MIDWEST FLOOR CO. v. MICELI DEVELOPMENT CO.
| Decision Date | 23 March 2010 |
| Docket Number | No. ED 92918.,ED 92918. |
| Citation | 304 SW 3d 243 |
| Parties | MIDWEST FLOOR COMPANY, Plaintiff, and Kelpe Contracting, Inc., Respondent, v. MICELI DEVELOPMENT COMPANY, Miceli Holding Company, Wells Fargo Bank, Husch Trustee, Inc., and First National Bank of St. Louis, Defendants, and Richard W. Preckel and Gayle M. Preckel, Appellants. |
| Court | Missouri Court of Appeals |
Martin Blanchard, St. Louis, MO, for appellants.
Patrick Keefe, St. Louis, MO, for respondents.
Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A BAKER, J.
This case involves the enforcement of a mechanics' lien filed by a contractor, Kelpe Contracting, against the builder Miceli Development Company, Miceli Holding Company and Miceli Homes, Inc. (Miceli) and the property owners, Richard and Gayle Preckel. The trial court granted summary judgment in favor of Kelpe, ordering Miceli Development and Miceli Holding Company to pay $127,766.50 for work performed on the property. A lien for the same amount was also levied against the property owned by the Preckels.
The Preckels appeal the judgment, claiming that summary judgment should not have been issued because genuine issues of material fact exist. We find no error and affirm.
Frank Miceli is the president of defendants Miceli Development Company, Inc., Miceli Holding Company, and Miceli Homes, Inc1. Miceli Homes owned the property when, on May 3, 2006, Kelpe entered into an agreement with Miceli Development to stabilize a slope on the property. The proposal was for "slope reinforcement & retaining wall base," and the estimated cost totaled $116,650.00.
According to the deposition testimony of Thomas Kelpe, the owner of Kelpe Contracting, the retaining wall was necessary to build a rear-entry garage driveway which abutted a steep ravine. Kelpe planned to excavate until he reached stable material and then fill it back in with shot rock. Kelpe began the excavation, but was unable to locate stable ground, and the parties agreed to stop the project and consult an engineer. On June 13, 2006 Kelpe sent Invoice # 580 for $35,229.
The record contains a second proposal dated September 21, 2006. This proposal is for "storm piping and fill placement for retaining wall." The estimated total is for $45,894.00. The proposal contains Kelpe's signature, but not Miceli Development's signature by Frank Miceli.
On September 22, 2006, the Preckels purchased the property from Miceli Homes, Inc.
Thomas Kelpe testified that because they were unable to locate stable ground, a new plan was developed to install a 48 inch wide pipe through the ravine, which would form a strong base, and then fill the area to make the retaining wall base. From February 8, 2007 until March 16, 1007, Kelpe did no work on the property. Thomas Kelpe testified that the work in the beginning of 2007 was sporadic due to the bad weather. Kelpe submitted invoice # 1203 for $87,759.50, dated February 19, 2007. Kelpe testified that on March 16, 2007 his employee worked for eight hours finishing the riprap, setting the tops and the manhole top, and completing other finishing work. He sent invoice # 1246 for $4,788.00, dated March 19, 2007. Kelpe also testified that he paid all the subcontractors who worked on the project.
Kelpe filed a lien for $127, 776.50 on September 13, 2007, and then filed its claim for Breach of Contract and Enforcement of Mechanics' Lien. Kelpe moved for summary judgment.
Miceli submitted an affidavit of Frank Miceli (Frank) in its response to Kelpe's motion for summary judgment which stated two contracts governed the work that Kelpe performed on the property. According to Frank Miceli, the first contract governed the excavation in the spring 2006, and was completed by June 6, 2006. The second contract governed the installation of a pipe across the property and two other adjacent lots. He also claimed he was charged twice as much as the estimated bid. However, in its answer to interrogatories, Miceli agreed that the final price of the contract with Kelpe was $127,776.50, and that this amount did not exceed the reasonable value of services for the work, labor or materials. In the fragmented portions of deposition included in the record, Frank testified that Kelpe started to stabilize the slope, and then determined that it could not be done and suspended the job. According to Frank, the parties later came back and "restarted the job based on the approved plans." He agreed that the retaining wall base could not be constructed until the pipe was installed.
The trial court granted Kelpe's motion for summary judgment and certified it as final pursuant to Rule 74.01(b). This appeal follows.
Whether a motion for summary judgment should be granted is a question of law and our review is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is proper where the movant establishes the absence of any genuine issue of material fact and a legal right to judgment. Id. at 378. We will review the record in the light most favorable to the party against whom judgment has been entered. Id. at 376. Facts set forth by affidavit or otherwise in support are taken as true unless contradicted by the non-moving party's response. Id. We will affirm the trial court's judgment if it is sustainable on any theory. Citibrook II, L.L.C v. Morgan's Foods of Missouri, Inc., 239 S.W.3d 631 (Mo.App. E.D.2007).
In all three points on appeal, the Preckels claim the trial court erred in granting summary judgment because genuine issues of material fact exist. In their first point, they claim the statement of mechanics' lien did not set forth a just and true account of the work because it included non-lienable items, specifically work performed by subcontractors. In their second point, they assert that Kelpe's mechanics' lien was not timely filed because the last day of work on the property was February 8, 2007, not March 16, 2007. Finally, they allege two separate contracts governed the work performed on the property, and therefore, Kelpe was required to file two separate liens, the first of which is time barred.
The right to a mechanics' lien is not recognized at common law, but instead is created by statute. Fleming-Gilchrist Constr. Co. v. McGonigle, 338 Mo. 56, 89 S.W.2d 15, 18 (1935). See Sections 429.010 to 429.350 RSMo (Supp.2007). Section 429.010 RSMo, provides:
Any person who shall do or perform any work or labor upon land, rent any machinery or equipment, or use any rental machinery or equipment, or furnish any material . . . for any building, erection or improvements upon land, . . . under or by virtue of any contract with the owner or proprietor thereof, or his or her agent, trustee, contractor or subcontractor,. . . upon complying with section 429.010 to 429.340, shall have for his or her work or labor done, machinery or equipment rented or materials . . . a lien upon such building, erection or improvements, and upon the land belonging to such owner or proprietor on which the same are situated.
Mechanics' lien laws are remedial in nature; "its purpose is to give security to mechanics and materialmen for labor and materials furnished in improving the owner's property." R.L. Sweet Lumber Co. v. E.L. Lane, Inc., 513 S.W.2d 365, 371 (Mo. banc 1974). However, a lien claimant must substantially comply with statutory requirements. Lake Ozark Const. Indus., Inc. v. Osage Land Co., L.L.C., 168 S.W.3d 471, 476 (Mo.App. W.D.2005).
The owner, his agent, contractor, or subcontractor of the property must have contracted for improvements or materials furnished to the property. Section 429.010; St. Louis Concrete Prod. Mfg. Co. v. Walker, 64 S.W.2d 131, 132 (Mo.App. 1933); Hengstenberg v. Hoyt, 109 Mo.App. 622, 83 S.W. 539, 540 (1904). "Within six months after the indebtedness has accrued," the lien claimant must file a "just and true account" of the amount of the lien and a true description of the property. Section 429.080; See Missouri Land Dev. Specialties, LLC v. Concord Excavating Co., L.L.C., 269 S.W.3d 489, 497 (Mo.App. E.D.2008). The date the "indebtedness has accrued" is the last day work was performed or material incorporated. United Petroleum Service, Inc. v. Piatchek, 218 S.W.3d 477, 481-82 (Mo.App. E.D.2007); Channing v. Brindley-Sullivan, Inc., 855 S.W.2d 463, 465 (Mo.App. E.D.1993). When a job is finished and indebtedness has accrued is a question of fact. Channing, 855 S.W.2d at 465.
A "just and true account" forms the basis of the right to maintain a suit to enforce a mechanics' lien. Missouri Land Dev. Specialties, 269 S.W.3d at 497. Knowingly filing an untrue and unjust account vitiates the entire right of lien. Id. The purpose of "just and true" account requirement is to inform the landowner and other interested parties of "information sufficient to permit an investigation to determine whether the materials the claimant asserts he has furnished were actually used in the construction of the building, whether they were lienable items, and whether the amount charged is proper." Id. (citing Commercial Openings, Inc. v. Mathews, 819 S.W.2d 347, 349 (Mo. banc 1991)). Neither section 429.080 nor prior appellate precedent defines a "just and true account." Instead, a determination of what is "just and true" depends on the facts of each case. Id.
Point I: Lienable Items.
In their first point, the Preckels argue that Kelpe did not file a "just and true account" because it included work performed by subcontractors in the lien amount. They argue that contractors cannot maintain a lien for the work performed by subcontractors. Instead, they assert that each subcontractor must file a timely mechanics'...
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