Lake Ozark Const. Indust. v. Osage Land Co.

• Decision Date: 30 August 2005
• Docket Number: No. WD 63528.,WD 63528.
• Court: Missouri Supreme Court
• Parties: LAKE OZARK CONSTRUCTION INDUSTRIES, INC., et al., Appellants, v. OSAGE LAND COMPANY, L.L.C., et al., Defendants, Golf Trust of America, L.P., Respondent.

168 S.W.3d 471

LAKE OZARK CONSTRUCTION INDUSTRIES, INC., et al., Appellants, v. OSAGE LAND COMPANY, L.L.C., et al., Defendants, Golf Trust of America, L.P., Respondent.

No. WD 63528.

Missouri Court of Appeals, Western District.

April 5, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.

As Modified May 31, 2005.

Application for Transfer Denied August 30, 2005.

Reid F. Holbrook, Overland Park, KS, for appellants.

David James Kornelis, Kansas City, MO, for respondents.

Before EDWIN H. SMITH, C.J., and ELLIS and HOWARD, JJ.

EDWIN H. SMITH, Chief Judge.

Lake Ozark Construction Industries, Inc. (LOCI), and its parent company, Everett Holding Company, appeal from the judgment of the Circuit Court of Miller County granting the respondent, Golf Trust of America, L.P. (Golf Trust), summary judgment on Counts IV and V of the appellants' six-count, second amended petition and the dismissal of those counts with respect to the remaining named defendants. The lawsuit arose out of several contracts entered into between LOCI and M & M Contractors, Inc., (M & M), pursuant to which, LOCI, as a subcontractor, agreed with M & M, the general contractor, to perform and supply the necessary labor and materials for work on the Osage National Golf Club project (the Project), located in Miller County, Missouri. The Project consisted of developing land into a golf course and club (club property), and the surrounding property into private residences (residential property). In Count IV, the appellants sought to enforce a mechanic's lien, in accordance with Chapter 429,¹ on both club and residential property, for work it alleged was performed, but for which it was not paid, in the total amount of $1,427,302.47. In Count V, the appellants sought a declaration of the court that their mechanic's lien was superior to the interests of other creditors named as defendants.

The appellants raise two points on appeal. In both points, they claim that the trial court erred in granting summary judgment to Golf Trust on Counts IV and V of the appellants' second amended petition and dismissing those counts as to the remaining named defendants. Because the summary judgment for Golf Trust on Count V was based on the summary judgment for Golf Trust on Count IV and the dismissal of Counts IV and V as to the remaining defendants was also based thereon, the appeal of the summary judgment for Golf Trust on both counts and the appeal of the dismissals of both counts as to the remaining defendants effectively turn on the same issue. In that regard, the appellants claim, inter alia, in Point I, that the trial court erred in granting summary judgment to Golf Trust on Count IV, in which the appellants' sought to enforce their mechanic's lien as to the subject club and residential Project lots, because, in granting summary judgment on the basis that the property description of the required lien statement was deficient, the court misapplied §§ 429.040 and 429.080, in that the inclusion of non-contiguous lots in the description did not invalidate the lien as to the contiguous lots described in the notice. In Point II, they essentially make the same claim they make in Point I, except they claim that should we find against them in Point I, the release of their lien as to the non-contiguous lots cured any deficiency found in the statement for including therein a description of the non-contiguous lots.

We reverse and remand.

Facts

On May 16, 1996, and June 1, 1997, LOCI entered into several contracts with M & M, in which LOCI agreed to provide the necessary labor and materials for work for infrastructure, grading, excavation, and improvements to the Project, including work on both club and residential properties. LOCI finished the agreed-upon work on the Project on November 30, 1998, but was not paid. On May 27, 1999, the appellants filed, in the Circuit Court of Miller County, a mechanic's lien statement seeking to impose a lien on various club and residential Project lots for their work. The statement was filed pursuant to § 429.040, which allows for a single lien to be imposed on multiple lots, provided they are contiguous.

On September 27, 1999, the appellants filed a six-count petition in the Circuit Court of Miller County. In Count I, they sought damages against M & M for breach of contract; in Count II, they sought payment on account from M & M; in Count III, they sought damages from M & M on a theory of quantum meruit; in Count IV, they sought to enforce their blanket mechanic's lien against the owners of the subject Project club and residential lots; in Count V, they sought a declaration of the trial court that their mechanic's lien was superior to the interests of other creditors named as defendants; and in Count VI, they sought payment under a promissory note, secured by a deed of trust, executed by Osage Land Company, L.L.C.

On December 30, 1999, the appellants filed a first amended petition, adding several named defendants. On March 27, 2000, they filed a motion for partial summary judgment on Counts I-VI as to certain of the named defendants. On June 25, 2001, the trial court sustained their motion as to Count VI against Osage Land, ordering it to pay the balance due under the note, $1,304,422.52, but overruled the motion in all other respects. On July 18, 2001, the appellants filed a second amended petition, which added more named defendants. The record on appeal reflects that M & M never filed an answer to the appellants' second amended petition. On September 27, 2001, counsel for M & M filed a motion to withdraw, which was granted by the trial court on December 4, 2001.

On February 20, 2002, Golf Trust filed a motion for partial summary judgment on Counts IV and Count V of the appellants' second amended petition, alleging that the lien filed by the appellants was invalid because it sought to impose a blanket lien on lots which were not contiguous, in violation of § 429.040.² On March 20, 2002, the appellants filed a partial release, releasing any lien claim as to the non-contiguous lots described in the appellants' lien statement and reducing their lien demand, accordingly, by $19,577 for the work done on the non-contiguous lots that were released.

Golf Trust's motion for partial summary judgment was heard and sustained by the trial court on March 25, 2002. This ruling was memorialized in an order, dated April 20, 2002, which stated, inter alia: "IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Defendant Golf Trust of America, L.P.'s Motion for Summary Judgment on Counts IV and V of Second Amended Petition (Single Lien Claimed On Multiple Tracts That Are Not Contiguous) is granted." The court's order was not designated, under Rule 74.01(b),³ for early appeal, and therefore, was not a final judgment subject to appeal.

On March 29, 2002, the appellants filed a motion for default judgment against M & M, which, as noted supra, had not filed a response to the appellants' second amended petition. A default judgment was granted against M & M on April 1, 2002. As to Count I, the trial court awarded the appellants $1,780,218.83, plus attorney's fees of $285,686.38, travel and mileage expenses of $45,220.00, and court costs. In addition, the trial court dismissed Counts II and III, without prejudice, at the request of the appellants.

On November 19, 2003, the trial court issued what it denominated a "Final Judgment," entering summary judgment in favor of Golf Trust on Counts IV and V of the second amended petition and dismissing those same counts as to the remaining defendants. It is this judgment from which the appellants appeal.

This appeal followed.

Standard of Review

In reviewing the grant of summary judgment:

[o]ur review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.

ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 380. Furthermore, when considering appeals from summary judgments, we will:

review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.

Id. at 376.

I.

In Point I, the appellants claim, as to the dispositive issue presented, that the trial court erred in granting summary judgment to Golf Trust on Count IV, which sought enforcement of the appellants' mechanic's lien, because, in granting summary judgment on the basis that the property description of the required lien statement was deficient, the court misapplied §§ 429.040 and 429.080, in that the inclusion of non-contiguous lots in the description did not invalidate the lien as to the contiguous lots described in the notice. We agree.

To make a prima facie case for summary judgment, under Rule 74.04, the movant must allege facts, which are supported by specific references to the pleadings, discovery, exhibits or affidavits, demonstrating the lack of a genuine issue as to such facts and which establish a right to judgment as a matter of law. Rule 74.04(c); Bost v. Clark, 116 S.W.3d 667, 674 (Mo.App.2003). If the movant is a defending party, as is the case here, the movant can make a prima facie case for summary judgment by showing either: (...