering Corp., 62978
| Decision Date | 13 July 1993 |
| Docket Number | No. 62978,62978 |
| Citation | 857 S.W.2d 523 |
| Court | Missouri Court of Appeals |
| Parties | DRYWALL INTERIOR SYSTEMS CONSTRUCTION, INC., a Missouri Corporation, Appellant, v. LADUE BUILDING & ENGINEERING CORPORATION, a Missouri Corporation, Respondent. |
Warren W. Friedman, St. Louis, for appellant.
Suelthaus & Kaplan, P.C., Gino F. Battisti, St. Louis, for respondent.
Drywall Interior Systems Construction, Inc. [DISC] filed a petition against Ladue Building and Engineering Corporation [LBE] for breach of contract. The trial court sustained LBE's motion to dismiss, treating it as a motion for summary judgment. DISC was aware of an equitable mechanic's lien action filed pursuant to Sections 429.290 and 429.300 RSMo 1986 involving the real estate which was the subject of its contract, but failed to intervene. The conclusion of the equitable mechanic's lien suit bars a separate lawsuit. We affirm.
On July 25, 1989, DISC entered into a subcontract with LBE, who was acting as general contractor for a construction project for All American Indoor Sports, Inc. [All American]. DISC and LBE entered into a second subcontract on December 4, 1989. DISC filed a petition against LBE on April 10, 1992, alleging that LBE had breached the two subcontracts.
On June 23, 1992, LBE filed a motion to dismiss DISC's petition. LBE based its motion on the following: on March 23, 1990, All American and Lindbergh Mall Limited Partnership sued LBE and others for breach of contract; sixteen subcontractors, not including DISC, joined the lawsuit, having filed separate mechanic's liens and petitions to enforce those liens; LBE filed a counterclaim to the petition and cross-claims against all subcontractors; DISC had actual knowledge of the lawsuit and DISC's failure to intervene and assert its claims against LBE in that litigation acted as a bar to its breach of contract action against LBE. DISC filed an affidavit of its president, Jay Clifton, in which he admitted he had actual knowledge of the equitable mechanic's lien action between All American, Lindbergh Mall Limited Partnership, LBE and others.
On July 2, 1992, DISC filed a motion to consolidate, or in the alternative, a motion to intervene in the equitable mechanic's lien action. All American, Lindbergh Mall Limited Partnership and LBE had dismissed their claims against each other on February 24, 1992. On September 16, 1992, the trial court denied DISC's motion to consolidate and sustained LBE's motion to dismiss, treating it as a motion for summary judgment.
In the first point on appeal, DISC contends the trial court erred in granting LBE's motion to dismiss. DISC argues it is a denial of due process to preclude a non-lien claimant from bringing an action for breach of contract against a party who does not own the property that is subject to mechanic's liens, where the breach of contract claim and the liens involve the same construction project. DISC argues this is a denial of due process if the non-lien claimant is not joined in an equitable mechanic's lien lawsuit and is not given notice of the impact or consequences of failing to intervene in that lawsuit.
A breach of contract suit arising out of a construction project cannot be maintained and the proceedings must be stayed if an equitable mechanic's lien action has been filed relating to the same project. This is true whether the breach of contract action was filed before or after the mechanic's lien suit was filed. State ex rel. Kirkwood Excavating Inc. Stussie, 689 S.W.2d 131, 133 (Mo.App.1985), citing State ex rel. Clayton Green's Nursing Center, Inc. v. Marsh, 634 S.W.2d 462 (Mo. banc 1982).
In the Clayton Green's v. Marsh case the supreme court has interpreted the...
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