First Florida Bldg., Inc. v. Safari Systems, Inc., KCD

• Citation: 570 S.W.2d 728
• Decision Date: 31 July 1978
• Docket Number: No. KCD,KCD
• Parties: FIRST FLORIDA BUILDING, INC., a corporation, Plaintiff-Appellant, v. SAFARI SYSTEMS, INC., a corporation, Safari Inc., Columbia, a Limited Partnership, Larry M. Woods, and Legal Holder of Note Secured by Deed of Trust recorded in Book 406, , Deed of Trust Records, Boone County, Missouri, Defendants-Respondents. 29353.
• Court: Court of Appeal of Missouri (US)

Page 728

570 S.W.2d 728

FIRST FLORIDA BUILDING, INC., a corporation, Plaintiff-Appellant, v. SAFARI SYSTEMS, INC., a corporation, Safari Inc., Columbia,

a Limited Partnership, Larry M. Woods, and Legal Holder of

Note Secured by Deed of Trust recorded in Book 406, Page

483, Deed of Trust Records, Boone County, Missouri,

Defendants-Respondents.

No. KCD 29353.

Missouri Court of Appeals, Kansas City District.

July 31, 1978.

Patrick J. Eng, Welliver, Atkinson & Eng, Columbia, for plaintiff-appellant.

Larry M. Woods, Sapp, Woods & Orr, Columbia, for defendants-respondents, Larry Woods and First Bank of Commerce.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

WASSERSTROM, Judge.

The question for determination is whether plaintiff First Florida Building, Inc. is entitled to a mechanic's lien. The trial court held no, and First Florida appeals.

In the early 1970s, Safari Systems, Inc. was engaged in building and operating automobile trailer camp grounds in various locations throughout the United States. In 1972 it decided to build and install such a unit near Columbia, Missouri, on a 200 acre tract on which there stood a preexisting camp ground which covered approximately 20 to 30 acres. Safari had been contracting with First Florida for the erection of similar camp grounds elsewhere, and in October, 1972, Safari entered into a contract with First Florida for the building of the Boone County, Missouri unit. That original contract provided for First Florida to be paid the cost of the work performed plus 10% As its contractor's fee. Article 6.2 further provided that: "The maximum cost to the Owner, including the Cost of the Work and the Contractor's Fee, is guaranteed not to exceed the sum of ONE HUNDRED THIRTY THOUSAND & no/100 DOLLARS ($130,000.00); such Guaranteed Maximum Cost shall be increased or decreased for Changes in the Work . . ."

Article 7.1 further provided: "Should the cost of the work performed plus the ten percent (10%) fee exceed the guaranteed maximum price as adjusted by Change Orders, the Contractor shall be paid only the adjusted guaranteed maximum price."

In March, 1973, the parties agreed to an expansion of the contract to cover additional work including the remodeling of existing facilities. This additional work was authorized by letter agreement dated March 7, 1973, which provided: "It is understood that additional work should be performed on a cost plus 10% Basis, and that the ceiling price of the contract shall be raised to $190,000.00."

All of the work to be done by it was completed by First Florida in June, 1973. By that time Safari had paid $132,000, but it was in financial difficulties and unable to pay the balance due First Florida. The parties therefore entered into an agreement for extension of the time for payment. While the parties were still proceeding under that extension agreement, the statutory deadline for First Florida to file a mechanic's lien came up, and on December 6, 1973, it did file its mechanic's lien.

Thereafter Safari paid an additional $19,912.52. However it then became insolvent and ultimately went through bankruptcy. The final balance left due as claimed by First Florida was $42,350.76, for which First Florida filed timely suit on May 29, 1974.

At the trial, Safari defaulted and the court entered a money judgment against it as prayed. The other parties proceeded to trial, at the conclusion of which the trial court filed a memorandum opinion finding: "The Court cannot with any degree of certainty, from the evidence adduced, determine those matters which are properly lienable from those which are not. Accordingly, judgment for defendants and against plaintiff on mechanics lien."

On this appeal, First Florida relies on the following points: 1) that the trial court made insufficient findings of fact; 2) that the court erred in finding that First Florida had not filed a just and true account; and 3) that the court erred in failing to find that First Florida had a right to allocate the final $19,912.52 paid by it to cover and thereby eliminate nonlienable items. Each of those points will be discussed in turn and shown to be without merit. Further, respondents argue additional points for affirmance, one of which will be discussed in Section IV below.

I. Sufficiency of the Findings

First Florida takes exception to the court's failure to make findings of fact although allegedly requested by counsel to do so. The record fails to support First Florida's assertion that it made such a request. The transcript shows only that: "Plaintiff files Request for Opinion." Rule 73.01-1(b) provides that in a court tried case, the court shall file a brief opinion containing the grounds of decision if so requested by any party and shall, If requested by counsel, include finding "on such controverted fact issues As have been specified by counsel " (emphasis added). Counsel here requested an opinion and the court complied. Counsel did not specify any controverted fact issues upon which it requested findings, and the trial court cannot be charged with error for not making findings which were not requested.

Moreover, even if a request for specified findings had been made, a failure to comply would not constitute reversible error, and all fact issues would be considered as having been found in accordance with the result reached. P.I.C. Leasing, Inc. v. Roy A. Scheperle Const. Co., Inc., 489 S.W.2d 219, 222(7) (Mo.App.1972). See also Hahn v. Hahn, 569 S.W.2d 775 (Mo.App. 1978).

II. Sufficiency of the Statement of Account

Section 429.080 (all statutory references are to RSMo 1969) provides that in order to obtain a mechanic's lien, the original contractor must within six months after completion of the work file with the clerk of the circuit court "a just and true account" of the demand due him. A failure to comply with this requirement calls for the vitiation of the entire lien unless the error is a "result of honest mistake or inadvertence without intent to defraud and if the nonlienable can be separated from the lienable items." Sears, Roebuck & Co. v. Seven Palms Motor Inn, 530 S.W.2d 695 (Mo. banc 1975).

First Florida admits that it made some errors in its statement of account filed December 6, 1973, but it contends that these admitted errors and any others which it may have committed were inadvertent and separable within the meaning of the rule last above quoted. It therefore contends that, contrary to the ruling of the trial court, a lien should have been allowed in its favor in a corrected amount.

Respondents have cited 19 alleged errors in First Florida's statement of account which respondents argue are inconsistent with good faith on the part of First Florida and also present a situation in which nonlienable amounts cannot be separated from lienable items. Of those 19 alleged errors, First Florida conceded three at the time of trial. These mistakes related to $150 for trailer rental, $148.20 for a supervisor's expense and $139.03 overstatement of payroll taxes. If these three items represented the full extent of what was involved, those errors could be treated as inadvertent mistakes readily separable and could be deducted from the amount due without vitiating the entire claim of lien. However, these three errors are far from all.

At the close of trial, First Florida filed a reply brief in which it conceded two more errors in its account. The first of these is a small item, $161.15 for a saw which First Florida included in its account on the theory that the saw was consumed in the course of the job. First Florida in its after trial brief conceded that the saw was not so consumed, and it agreed that this item should properly be deleted from the account. This error is quite minor and could also be treated as inadvertent error of a separable item similar in nature to the first three errors already discussed.

The second error conceded by First Florida in its after trial brief stands on a different footing. This second item relates to the cost of an office located on land leased by Safari outside of (although near) the 200 acre tract owned by it. In its after trial brief, First Florida admitted that it cannot claim a lien with respect to improvements on land never owned by Safari; but it offered by way of excuse that it did not have reason to suspect the true state of facts until about four months before trial and that the full facts were not developed in this respect until the evidence at trial. Inasmuch as First Florida by its own admission did have some reason to suspect the true facts at least for four months before trial, and since all the pertinent facts were readily available to it at all times, it is difficult to pass off this error as mere good faith inadvertence. Even accepting First Florida's claim of good faith in this regard, this item presents the insuperable objection that the amount of labor and material expended on the off-site office is not clearly established as to amount. Collins, First Florida's manager in charge of accounting functions, admitted in his testimony that First Florida had no record reflecting the costs of constructing or improving that office. The evidence which was introduced concerning those costs were mere loose estimates ranging from $2,000 to $5,000. First Florida, as lien claimant, had the burden of proving the amount of this item as well as all others included in its statement. Bremer v. Mohr, 478 S.W.2d 14 (Mo.App.1972). Its offer of mere estimates as to this item could be accepted or not according to the judgment and discretion of the fact finder, in this case the trial judge. The conclusion by the trial court that the varying estimates did not establish this item "with any degree of certainty" cannot be successfully challenged.

Of the remaining items of which complaint is made by respondents, it will be sufficient to discuss only two. The first of these is the item of so-called "extras." In the mechanic's...