Maran-Cooke, Inc. v. Purler Excavating, Inc.

• Decision Date: 29 June 1979
• Docket Number: MARAN-COOK,INC,No. 60741,60741
• Citation: 585 S.W.2d 38
• Parties: , Plaintiff-Appellant, v. PURLER EXCAVATING, INC., et al., Defendants-Respondents.
• Court: Missouri Supreme Court

Page 38

585 S.W.2d 38

MARAN-COOKE, INC., Plaintiff-Appellant, v. PURLER EXCAVATING, INC., et al., Defendants-Respondents.

No. 60741.

Supreme Court of Missouri, En Banc.

June 29, 1979.

Rehearing Denied Sept. 11, 1979.

Edward C. Ahlheim, Niedner, Moerschel, Ahlheim & Bodeaux, St. Charles, for plaintiff-appellant.

Edwin Rader, Clayton, for defendants-respondents.

RENDLEN, Judge.

Appeal from summary judgment denying the claim of Maran-Cooke, Inc., in its suit to enforce a statutory lien against the real property of Rountree Development Corporation for professional engineering services rendered Rountree. We affirm.

On November 5, 1970, Maran-Cooke contracted with Rountree Development Corporation to perform engineering services for the design and construction of Rountree's real estate development in St. Charles County. Though all work under its contract was performed by Maran-Cooke through licensed engineers, Maran-Cooke itself had not obtained the certificate of authority required by § 327.401.2. ¹ Rountree paid Maran-Cooke more than $40,000 under the contract before the project faltered late in 1974. On October 30 of that year Maran-Cooke filed liens in the circuit court of St. Charles County totaling $33,391.62 plus interest for the unpaid engineering services performed to that date. On April 25, 1975, Maran-Cooke brought this equitable action to enforce its lien, naming as defendants Rountree Development Corporation, holders of various deeds of trust on the affected real estate and Purler Excavating, Inc., which had previously filed a mechanic's lien against the property. Maran-Cooke also filed on the same date a cross-bill in the pending action of Purler Excavating.

All named trustees and holders of deeds of trust ² moved for summary judgment against Maran-Cooke and the trial court sustained the motion. Following the trial court's order consolidating the actions and finalizing its summary judgment in favor of defendants, plaintiff appealed to the Eastern District of the Missouri Court of Appeals. In view of appellant's constitutional attack on the statute requiring professional engineering corporations to obtain an annual authorization to practice from the Missouri Board for Architects, Professional Engineers, and Land Surveyors, § 327.401.2, that court ruled exclusive jurisdiction lay in this Court and transferred the cause. Mo.Const., art. V, § 3. Our review of the record and briefs reveals that only a question of application rather than construction of the federal and state constitutions is involved and thus the cause properly falls within the jurisdiction of the Court of Appeals, Mo.Const., art. V, § 3 (as amended 1970), but in the interest of economizing judicial time we shall resolve the issues here.

Under the 1969 revisions of chapter 327, RSMo, not only must a professional engineer obtain a "certificate of registration" in order to practice his profession, § 327.191, but any corporation constituting the medium of practice for professional engineers must obtain a "certificate of authority" in order to offer engineering services. § 327.401.2. Chapter 327 implicitly distinguishes between the two types of certification by listing them separately in many places. See, e. g., Ss 327.441, .461. However, in other instances chapter 327 simply refers to a "registered professional engineer" in contexts indicating that phrase includes persons holding "certificates of registration" and also organizations holding "certificates of authority." See §§ 327.421, .451.1.

The right to a materialman's lien is purely a creation of statute and did not exist at common law. Goodner v. Mosker-Roe Abstract & Guaranty Co., 314 Mo. 151, 282 S.W. 698 (1926); Herbert & Brooner Constr. Co. v. Golden, 499 S.W.2d 541 (Mo.App.1973). The same may be said of the lien afforded professional engineers by S.S.S.B. 217, Laws 1971, p. 424 (codified at § 429.015.1, RSMo Supp.1975). The relevant portion of § 429.015.1 provides:

Every registered architect, registered professional engineer or registered land surveyor, who does any architectual, engineering or land surveying work upon or performs any architectural, engineering or land surveying service directly connected with the erection of repair of any building or other improvement upon land under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this chapter, shall have for his architectural, engineering or land surveying work or service so done or performed, a lien upon the building or other improvements and upon the land belonging to the owner or proprietor on which the building or improvements are situated, to the extent of one acre.

The statute quite clearly requires that architects, professional engineers, or land surveyors who wish to claim its benefits be "registered."

It is implausible to suggest the legislature used the phrase "registered professional engineer" in § 429.015.1 as restricting the right to pursue a lien only to natural persons or, on the other hand, as limiting the liens only to registered engineers but not so limiting corporations through which they may practice. Stated otherwise we believe the legislature intended to extend the lien right only to Registered engineers and also to Registered corporations. "The law favors a construction of a statute which avoids unjust or unreasonable results." Maryland Casualty Co. v. General Electric Co., 418 S.W.2d 115, 118 (Mo. banc 1967). What has been said about mechanics' liens applies as well to these statutory liens: "(O)ur mechanic's lien law is remedial in nature . . . . (I)ts purpose is to give security to mechanics and materialmen for labor and materials furnished in improving the owner's property, . . . and . . . the law should be construed as favorable to those persons as its terms will permit." R. L. Sweet Lumber Co. v. E. L. Lane, Inc., 513 S.W.2d 365, 371 (Mo. banc 1974), quoting Kinnear Mfg. Co. v. Myers, 452 S.W.2d 599, 602 (Mo.App.1970) (citations omitted). Professional corporations could hardly be the advantageous mode...