Landvatter Ready Mix, Inc. v. Buckey

• Decision Date: 16 December 1997
• Docket Number: No. 71233,71233
• Citation: 963 S.W.2d 298
• Parties: LANDVATTER READY MIX, INC., Plaintiff/Respondent, v. Karen BUCKEY and Trout Development, Inc., et al., Defendants/Appellants.
• Court: Missouri Court of Appeals

Page 298

963 S.W.2d 298

LANDVATTER READY MIX, INC., Plaintiff/Respondent, v. Karen BUCKEY and Trout Development, Inc., et al Defendants/Appellants.

No. 71233.

Missouri Court of Appeals,

Eastern District,

Division Two.

Dec. 16, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 11, 1998.

Application to Transfer Denied

April 21, 1998.

Robert J. Guinness, St. Charles, for Defendants/Appellants.

Michael P. Steeno, St. Louis, for Plaintiff/Respondent.

RHODES RUSSELL, Judge.

Landowners appeal from the judgment of the trial court granting Landvatter Ready Mix, Inc. ("supplier"), a mechanic's lien on landowners' real estate. Landowners argue that the trial court's entry of the lien was erroneous in that supplier had executed a lien waiver expressly waiving "any and all lien" on the subject real estate. We affirm in that we find that the lien waiver did not extend to concrete delivered after the waiver's execution.

The facts are undisputed. Landowners ¹ were renovating their two townhouses in St. Louis. R. Green & Sons Construction, Inc., ("subcontractor") hired supplier to provide concrete for the renovation. The landowners' funds for the project were distributed by Commonwealth Land Title Insurance Company ("escrow agent").

Supplier made its first concrete delivery to the property on February 23, 1994, billing subcontractor $1,194.10 for this material. On February 28, 1994, supplier prepared, executed, and delivered to escrow agent a lien waiver. Supplier was paid the $1,194.10 due for that concrete delivery. On March 2 and 10, 1994, supplier made two additional deliveries to the property for which it billed subcontractor $4,399.25 by invoice dated March 12, 1994. On March 16 and 17, 1994, supplier delivered materials to the property and billed subcontractor $2,106.80 by invoice dated March 31, 1994. Supplier did not execute any subsequent lien waivers. Although landowners fully paid their general contractor, supplier never received payment for any of the concrete delivered in March totaling $6,506.05. On September 13, 1994, supplier filed a statement for a mechanic's lien for that amount along with a petition to enforce the lien.

After a bench trial, the court entered a default personal judgment for $6,506.05 for supplier and against subcontractor, as well as a personal judgment for supplier and against landowners in the same amount. Although supplier requested the entry of a mechanic's lien, no lien was granted by the trial court.

Landowners subsequently filed a motion to amend the judgment. They asked the court to strike the judgment against them and enter judgment in favor of them and against the supplier on its mechanic's lien, or, in the alternative, to strike the personal judgment against landowners and enter a judgment limited to enforcement of a mechanic's lien on the property. The trial court entered an amended judgment and order maintaining the personal judgment against subcontractor who was in default, vacating the personal judgment against the landowners, and entering a new judgment granting supplier a mechanic's lien on landowners' property in the amount of $6,506.05. Landowners appeal.

Our standard for review in construing the supplier's written lien waiver is de novo after independently considering the evidence and reaching our own conclusions. Anchor Centre Partners v. Mercantile Bank, 803 S.W.2d 23, 32 (Mo. banc 1991); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The construction of written documents is ordinarily a question of law, not fact. Anchor Centre Partners, 803 S.W.2d at 32. The trial court's construction of a document is a legal conclusion, and is not binding on appeal. Id.

Landowners' first point alleges that the trial court's entry of the mechanic's lien was erroneous because it failed to enforce supplier's lien waiver according to its terms. We disagree.

The lien waiver prepared and executed by supplier on February 28, 1994, stated:

... We the undersigned for and in consideration of the sum of Eleven Hundred Ninety Four & 10/100, and other good and valuable considerations, the receipt of which is hereby acknowledged, we do hereby waive and release any and all lien, and claim or right to lien on said above described building and premises under the Statutes of the State of Missouri relating to Mechanic's Liens, on account of labor and materials, or both, furnished by the undersigned to or on account of the said R. Green & Sons for said building and premises.

Landowners contend that this waiver unambiguously waived all right to a lien on the job and, therefore, supplier waived its rights to a lien on the property for the March deliveries. We do not agree that the lien waiver extended to future deliveries.

In Zeller v. Janssen, 569 S.W.2d 5, 6 (Mo.App.1978), we held that the lienholder's waiver of a mechanic's lien did not extend beyond the time for which consideration was given for services performed and did not apply to subsequent work for which there was no consideration. Landowners argue that Zeller is distinguishable because the lien waiver therein specified that it was waiving any and all claim or right to lien on account of labor or materials "furnished by the undersigned up to this date." ² The opinion in Zeller, however, did not set out or refer to the language used in the lien waiver as a basis for its holding. Although inclusion of such language would make the waiver clear, and perhaps represents a better practice, we do not believe that the omission of the language "up to this date" in the lien waiver extends the lien waiver to future deliveries of materials which were not included in the payment.

The primary rule in the interpretation of written documents is to ascertain the intent of the parties and to give effect to that intent. CB Commercial Real Estate Group, Inc. v. Equity Partnerships Corp., 917 S.W.2d 641, 646 (Mo.App.1996); see also 53 AM.JUR.2D MECHANICS' LIENS section 294, at 828-30 (1970); Metropolitan Federal Bank v. A.J. Allen, 477 N.W.2d 668 (Iowa 1991) (interpreting mechanics' lien waiver documents); Portland Elec. & Plumbing Co. v. Simpson, 59 Or.App. 486, 651 P.2d 172 (1982) aff'd, 61 Or.App. 266, 656 P.2d 394 (1983) (scope and effect of lien waiver is to be determined from language of document, sequence of events, and surrounding circumstances).

It has long been the rule that a mechanic's lien claim may be waived, but the intention to do so must be clearly manifested. Herbert & Brooner Const. Co. v. Golden, 499 S.W.2d 541, 545 (Mo.App.1973); Lee v. Hassett, 39 Mo.App. 67, 71 (1889). In addition, a party may waive in advance the benefits of the mechanic's lien law. Keller v. Home Life Ins. Co., 95 Mo.App. 627, 69 S.W. 612, 615 (1902). However, the intention to waive any future claim, like the intention to waive a present claim, must be clearly manifested. Lee, 39 Mo.App. at 71. Intention must be determined from the surrounding facts and circumstances. Langdon v. Kleeman, 278 Mo. 236, 211 S.W. 877, 878 (1919).

The language of the lien waiver herein does not clearly manifest an intent to waive mechanic's lien rights accruing subsequent to the date of the waiver. The waiver merely releases "any and all lien ... on account of labor and materials, or both, furnished by the undersigned ... for said building and premises." The lien employs the past tense verb "furnished," while it includes no prospective language at all. Had supplier intended to waive subsequent lien rights, the waiver could easily have been modified to waive rights for materials "to be furnished" or for materials supplied "hereafter." See Metropolitan Federal Bank v. A.J. Allen, 477 N.W.2d 668, 674 (Iowa 1991) (holding waiver of "any and all lien ... on account of any labor, materials and services rendered or furnished" was not intended to waive rights accruing subsequent to the execution of the waiver).

In the facts and circumstances of this case we find additional support that supplier had no intention, when it executed the lien waiver in February in connection with materials delivered in February, to waive lien rights as to future deliveries of materials for which billing and payment had not yet occurred. Supplier's president testified that the waiver corresponded to the February invoice for the February 23, 1994 delivery of concrete. He further testified that he understood a waiver was only final if he marked it "final." Supplier's president did not testify that he intended to waive anything other than the right to claim a lien for the amount actually paid to supplier. The waiver was executed in consideration of the payment of the exact amount billed and due on past deliveries. There was no evidence of any conversation, inducement, or promise to show the parties contemplated waiver on future deliveries of materials or had any reason to waive lien rights on future deliveries. Further, there was no evidence of payment or consideration apart from payment to support such a waiver.

Instructive on this issue is Lee v. Hassett, 39 Mo.App. at 71. In that case the contractors, who had a plastering contract with the owner of four houses, signed an instrument waiving "any and all liens which they now or may hereafter have ... for work or labor done or materials or fixtures furnished by them" on the houses. The contractors intended to waive future liens to allow the owner to secure an advance to pay off an old encumbrance and obtain a new mortgage. No work was done under the original contract, and at a later time the contractors entered into a new contract with owner for plastering the same houses. Contractors completed part of the work, but were not timely paid so they abandoned the project and filed a lien. In defense, the owner argued that the lien waiver was equivalent to a perpetual waiver of lien for all work and materials furnished, then or thereafter, by contractors on the four houses. This court held that the lien waiver must be read to be...