Lee Deering Elec. v. Pernikoff Const. Co.

• Decision Date: 29 January 2008
• Docket Number: No. ED 89834.,ED 89834.
• Parties: LEE DEERING ELECTRIC COMPANY, and Bell Electric Contractors, Inc., Plaintiff, and Ammonia Master Refrigeration, Ltd., Appellant, v. PERNIKOFF CONSTRUCTION COMPANY, Foodbrand, LLC, JFK Construction & Design, Vogel Sheet Metal & Heating, Overberg Decorating Center, Inc., GST, Inc. d/b/a Arena Systems, and Envirothermics, Inc., Defendants, and St. Louis Mills, L.P., Respondent.
• Court: Missouri Court of Appeals

247 S.W.3d 577

LEE DEERING ELECTRIC COMPANY, and Bell Electric Contractors, Inc., Plaintiff, and Ammonia Master Refrigeration, Ltd., Appellant, v. PERNIKOFF CONSTRUCTION COMPANY, Foodbrand, LLC, JFK Construction & Design, Vogel Sheet Metal & Heating, Overberg Decorating Center, Inc., GST, Inc. d/b/a Arena Systems, and Envirothermics, Inc., Defendants, and St. Louis Mills, L.P., Respondent.

No. ED 89834.

Missouri Court of Appeals, Eastern District, Division Four.

January 29, 2008.

Rehearing Denied March 10, 2008.

Brian E. McGovern, Trenton K. Bond, Chesterfield, MO, for appellant.

Joshua M. Schindler, Clayton, MO, Richard A. Stockenberg, David L. Smith, St. Louis, MO, for plaintiff.

Willard D. McCarter, Joseph C. Blanner, Matthew J. Reh, St. Louis, MO, for respondent.

OPINION

GEORGE W. DRAPER III, Judge.

Ammonia Master Refrigeration Ltd. (hereinafter, "Ammonia Master") appeals from the trial court's judgment granting St. Louis Mills Limited Partnership's (hereinafter, "the Mills") motion for judgment on the pleadings with respect to Ammonia Master's four count petition in intervention. Ammonia Master raises five points on appeal, arguing the trial court erred in entering judgment on the pleadings in that: (1) res judicata did not bar Ammonia Master from asserting its claims in its petition for intervention; (2) the original petition seeking to enforce its mechanic's lien was filed timely; (3) the general contractor was not a necessary and indispensable party; (4) the mechanic's lien created a just and true account; and (5) the petition properly pleaded a count of unjust enrichment against the Mills. We affirm.¹

The facts are undisputed. This matter arises out of the construction of the St. Louis Mills Mall. The Mills retained Walton Construction Co. (hereinafter, "Walton") as its general contractor to construct an ice rink at this location. Walton then hired a subcontractor, G.S.T., Inc. d/b/a Arena Systems (hereinafter, "Arena Systems"), to construct the ice rink. Arena Systems sought the services of Envirothermics, Inc. (hereinafter, "Envirothermics") to provide specialized chillers to use in the ice rink. Envirothermics then entered into a contract with Ammonia Master, who would construct and deliver the chillers that were needed. On December 17, 2003, Ammonia Master delivered a prefabricated artificial ice plant chiller to the Mills and charged Envirothermics $150,000 for the chiller. Envirothermics made some form of payment, yet a balance of $107,187.28 remained on account.

On February 4, 2004, Lee Deering Electric Co., Inc. (hereinafter, "Lee Deering"), another contractor who performed work at the St. Louis Mills Mall, filed its petition to foreclose on a mechanic's lien against Pernikoff Construction Co., et al. (hereinafter, "the Lee Deering case"). Subsequently, Ammonia Master filed its mechanic's lien statement on April 23, 2004. Thereafter on October 22, 2004, Ammonia Master filed a separate four count petition to foreclose on its mechanic's lien against Envirothermics, Arena Systems, and the Mills. Ammonia Master did not join the Lee Deering case at this time.

Arena Systems and the Mills filed motions to dismiss Ammonia Master's petition. While the motions to dismiss were pending, Ammonia Master sought to intervene in the Lee Deering case. On March 1, 2005, the trial judge presiding over the Lee Deering case granted this motion, ruling Ammonia Master could intervene as a matter of right. On March 2, 2005, the trial judge presiding over Ammonia Master's original petition granted the motions to dismiss, stating, "The Court finds [Ammonia Master] has filed a Motion to Consolidate, or in the alternative, Motion to Intervene in [the Lee Deering case] ... and that on March 1, 2005, [Ammonia Master's] motion to intervene was granted.... Therefore, Defendants' Motions to dismiss are granted."

Approximately two months later, Ammonia Master filed its petition in intervention in the Lee Deering case against Envirothermics, Arena Systems, and the Mills making the same allegations as in its original petition. Counts I, II, and III were directed at Envirothermics, while Count IV alleged unjust enrichment against the Mills. The Mills subsequently filed a motion for judgment on the pleadings, which was granted. After all remaining claims and parties were dismissed without prejudice, this case was final for purposes of appeal. Ammonia Master appeals.

When reviewing the trial court's grant of the Mills' motion for judgment on the pleadings, we review Ammonia Master's petition to determine whether the facts pleaded therein are insufficient as a matter of law. Craig v. Missouri Dep't of Health, 80 S.W.3d 457, 459 (Mo. banc. 2002). "The party moving for judgment on the pleadings admits, for purposes of the motion, the truth of all well-pleaded facts in the opposing party's pleadings." Lone Star Industries, Inc. v. Howell Trucking, Inc., 199 S.W.3d 900, 906 (Mo. App. E.D.2006). We will not disturb the granting of the motion if, from the face of the pleadings, the moving party is entitled to a judgment as a matter of law. Becker v. St. Charles Boat & Motor Inc., 131 S.W.3d 868, 870 (Mo.App. E.D.2004).

We begin our review with Ammonia Master's third point, "as the trial court's jurisdiction over the defendant must be established before the plaintiffs' compliance with the remainder of the mechanic's lien statute is properly before this [C]ourt." Garavaglia v. J.L. Mason of Missouri, Inc., 733 S.W.2d 53, 54-55 (Mo. App. E.D.1987). Ammonia Master claims the trial court erred in entering judgment on the pleadings in favor of the Mills, finding it failed to join necessary and indispensable parties. Ammonia Master argues as a lower tier materials supplier, it was not required to join Walton, the general contractor. With respect to Envirothermics, Ammonia Master claims it is "a defunct Canadian corporation that could not be served" with the petition in intervention.

Section 429.190 RSMo (2000)² states that in all mechanic's lien actions "the parties to the contract shall, and all other persons interested in the matter in controversy or in the property charged may be made parties...." (Emphasis added). Thus, "[a]ccording to the statute, parties to the contract are necessary parties who must be joined in a proceeding to adjudicate a lien." J.H. Berra Paving Co., Inc. v. City of Eureka, 50 S.W.3d 358, 360 (Mo.App. E.D.2001).

We begin with Ammonia Master's argument that it did not have to join Walton, the general contractor. If a general contractor is not a party to the contract at issue between the subcontractor and the material supplier, then the general contractor is not a necessary party to a mechanic's lien action. Iowa Steel Wire Co., Inc. v. Sheffield Steel Corp., 227 S.W.3d 549, 557 (Mo.App. W.D.2007). The Mills concedes Walton was not a necessary party to the mechanic's lien action given its role as the general contractor and that it was not a party to the contract with Ammonia Master. Therefore, Ammonia Master was not required pursuant to Section 429.190 to join Walton.

With respect to Envirothermics, the Mills asserts that Envirothermics is a necessary party that had to be joined because it was a party to the contract. It is undisputed that Ammonia Master contracted with Envirothermics to supply the ice chiller. As a result, Section 429.190 mandates Envirothermics, as a party to the contract, must be joined in any proceeding to adjudicate a mechanics lien.

In addition to Section 429.190's requirement that the parties to the contract shall be made parties to the mechanic's lien action, Ammonia Master must also abide by the mandates of Section 429.170. This section provides that a petition to foreclose on a mechanic's lien shall be commenced within six months after filing the lien. "The action is commenced within the statute by the filing of a petition and the issuance of the summons." City-Wide Asphalt Co., Inc. v. Industrial Paving, Inc., 838 S.W.2d 480, 482 (Mo.App. W.D.1992).

Assuming arguendo that Ammonia Master timely filed its petition in intervention, the petition stated Envirothermics is a Canadian corporation, listed an address, and stated it "may be served with process at that address." The record is devoid of any evidence demonstrating Envirothermics was served with process. "[T]he joining of necessary parties is mandatory and the six-month limitation period is not tolled, rather, it continues to run if when an action is commenced, proper service is not secured within the six-month limitation." Central Wholesale Distrib., A Div. of Topeka Lumber, Inc., v. Day, 672 S.W.2d 88, 95 (Mo.App. W.D.1984). Thus, "jurisdiction over a necessary party obtained after the lapse of the six-month limitation period bars recovery." Id.

Nine months after filing the petition in intervention and in response to the Mills' motion for judgment on the pleadings, Ammonia Master did not dispute Envirothermics' status as a necessary party. Rather, Ammonia Master alleged, "Envirothermics is a defective, out-of-business bankrupt Canadian corporation. Envirothermics' failure to pay Ammonia Master ... is the cause of the Mechanic's Lien and this litigation. As Envirothermics is no longer a viable entity, they are unable to be served or joined in this action." Ammonia Master argues our standard of review requires us to accept this allegation as true and infer it unsuccessfully attempted to serve Envirothermics. We disagree.

As noted above, nothing in the record supports Ammonia Masters allegation that it attempted to commence the action by...