R. J. Stephens Drywall and Painting Co. v. Taylor-Morley-Simon, Inc., TAYLOR-MORLEY-SIMO

• Decision Date: 19 January 1982
• Docket Number: No. 43103,INC,TAYLOR-MORLEY-SIMO,43103
• Citation: 628 S.W.2d 374
• Parties: R. J. STEPHENS DRYWALL AND PAINTING COMPANY, a corporation, Plaintiff-Appellant, v., a corporation, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 374

628 S.W.2d 374

R. J. STEPHENS DRYWALL AND PAINTING COMPANY, a corporation, Plaintiff-Appellant, v. TAYLOR-MORLEY-SIMON, INC., a corporation, et al.,

Defendants-Respondents.

No. 43103.

Missouri Court of Appeals, Eastern District, Division Four.

Jan. 19, 1982.

R. W. Jacobsmeyer, Clayton, for plaintiff-appellant.

W. Dudley McCarter, Suelthaus, Krueger, Cunningham Yates & Kaplan, Clayton, for defendants-respondents.

SMITH, Presiding Judge.

Plaintiff appeals from a summary judgment against it on each count of its nine count petition seeking mechanic's liens. Taylor-Morley-Simon, Inc. was, at the time the materials and labor were supplied, the owner of each parcel of land against which the liens were asserted. Also joined as defendants were subsequent owners and various mortgage holders. Each count was directed against a separate parcel. The aggregate alleged debt is $38,121. The basis of the summary judgment was the failure of plaintiff as an original contractor to serve the statutory "Notice to Owner" mandated by Sec. 429.012 RSMo 1978. We affirm in part and reverse in part.

There is no dispute that the statutory notice was not given by plaintiff to Taylor-Morley-Simon, Inc. Such notice is a "condition precedent to the creation, existence or validity of any mechanic's lien in favor of such original contractor." Sec. 429.012, subd. 2. Initially plaintiff attacks the summary judgment on the basis that plaintiff was not an original contractor but instead a subcontractor. Plaintiff's petition alleged that the materials and labor were supplied under contract with Taylor-Morley-Simon, Inc. There is no dispute that the Taylor corporation was the owner at all relevant times. One who makes a contract to perform labor or to supply materials with the then owner of the property is an original contractor. Home Building Corp. v. Ventura Corp., 568 S.W.2d 769 (Mo banc 1978) (1, 2); Vasquez v. Village Center, Inc., 362 S.W.2d 588 (Mo.1962) (7). Additionally, plaintiff's petition alleges facts which establish that if it were a subcontractor its lien was untimely filed under Sec. 429.080.

Secondly, plaintiff contends the lien law should be liberally construed in favor of those who perform work and provide materials and that technical non-compliance should not defeat the lien. R. L. Sweet Lumber Co. v. E. L. Lane, Inc., 513 S.W.2d 365 (Mo banc 1974) (5). This argument implies there is something to construe; there is not. The statute requires the notice to owner and makes it a condition precedent to creating the lien. The language is plain and unambiguous and requires no construction. United Air Lines, Inc. v. State Tax Commission, 377 S.W.2d 444 (Mo banc 1964) (3-6). The burden is on plaintiff to show compliance with the statutory prerequisites to create the lien. Hertel Electric Co., Inc. v. Gabriel, 292 S.W.2d 95 (Mo.App.1956) (9, 10). The plaintiff has not made reasonable and substantial compliance with the statute (see, e.g., Putnam v. Ross, 46 Mo. 337 (1870)), rather it is in total non-compliance with a mandated condition precedent to the creation of its liens.

Thirdly, plaintiff suggests that because of its past relationship with Taylor-Morley-Simon, Inc. there was no prejudice to that owner. Prejudice or harm is not required. "Lack of prejudice to the owner does not relieve plaintiff from being in substantial compliance with the mechanic's lien statutes." Sentinel Woodtreating, Inc. v. Cascade Development Corp., 599 S.W.2d 268 (Mo.App.1980) (10).

Finally, plaintiff contends that its petition was based upon quantum meruit and therefore it was not a contractor "under or by...