Glenstone Block Co. v. Pebworth

• Decision Date: 01 October 2008
• Docket Number: No. SD 28734.,SD 28734.
• Citation: 264 S.W.3d 703
• Parties: GLENSTONE BLOCK COMPANY, d/b/a Glen Block Hardware & Building Supplies, a Missouri Corporation, Respondent, v. Vincent K. PEBWORTH, d/b/a VIP Property Improvements, Defendant, and Parkview Bay Development, Inc., Union Planters Bank, and Jefferson Financial, Inc., et al., Appellants.
• Court: Missouri Court of Appeals

264 S.W.3d 703

GLENSTONE BLOCK COMPANY, d/b/a Glen Block Hardware & Building Supplies, a Missouri Corporation, Respondent, v. Vincent K. PEBWORTH, d/b/a VIP Property Improvements, Defendant, and Parkview Bay Development, Inc., Union Planters Bank, and Jefferson Financial, Inc., et al., Appellants.

No. SD 28734.

Missouri Court of Appeals, Southern District, Division One.

October 1, 2008.

James D. Sickal, Curran & Sickal, Osage Beach, for appellants.

Sherrie N. Hamner and Ronald K. Carpenter, Phillips, McElyea, Carpenter & Welch, P.C., Camdenton, for respondent.

ROBERT S. BARNEY, Judge.

Defendants Parkview Bay Development, Inc. ("Parkview"), Union Planters Bank ("Union Planters"), and Jefferson Financial, Inc. ("Jefferson Financial") (collectively "Appellants") appeal the trial court's judgment in favor of Glenstone Block Company, d/b/a Glen Block Hardware & Building Supplies ("Respondent").¹ The trial court adjudged that Mr. Pebworth was liable to Respondent in the net amount of $18,629.32 together with certain prejudgment interest and imposed a special lien upon Parkview's property. Further, the trial court's judgment established that the deed of trust filed by Union Planters and Jefferson Financial was, in fact, a construction loan such that the trial court determined the deed of trust was inferior to Respondent's mechanic's lien. Appellants assert five points of trial court error.

Viewing the evidence in the light most favorable to the trial court's judgment, Bush Constr. Machinery, Inc. v. Kansas City Factory Outlets, L.L.C., 81 S.W.3d 121, 122 (Mo.App.2002), the record reveals that in May or June of 2001, Mr. Pebworth, a general contractor, "contracted with [Respondent] to provide materials for the construction of a block wall for [Parkview]" at the Parkview Bay North Condominium Subdivision ("the Condominium Complex"). Bruce Barton ("Mr. Barton"), an employee of Respondent, testified that he and Mr. Pebworth verbally agreed at that time that Respondent would "manufacture and supply" the block for his project at the Condominium Complex. Mr. Barton testified that it was estimated that Mr. Pebworth would need a very large amount of "Rockwood classic" blocks for the project and Mr. Pebworth made an advance payment in the amount of $12,009.20.² Mr. Barton testified that Respondent had already made "two or three deliveries of block" to the Condominium Complex prior to the advance payment being made and that, thereafter, Mr. Pebworth returned some of the block such that by August 21, 2001, the initial payment was "totally used up" and the parties were "even on the amount of money [Mr. Pebworth] paid [Respondent] and what [Respondent had] delivered."³ At some point in time thereafter, Mr. Pebworth set up a charge account with Respondent and charged items supplied to the Condominium Complex project as well as other projects to that account. Respondent last supplied block to the Condominium Complex at Mr. Pebworth's request on October 2, 2001, and as of that date Respondent contended that Mr. Pebworth owed Respondent $21,072.77 for block supplied for the Condominium Complex project.

On November 26, 2001, Respondent gave written notice of its intention to file a mechanic's lien per section 429.100⁴ to Parkview's registered agent. Thereafter, on December 19, 2001, Respondent filed its "Statement of Mechanic's Lien" per section 429.080. This Statement of Mechanic's Lien contained thirty-three pages of invoices relating to Mr. Pebworth's account with Respondent and listed the owners of the subject property as Parkview and individual condominium unit owners who owned condominiums in the Condominium Complex at the time the project began in June of 2001.

On February 1, 2002, Respondent filed an "Amended Statement of Mechanic's Lien," which apparently corrected the legal description for the Condominium Complex listed in the original Statement of Mechanic's Lien, but otherwise contained the same exhibits and assertions of fact.

On April 22, 2002, Respondent filed its "Petition for Enforcement of Mechanic's Lien" ("petition for mechanic's lien") against Mr. Pebworth, Union Planters, Jefferson Financial, Parkview, and, in addition, various individual condominium unit owners. On December 13, 2002, Appellants filed a "Motion for Summary Judgment Against Plaintiff" ("motion for summary judgment") and an "Alternative Motion for Summary Judgment" ("alternative motion for summary judgment"). The motion for summary judgment was withdrawn by Appellants on April 15, 2003. On April 18, 2003, Respondent then voluntarily dismissed its petition for mechanic's lien as it related to the individual condominium unit owners and, by leave of court, filed its "Amended Petition for Enforcement of Mechanic's Lien" ("amended petition for mechanic's lien"). On July 15, 2003, Appellants' alternative motion for summary judgment was overruled by the trial court.

A trial was held on June 24, 2004. The trial court found in its "Findings of Fact & Conclusions of Law" that "all of the materials described on Exhibit A ..." were used by Mr. Pebworth to construct a wall at the Condominium Complex; that the prices charged by Respondent were "fair and reasonable;" that the invoices presented were correct "except for ... the invoice labeled as page 31 ... in the amount of $32.17" and the "invoice on page 36 ... in the amount of $21.45;" that the inclusion of pages 36 and 31 into Exhibit A "was an inconsequential and inadvertent error and does not defeat [Respondent's] mechanic's lien;" that after deducting the invoices on pages 31 and 36 from the amount of $21,072.77, which was the amount stated in the amended petition for mechanic's lien, the amount owed to Respondent was $21,019.15; that Mr. Pebworth returned "a certain amount of blocks to Respondent such that he should receive a credit of $2,389.83 from Respondent on the account;" and, accordingly, the amount owed to Respondent by Mr. Pebworth was $18,629.32.

The trial court further found that timely notice of the filing of the mechanic's lien was given to Parkview and that Respondent met all of the statutory requirements relating to the filing of the mechanic's lien. Additionally, the trial court found that pursuant to section 431.180.2 Respondent was "entitled to be awarded interest on the unpaid balance ... from the date the payment was due. ..." The trial court also concluded that a deed of trust between Parkview, Union Planters, and Jefferson Financial "is a construction loan deed of trust and is, therefore, inferior to [Respondent's] mechanic's lien."

As a result of the foregoing findings of fact and conclusions of law, the trial court adjudged that Mr. Pebworth owed Respondent the net amount of $18,629.32 "with interest at three quarters of one percent ... per month from and after October 2, 2001, for costs of this action and to have execution therefore on the property of [the Condominium Complex owned by Parkview]," and that Respondent's mechanic's lien "is a special lien and is prior, superior and senior to the interests of [Union Planters and Jefferson Financial]." This appeal by Parkview, Union Planters, and Jefferson Financial followed.

Appellants' first point relied on asserts the trial court erred in denying their "alternative motion for summary judgment and/or entering judgment in favor of Appellant[s]" because Respondent failed to join all of the individuals who are individual condominium unit owners to the lawsuit and also failed to provide the individual owners with the proper statutory notice.

As a general rule, "`[a] trial court order denying a party's motion for summary judgment is not reviewable, even when the appeal is taken from the final judgment in the case.'" In re Care and Treatment of Johnson, 161 S.W.3d 873, 880 (Mo.App.2005) (quoting Reis v. Peabody Coal Co., 935 S.W.2d 625, 632 (Mo. App.1996)). Allegations related to the denial of a motion for summary judgment by a losing party will only be reviewed "when its merits are completely intertwined with a grant of summary judgment in favor of an opposing party." Transatlantic Ltd. v. Salva, 71 S.W.3d 670, 675-76 (Mo.App. 2002). That is not the situation in the present case. Nevertheless, in the interest of clarity, we will analyze Appellants' first point. We will view the evidence in the light most favorable to the trial court's judgment. Bush Constr. Machinery, Inc., 81 S.W.3d at 122.

We initially observe that Appellants' first point relied on takes issue with the trial court's entry of judgment in favor of Respondent because Appellants apparently contend that all of the individual condominium unit owners were "required to be joined in the lawsuit and served with the statutory 10 day notice ..." and Respondent "failed ... to give notice ... and then later voluntarily dismiss[ed] as to individual [condominium] unit owners. ..."

We note that Appellants' motion for summary judgment, which was brought together with the individual condominium unit owners as "Special Defendants," expressly set out that "the real estate on which the improvement (retaining wall) is located is owned solely by [Parkview] ... and not by the individual [condominium] unit owners. ..."⁵ On the same date, Appellants and the individual condominium unit owners also filed an alternative motion for summary judgment in which they stated that "in the event [the motion for summary judgment] is overruled and/or it is found that the individual unit condominium owners['] property is subject to [Respondent's] mechanic's lien, then in this event these Separate Defendants move the Court to enter Summary Judgment against [Respondent]. ..." Again, it is from the trial court's denial of this latter, alternative motion for summary judgment that Appellants now seek to appeal.

The record shows that on April 18, 2003, Respondent voluntarily dismissed its original petition for mechanic's lien as it related to the individual condominium unit owners only and, by...