Messina Bros. Const. Co. v. Williford, WD
| Decision Date | 26 January 1982 |
| Docket Number | No. WD,WD |
| Citation | 630 S.W.2d 201 |
| Parties | MESSINA BROTHERS CONSTRUCTION COMPANY, et al., Plaintiffs-Respondents, v. Price B. WILLIFORD, et al., Defendants-Appellants. 32210. |
| Court | Missouri Court of Appeals |
Robert J. Harrop & Don F. Dagenais of Gage & Tucker, Kansas City, for appellants, Williford, Sleyster and Mart Bldg. Co.
Roger J. Barbieri and Edward Heller, Kansas City, for respondent, Lexington Plumbing & Heating Co. Inc.
June Clark and David A. Welte, Kansas City, for respondent, Messina Brothers Const. Co.
Ronald E. Partee, Kansas City, for respondent Mor-Ford DryWall, Inc.
Patrick E. White, Kansas City, for respondent, R. F. Fisher Elec. Co., Inc.
Before MANFORD, P. J., and DIXON and NUGENT, JJ.
This is an equitable mechanic's lien action. The trial court entered judgment in favor of lien claimants. Affirmed in part and reversed in part.
Review of this court tried matter is within Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The rule that judgments of the trial court are to be affirmed unless there is no substantial evidence to support them, unless they are against the weight of the evidence or unless they erroneously declare or apply the law is equally applicable to actions upon mechanic's liens. S & R Builders & Suppliers, Inc. v. Marler, 610 S.W.2d 690, 692 (Mo.App.1980).
In summary, appellants present three points which allege the trial court erred because (1) it misapplied or misinterpreted the law of agency as applicable to the mechanic's lien statute; (2) the court's findings of agency are insufficient to support its conclusions of agency and (3) the evidence is insufficient to support a finding of agency. There being a challenge to the sufficiency of the evidence, it is detailed along with the identity and relationship of the parties.
In 1955, appellants Williford 1 and Sleyster, along with two others, purchased the real property to which the trial court attached the liens. In 1960-61, the owners leased the property to Mart Building Co. (Mart), a company owned by Williford, Sleyster, and others for a term of 35 years. Mart constructed a 132,000 square foot building on the property and sublet it to Homeowners Mart for a period of 15 years. The Homeowners' lease was assigned to a series of successive tenants, the last of which was Community Discount, a division of Tractor Supply, Inc. (T.S.I.). During these successive lease assignments, the building was used as a discount store. The final tenant (T.S.I.) ceased operations and vacated the premises in mid-1973. The lease obligation, however, continued and T.S.I. continued to pay $8,000.00 per month. In the early 1970's, Williford and Sleyster became sole owners of the property and sole shareholders of Mart. The property, being vacant for a two-year (1973-75) period, deteriorated and fell into disrepair. These conditions included several broken plate glass windows, a malfunctioning air-condition compressor, and a broken and leaky boiler, plumbing and sprinkler systems.
Sometime prior to August 1, 1975, representatives of American Mini Malls, Inc. (A.M.I.) contacted Williford and Sleyster concerning the subleasing of the property from Mart. A.M.I. was referred to T.S.I. by Williford because of the lease obligation of T.S.I. to Mart. The record does not disclose the details, but A.M.I. and T.S.I. obviously completed negotiations whereby T.S.I. agreed to pay Mart the sum of $200,000.00 for immediate termination of the lease.
On August 1, 1975, Williford, on behalf of Mart, entered into a lease with A.M.I. The initial terms of the lease were for 15 months until October 31, 1976, and provided A.M.I. ten successive one-year options. The lease allowed use of the premises "for any lawful purpose" and permitted the subtenant (A.M.I.) to make improvements at its "sole cost and expense." Rental was $8,000.00 per month. The lease also acknowledged that A.M.I. would expend substantial sums to improve the premises for its use and provided "accordingly no rental payments (other than the payments hereinafter expressly provided) shall be due from the lessee from the commencement of the term to December 31, 1976." 2 The lease further provided that Mart would advance the sum of $20,000 to A.M.I. to further defray the cost of lessee's improvements. This "advancement" was the result of A.M.I.'s attempts to borrow $20,000 from a local bank, and the loan was approved only with Williford's co-signature. A.M.I. defaulted on the bank note and Williford paid the balance of $16,000.00. Williford testified that the rental abatement plus the $20,000 "advancement" were designed to compensate A.M.I. for undertaking the obligation of T.S.I. to restore the premises and to provide A.M.I. a benefit of the lump sum payment ($200,000.00) by T.S.I. in discharge of its lease obligation. 3
At the time of possession, A.M.I. intended to open a "flea market" operation on the premises. In this operation, merchandise would be sold by individuals from separate booths within the building. These booths or cubicles would be rented by A.M.I. to individual subtenants who in turn would operate their own retail businesses. The subtenants would lease the bare walls and would bear responsibility for the construction of shop fronts and other features. A.M.I. bore responsibility for erecting the partitions constituting the booths or cubicles.
In furtherance of its purpose, A.M.I. contracted with Messina Bros. Construction Co. (Messina) for the necessary work. This work initially was limited to the building of an indoor miniature golf course toward which Messina received payment of $40,000.00. At the insistence of A.M.I., Messina was hired to install a sidewalk cafe, pizza stand, juice stands and arcades, employee lockers, and a "host of minor projects." In order to complete the work, Messina engaged several subcontractors. At trial, Messina testified to the quality of the work by its subcontractors, the reasonableness of their charges and admitted its indebtedness to them.
Messina's total charges were $135,899.57, against which A.M.I. paid $75,000.00. Messina submitted a claim for a balance of $65,324.59 and after A.M.I. objected that this sum also included work done by Messina directly for some of the tenants of A.M.I., Messina submitted a revised balance of $60,899.57. When no payments were made by A.M.I., Messina and its subcontractors filed their mechanic's liens. These claimed liens were: Messina-$60,899.57, Mor-Ford Drywall Co. (Mor-Ford)-$6,083.61, North Kansas City Painting Co. (N.K.C.)-$9,663.68, E. J. Cody Co. (Cody)-$19,974.00 and Lexington Plumbing & Heating Co. (Lexington)-$20,593.65.
On March 25, 1976, Messina commenced this action against A.M.I., Williford, Sleyster, Mart and all of its subcontractors. Other parties were named as owners and parties defendant with the owners Williford and Sleyster. The record reveals they were not proper parties and the original judgment and this appeal do not include them. In addition, Royal Asphalt Co. (Royal) became a party upon the filing of its answer and cross-claim during trial by stipulation. Forbes Construction Co. (Forbes) was named as a party by Royal. Forbes defaulted. R. F. Fisher Electric Co. (Fisher) filed its motion to intervene as a party plaintiff and sought enforcement of its lien claims against Messina, Williford and Sleyster. A.M.I. had ceased business. Messina sought enforcement of its claims as liens against the real property. The various subcontractors filed counterclaims against Messina and filed cross-claims against Williford, Sleyster, Mart and A.M.I. In their pleadings, the subcontractors sought enforcement of their claims as liens on the real property. Fisher sought to have its claim enforced as a lien on the real property.
No rent was ever paid by A.M.I., nor did A.M.I. ever exercise its renewal option under the lease. Following the termination of occupancy of the building by A.M.I., the building remained vacant for approximately two years. At this later date, the building was leased to its current tenant, the John F. Lawhon Furniture Co. In order to effect the lease with Lawhon, removal of the miniature golf course, partitions, arcades, food facilities and other additions made by A.M.I. had to be completed. These items were carried from the property to a dump location for disposal. As a result, none of respondents' work remained on the premises. 4
Following trial of the issues, the court entered judgment in favor of Messina and against A.M.I. in the sum of $60,899.57, plus interest in the sum of $17,049.00 and ordered said judgment as a lien against the real property. In addition, the court entered judgment regarding the remaining parties as follows:
(1) Lexington against Messina in the sum of $20,593.65, plus interest in the sum of $5,766.21, said judgment to be a lien against the real property. Provided the judgment for Lexington is contained within the judgment and the lien awarded Messina, and if the judgment and lien of Lexington is satisfied prior to satisfaction of the Messina judgment, the judgment in favor of Messina will be reduced by the amount of the judgment in favor of Lexington. At such time as the mechanic's lien of Messina is satisfied in full, the lien of Lexington shall be automatically released.
(2) Cody against Messina in the sum of $19,974.00, plus interest in the sum of $5,592.72, said judgment to be a lien against the real property. The same proviso as in (1) above made applicable to Cody.
(3) N.K.C. against Messina in the sum of $9,663.68, plus interest in the sum of $2,705.83, said judgment to be a lien against the real property. The same proviso as in (1) above made applicable to N.K.C.
(4) Mor-Ford against A.M.I. in the sum of $15,466.97, plus interest in the sum of $4,330.75, said judgment...
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