Sachs Elec. Co. v. Hs Const. Co.

• Decision Date: 24 September 2002
• Docket Number: No. ED 79996.,ED 79996.
• Citation: 86 S.W.3d 445
• Parties: SACHS ELECTRIC COMPANY, Plaintiff, Bazan Painting Company, Plaintiff/Appellant/Cross-Respondent, Guarantee Electrical Construction Company, d/b/a Guarantee Electrical Company, Plaintiff, and Charles E. Jarrell Contracting Co., Inc., Plaintiff/Intervenor Plaintiff/Appellant, v. HS CONSTRUCTION COMPANY, Defendant, South Side National Bank, Defendant, Anheuser-Busch, Inc., Defendant/Respondent/Cross-Appellant, Anheuser-Busch Companies, Inc., Defendant/Respondent/Cross-Appellant, Metal Container Corporation, Defendant/Respondent/Cross-Appellant.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Court of Appeals

86 S.W.3d 445

SACHS ELECTRIC COMPANY, Plaintiff, Bazan Painting Company, Plaintiff/Appellant/Cross-Respondent, Guarantee Electrical Construction Company, d/b/a Guarantee Electrical Company, Plaintiff, and Charles E. Jarrell Contracting Co., Inc., Plaintiff/Intervenor Plaintiff/Appellant, v. HS CONSTRUCTION COMPANY, Defendant, South Side National Bank, Defendant, Anheuser-Busch, Inc., Defendant/Respondent/Cross-Appellant, Anheuser-Busch Companies, Inc., Defendant/Respondent/Cross-Appellant, Metal Container Corporation, Defendant/Respondent/Cross-Appellant.¹

No. ED 79996.

Missouri Court of Appeals, Eastern District, Division Two.

September 24, 2002.

COPYRIGHT MATERIAL OMITTED

Richard A. Stockenberg, St. Louis, MO, for Appellant-Cross-Respondent.

William T. Weidle, Jr., St. Louis, MO, Appellant.

John S. Meyer, Jr., Lisa Anne Houdyshell, David S. Slavkin, Bryan Cave LLP, St. Louis, MO, for Respondents-Cross Appellants.

Before GEORGE W. DRAPER III, P.J., and MARY R. RUSSELL, J. and MARY K. HOFF, J.

PER CURIAM.

This appeal arises out of Amended Findings of Fact, Conclusions of Law, Order and Judgment (amended judgment) entered after a non-jury trial in consolidated cases to enforce mechanic's liens, for equitable liens, and for relief in quantum meruit and/or unjust enrichment. At issue in this appeal is the circuit court's decision regarding the liability of Anheuser-Busch, Incorporated, Anheuser-Busch Companies, Inc., and Metal Container Corporation² (collectively referred to as Anheuser-Busch) to Bazan Painting Company (Bazan) and Charles E. Jarrell Contracting Company, Inc. (Jarrell) for money due to Bazan and Jarrell for work they performed in Texas and Missouri under subcontracts they had with a now-bankrupt general contractor, HS Construction Company. We reverse in part, affirm in part, and remand.

CHRONOLOGY OF EVENTS

Prior to January 18, 1999, HS Construction Co., as general contractor, and Anheuser-Busch, as owner, entered into contracts for construction and repair projects on various premises, including for this appeal's purposes, premises in the St. Louis, Missouri area, in Rome, Georgia, and in Houston, Texas. HS Construction Co. also entered into various subcontracts with Bazan and Jarrell for work pertaining to those projects. Bazan and Jarrell have not been paid in full for the work they performed under those subcontracts.

On January 18, 1999, an involuntary bankruptcy proceeding was filed against HS Construction Co. On February 16, 1999, Jarrell filed a mechanic's lien against Anheuser-Busch real estate. The bankruptcy court lifted the stay as to Bazan on February 2, 2000, as to Anheuser-Busch on June 21, 2000, and as to Jarrell on December 12, 2000. Bazan and Jarrell, among others, filed separate petitions against Anheuser-Busch, Inc., and others, seeking to recover the money allegedly due for the unpaid work. The circuit court consolidated those cases.

After the parties, other than Jarrell, had a non jury trial, and after Jarrell's lawsuit was consolidated with the other consolidated cases and submitted on motions for summary judgment, the circuit court entered its amended judgment. In its amended judgment the circuit court:

(1) awarded Bazan $70,591.31 against Anheuser-Busch, Inc., together with interest at the legal rate;

(2) awarded Bazan $2,987.90 against Metal Container Corp., together with interest at the legal rate;

(3) awarded Jarrell $16,851.00 against Anheuser-Busch, Inc., together with interest at the legal rate;

(4) entered judgment in favor of Anheuser-Busch Companies, Inc., Anheuser-Busch, Inc., and Metal Container Corp., and against Jarrell on its mechanic's lien claim; and

(5) entered judgment in favor of Anheuser-Busch Companies, Inc., Anheuser-Busch, Inc., and Metal Container Corp. and against Bazan on its equitable lien and constructive trust claims. The circuit court also expressly addressed certain other claims and then dismissed with prejudice any claim not "expressly determined or dismissed" in other parts of the judgment or proceedings.

These appeals and cross-appeal followed.

Jarrell's Appeal

In its three points on appeal, Jarrell urges the trial court erred (1) in dismissing its mechanic's lien count as not filed within six months because Anheuser-Busch was estopped from asserting this defense and no lawsuit would "be a complete action" in the absence of the bankrupt general contractor; (2) in dismissing its mechanic's lien count for untimeliness because Missouri law allows suspension or tolling of the time period for filing when Anheuser-Busch "has engaged in affirmative conduct unmistakably likely to mislead" Jarrell; and (3) in denying Jarrell's claim for a declaration of and a disbursement from a "construction trust" fund because Missouri law permits unpaid subcontractors to recover surplus funds in the hands of an owner on such a theory.³

Because the circuit court resolved Jarrell's claims by summary judgment, we review the judgment on Jarrell's claims de novo. ITT Commercial Fin. Corp. v Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). A summary judgment movant has the burden "to show a right to judgment flowing from [material] facts about which there is no genuine dispute." Id. at 378. Whether or not summary judgment is proper is a question of law, and we do not need to defer to the circuit court's grant of summary judgment. Id. at 376. We consider the record in the light most favorable to the party against whom judgment was entered, and take facts set forth in affidavits and otherwise in support of the successful motion as true unless they are contradicted by the non-moving party's response. Id.

On December 21, 2000, Jarrell filed its petition against Anheuser-Busch, Inc., as well as the now-bankrupt HS Construction Co., seeking a total of $16,851.00, "exclusive of interest, costs and attorneys' fees," due for work itemized in its mechanic's lien. Jarrell sought this relief through a mechanic's lien claim and an unjust enrichment claim. Those claims arise out of the unpaid subcontract work Jarrell performed for HS Construction Co. at Anheuser-Busch's St. Louis property.

With respect to Jarrell's mechanic's lien claim, the circuit court concluded that the pendency of the bankruptcy stay against HS Construction Co. did not affect Jarrell's ability to prosecute its mechanic's lien action against Anheuser-Busch, Inc.; Jarrell timely filed its notice of mechanic's lien; but Jarrell's mechanic's lien claim was barred due to Jarrell's failure timely to file the mechanic's lien lawsuit against Anheuser-Busch, Inc. Specifically, the circuit court stated:

Jarrell's mechanic's lien claim is barred. By the plain terms of Section 429.170, RSMo 2000, Jarrell was obliged to file its action with[in] six months after filing notice of lien with the Circuit Clerk. Although HS [Construction] may have been a necessary party to such an action, it does not follow that the bankruptcy stay tolled the statute of limitations as to [Anheuser-Busch]. Rule 52.04(b), Mo.R.Civ.P., expressly provides for the situation in which a claim can proceed even in the absence of a necessary party. Jarrell appears to assert the novel principle that inability to join a necessary party tolls the running of a statute of limitations with respect to all other parties. That cannot be true. Although there may be obstacles to proceeding with a mechanic's lien action when the general contractor is beyond the court's jurisdiction, it does not follow that defendants who could be sued cannot assert the statute of limitations by reason of that fortuitous circumstance.

The circuit court entered judgment in favor of Anheuser-Busch, and against Jarrell, on Jarrell's mechanic's lien claim.

With respect to Jarrell's unjust enrichment claim, the circuit court found that Jarrell had a viable quantum meruit claim against the Anheuser-Busch entity owning the premises where the work was performed and Jarrell was entitled to relief unless Anheuser-Busch paid HS Construction Co. on the same claim. Because Anheuser-Busch had not paid the full amount of the general contract proceeds to HS Construction Co., or actually paid the full amount of contract proceeds to other subcontractors, the circuit court found Anheuser-Busch was liable on Jarrell's quantum meruit claim and found that "[t]he record on Jarrell's motion for summary judgment establishe[d] Jarrell's right to judgment as a matter of law on its claim in quantum meruit against Anheuser-Busch, Inc." The circuit court awarded Jarrell $16,851.00 against Anheuser-Busch, Inc., together with interest at the legal rate. Notably, Anheuser-Busch, Inc. has not pursued an appeal from the $16,851.00 judgment in favor of Jarrell and against Anheuser-Busch, Inc.

The record does not reveal an express decision by the circuit court with respect to any other unjust enrichment claim pursued by Jarrell. Therefore, we understand any "construction trust" theory pursued by Jarrell was resolved by the circuit court's dismissal with prejudice of "all claims not heretofore expressly determined or dismissed" as set forth at the end of its amended judgment.

Jarrell first challenges the circuit court's decision that its mechanic's lien claim was barred as untimely because Jarrell did not file a mechanic's lien lawsuit within six months after the filing of the mechanic's lien as required by Section 429.170 RSMo 1994. Jarrell urges that the stay in effect when HS Construction was in bankruptcy tolled the six-month period for filing a mechanic's lien lawsuit against Anheuser-Busch, Inc. because, as the general contractor, HS Construction Co. was a necessary party to such a lawsuit and Jarrell could not pursue a claim against HS Construction Co. during the pendency of the bankruptcy stay. To support this argument, Jarrell relies on the Western District's decision in Major Lumber Co. v. G & B Remodeling, Inc., 817 S.W.2d 474 (Mo.App. W.D.1991).

In that...