S & R Builders and Suppliers, Inc. v. Marler

• Decision Date: 16 December 1980
• Docket Number: No. 41522,41522
• Citation: 610 S.W.2d 690
• Court: Missouri Court of Appeals
• Parties: S & R BUILDERS AND SUPPLIERS, INC., Plaintiff-Respondent, v. Harold A. MARLER et al., Defendants and Third-Party Plaintiffs-Appellants, v. Ted TENHOLDER et al., Third-Party Defendants-Respondents.

Page 690

610 S.W.2d 690

S & R BUILDERS AND SUPPLIERS, INC., Plaintiff-Respondent, v. Harold A. MARLER et al., Defendants and Third-Party Plaintiffs-Appellants, v. Ted TENHOLDER et al., Third-Party Defendants-Respondents.

No. 41522.

Missouri Court of Appeals, Eastern District, Division One.

Dec. 16, 1980.

Charles W. Medley, Farmington, for defendants and third-party plaintiffs-appellants.

David L. Colson, Gary W. Wagner, Farmington, for S & R Builders and Suppliers, Inc. and Ted Tenholder et al.

Eric C. Harris, Mayhugh, Harris & Blackwell, Flat River, for Mueller Plumbing & Heating Co., Inc.

SNYDER, Judge.

This is an equitable mechanic's lien action in which the original plaintiff was respondent S & R Builders and Suppliers, Inc. (S & R) and defendants were Thomas R. Sebastian (Sebastian) and Harold Marler and Martha Marler (Marlers). Ted Tenholder (Tenholder) and Mueller Plumbing and Heating Supply, Inc. (Mueller) were subsequently brought into the action as lien claimants. The court entered a judgment in favor of all three lien claimants against Sebastian, the general contractor, and imposed a lien on three acres out of the Marlers' 65 acre tract. The court appointed the three attorneys who represented Marlers, S & R and Mueller, respectively, to describe the three acre tract subject to the lien. Mr. Medley, attorney for the Marlers, refused to serve. The other two served, described the three acres of land subject to the lien and the trial court accepted their report and made the judgment final. Sebastian did not appeal from the judgment against him. The Marlers appealed, raising six points of error.

Appellants claim the trial court erred in: (1) allowing a lien to be imposed on three acres of land because the law existing at the time the lien attached permitted a lien on only one acre of rural real estate; (2) appointing commissioners and especially in appointing the attorneys of record as commissioners; (3) finding a lien in favor of Mueller because its lien was not timely filed; (4) allowing Mueller a lien because its evidence failed to establish the reasonable value of its labor and material; (5) finding a lien in favor of Tenholder because his mechanic's lien statement was not a just and true account for the reason that he failed to itemize labor; and (6) finding a lien in favor of S & R because its mechanic's lien statement was not a just and true account for the reason that it contained many nonlienable items and other items which were not legible.

There was no error except in the appointment of the attorneys of record as commissioners. The judgment imposing the liens is affirmed but remanded to the trial court with instructions to appoint disinterested commissioners to describe the three acres subject to the mechanic's lien.

The standard of appellate review of this court-tried mechanic's lien case is set forth in Murphy v. Carron, 536 S.W.2d 30, 32(1-3) (Mo. banc 1976). The standard requires that the decree of the trial court must be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Rule 73.01.

The Marlers' first point questions the imposition of the lien on three acres because the law at the time the liens attached provided for a lien on only one acre of rural real estate. The liens were for work and materials furnished during the latter part of 1972 and early 1973. At that time, § 429.010, RSMo 1969 provided for a lien on one acre for improvements to land not situated in any town, city or village. The statute was amended in 1974 to provide for a lien on three acres for improvements to land not situated in any city, town or village. § 429.010, RSMo 1978.

The court was correct in granting a lien on three acres. Article I, Section 13 of the Missouri Constitution provides "(t)hat no ex post facto law, nor a law impairing the obligation of contracts, or retrospective in its operation, ... can be enacted." However, this section of the constitution does not apply to a statute dealing only with procedural remedies. "In such case the statute applies to all actions falling within its terms, whether commenced before or after the enactment, ... unless a contrary intention is expressed by the legislature...." Scheidegger v. Greene, 451 S.W.2d 135, 137(1, 2) (Mo.1970) citing State ex rel. Clay Equipment Corp. v. Jensen, 363 S.W.2d 666, 669(1, 2) (Mo. banc 1963); State ex rel. LeNeve v. Moore, 408 S.W.2d 47, 49(1) (Mo. banc 1966).

In Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371, 378(10) (1937), the Missouri Supreme Court said, quoting Corpus Juris, " 'Substantive law is that part of the law which creates, defines and regulates rights, as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion.' 36 C.J. p. 963." The mechanic's lien law is remedial in nature. Maran-Cooke, Inc. v. Purler Excavating, Inc., 585 S.W.2d 38, 40(2, 3) (Mo. banc 1979); Yamnitz v. Polytech, Inc., 586 S.W.2d 76, 84(15-17) (Mo.App.1979). It is adjective or procedural law and the amendment changing the lien tract from one acre to three acres applies to the present action even though it was commenced before the passage of the amendment, the legislature having expressed no contrary intention.

Appellants rely only on Lucas v. Murphy, 348 Mo. 1078, 156 S.W.2d 686 (1941) for the proposition that all new statutes must be held to operate prospectively only unless the intent is clearly expressed to the contrary in the statute. Lucas v. Murphy is distinguishable because it dealt with the taxing statute relating to unemployment compensation which is a substantive law creating a right in the state to levy taxes to pay for unemployment benefits. The court in Lucas v. Murphy held only that the taxing statute was passed after the lien of a deed of trust came into existence and therefore the tax lien did not take precedence over the prior deed of trust. There is language in Lucas v. Murphy which seems to support appellant's position, but the case makes no distinction between statutes affecting substantive rights and those affecting procedural remedies. This point is ruled against appellants.

Appellants' second point relating to the appointment of commissioners is well taken. In the first part of their brief they refer to the appointment of a referee by the trial court under Rule 101.16, but in fact the court did not rely on that rule, and did not appoint a referee but appointed commissioners as it was empowered to do. Hertel Electric Co. v. Gabriel, 292 S.W.2d 95, 100(5, 6) (Mo.App.1956); Tual v. Martin, 228 Mo.App. 30, 66 S.W.2d 969 (1933), reh. denied January 10, 1934.

The trial court erred, however, in appointing the lawyers of the parties as commissioners to determine the acreage subject to the lien. Neither the lawyer for the Marlers nor the attorneys for the lien claimants could be considered unbiased, and it placed the lawyer for the Marlers in an untenable position to be asked to establish the boundaries of the three acres upon which a lien was to be imposed against his clients. He understandably declined to serve in that capacity. A fair hearing under the American idea of justice implies an unbiased presiding officer. Jones v. State Department of Public Health and Welfare 354 S.W.2d 37, 40(4-6) (Mo.App.1962). The duty of the commissioners was not to hold a hearing but it was to make a decision which would affect the lien rights of the claimants against the land of the Marlers. Unbiased commissioners should have been appointed. Needless to say, the appointed attorneys were not unbiased. This point is ruled in favor of appellants.

The third claim of error raised by appellant relates to the lien found in favor of Mueller. Appellant alleges that Mueller did not perform any work within four months of filing the lien in the circuit court as required by § 429.080, RSMo 1978.

Appellant argues that the only work performed within four months of the lien filing was not part of Mueller's contract and was of a trivial nature. Mueller was a subcontractor of Sebastian, the general contractor. The subcontract covered the installation of heating and air-conditioning for the lump sum of $1,873. The lien amount was $1,913 because of extras added later. The work on the subcontract was completed on December 22, 1972 and billed to the general contractor. Mueller's records show that an extra register was installed on March 5, 1973 and that Mueller returned to the job to repair another contractor's work on April 23, 1973. The lien was filed on July 25, 1973.

Unless the work done on April 23, 1973 was lienable, Mueller's claim must fail. The work done by Mueller on April 23 was lienable. It is undisputed that work was done on March 5, 1973, the work being the installation of three vent registers. Subsequently, on April 23, 1973 Mueller's installer, Dan Dunlap, and an assistant expended one hour of labor and used two one-half gallon cans of roof flashing cement to correct a water leak.

There is testimony that the work done on March 5, 1973 and on April 23, 1973 was done at the request of the Marlers, although the Marlers deny this. The credibility of the witnesses was for the trial court to decide and the court chose to believe that the Marlers did indeed request the work to be done. Inasmuch as the last date that materials and labor were incorporated into the residence was April 23, 1973 and the mechanic's lien was filed on July 25, 1973, the lien was filed within four months of the date the indebtedness accrued, as required by the statute for the perfection of the lien. § 429.080, RSMo 1978.

The Marlers' contract called for the completion of the job in a workmanlike manner and the final work performed by Mueller was done in compliance with this contract provision. In A. E. Birk & Son Plumbing & Heating, Inc. v. Malan Construction Co., 548 S.W.2d 611,...