State, ex rel. Kirkwood Excavating, Inc. v. Stussie, 49605

• Decision Date: 09 April 1985
• Docket Number: No. 49605,49605
• Parties: STATE of Missouri, ex rel. KIRKWOOD EXCAVATING, INC. and C.L.M. Contracting, Inc., Relators, v. Hon. Harry J. STUSSIE, Circuit Judge of St. Louis County, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 131

689 S.W.2d 131

STATE of Missouri, ex rel. KIRKWOOD EXCAVATING, INC. and C.L.M. Contracting, Inc., Relators, v. Hon. Harry J. STUSSIE, Circuit Judge of St. Louis County, Missouri, Respondent.

No. 49605.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 9, 1985.

David M. Korum, Kirkwood, for relators.

Morton R. Newman, Mayer S. Klein, Clayton, for respondent.

SNYDER, Judge.

Relators filed their petition for a writ of prohibition or in the alternative a writ of mandamus, seeking to prohibit the respondent judge from dismissing their contract petition (Kirkwood Excavating, Inc. and C.L.M. Contracting, Inc., joint venturers, vs. Carafiol's Properties Company, Cause No. 477108) and from denying their motion to consolidate their contract action into a pending mechanic's lien action (Krupp Construction Company, Inc. vs. Carafiol's Properties Company, et al., Cause No. 440675).

This court issued its preliminary writ of mandamus in which it ordered the respondent judge to refrain from all action on both the relators' contract suit and the mechanic's lien suit. The preliminary writ further ordered a stay of any orders entered by respondent on relators' motion to consolidate and the motion to dismiss of the defendant in the underlying contract suit.

The parties briefed the issues, the court heard oral argument, and now makes its preliminary writ absolute by ordering the respondent judge to set aside his order of January 18, 1985, in which he granted the defendants' motion to dismiss the relators' underlying contract action and dismissed the cause of action with prejudice, at the same time denying relators' motion to consolidate their contract action with the mechanic's lien action; respondent judge is further ordered to deny the defendants' motion to dismiss in the underlying contract action, to grant relators' motion to consolidate and to permit relators to prosecute their cause of action on the contract.

The genesis of this litigation was a petition filed by Krupp Construction Company, Inc., as plaintiff, to enforce a mechanic's lien against Aaron and Joseph Carafiol, a partnership, doing business as Carafiol Properties Company. Various other defendants were joined in the action. Penrod, Inc. filed a separate mechanic's lien suit against Carafiol and the Penrod suit was consolidated into the Krupp lien suit.

The Krupp suit was filed on June 30, 1980, the consolidation of the Penrod suit with the Krupp suit took place on April 24, 1981. As is usual in mechanic's lien actions, the parties filed many pleadings and engaged in various forms of discovery. One of the defendants, Swan Construction Company, Inc., on July 9, 1982 filed its first amended cross-claim in five counts against Carafiol.

There were negotiations and settlements during the course of which the relators on July 30, 1982 filed a suit for breach of contract and damages of $51,405.49, arising out of their performance of excavation work.

By September 27, 1982, cross-claimant Swan Construction Company, Inc. was the only party left with a claim against Carafiol in the Krupp lien suit, both Krupp and Penrod having dismissed their petitions and Swan having dismissed Counts I, II and III of its cross-claim, leaving Counts IV and V still to be litigated. Swan and Carafiol passed the cause for settlement on the remaining Counts IV and V on December 31, 1982. No further activity occurred until August 27, 1984.

Carafiol filed its motion to dismiss relators' contract suit on or about July 3, 1984 and then on August 27, 1984 relators filed their motion to consolidate their contract suit into the Krupp mechanic's lien suit. Relators filed a duplicate of the motion to consolidate in their contract suit.

Swan and Carafiol, on December 14, 1984, filed their memorandum of dismissal with prejudice of Counts IV and V of Swan's cross-claim in the lien suit. Their memorandum was signed by Judge Ninian M. Edwards.

The respondent judge said he would grant the motion to dismiss the contract suit, apparently because he considered the lien suit closed, and deny the motion to consolidate of relators, on January 15, 1985 unless he were prohibited by a higher court order. Respondent did in fact sign an order on January 18, 1985, granting the motion to dismiss and denying the motion to consolidate, this court's preliminary writ not having been issued until the same day, January 18, 1985.

Relators seek prohibition or mandamus. No issue has been raised concerning the propriety of the remedy sought by relators. This court will treat the action as one for mandamus and finds that the remedy is applicable to the facts and the procedural posture of the causes of action.

This court approved mandamus in State ex. rel. Power Process v. Dalton, 681 S.W.2d 514, 516 (Mo.App.1984). The relators in Power Process sought mandamus to enforce their right to intervene rather than to enforce a motion to consolidate. The facts in Power Process are almost on all fours with the facts in the case under review, except that here the relators are attempting to enforce a motion to consolidate rather than a motion to intervene. The result of granting either motion would be the same.

There is no rule allowing consolidation as a matter of right as there is allowing intervention as a matter of right, Rule 52.12(a). Relators' request is in fact a request to intervene in the Carafiol suit just as the relators in Power Process sought intervention, even though one of them had filed a separate suit on contract in the same circuit court.

This court is mindful of the case of State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983), in which the supreme court held that the lower court should not continue the unfettered use of the writ of prohibition to allow interlocutory review of trial court error. The holding in Morasch, however, has been modified in State ex rel. Richardson v. Randall, 660 S.W.2d 699, 701 (Mo. banc 1983). The court further limited the effect of the the Morasch ruling in State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984). See Judge Blackmar's concurrence.

Here we are concerned with mandamus, and although relators did not file a motion to intervene, the practical effect of their motion to consolidate is an intervention just as it was in Power Process. See that case for additional citations on mandamus.

In the case under review absolute, irreparable harm may come to relators if relief by way of an extraordinary remedy is not available to them. They are entitled to intervention and mandamus will lie to provide a remedy for the wrong they may suffer.

Relators in State ex rel. Power Process were corporations which had filed suits against certain defendants, one relator in the Circuit Court of the City of St. Louis and the other in St. Charles County. Their motions to intervene in a mechanic's lien suit which arose out of the same construction project were denied by the court.

Similarly, relators here have filed a breach of contract suit in St. Louis County which arises out of the same construction project as does the Krupp lien action against Carafiol. The cases are similar in every respect and the only reason which might be advanced, and which has been advanced, for not granting relators' motion and for not making this court's preliminary writ absolute is the fact that the Krupp lien suit in the case under review had been passed for settlement before relators' motion to consolidate was filed.

A stipulation for dismissal of the last two counts of the Swan cross-claim was filed with the court but at the time it was filed the relators' motion to consolidate had already been filed and was still open. It had not been ruled upon. The cause was still pending for purposes of the motion.

The supreme court has ruled that equitable mechanic's lien suits once filed are the exclusive remedy in all disputes, whether based on contract only or on a lien claim, when the disputes are between parties involved in the same construction project from which the mechanic's lien suit arises. State ex rel. Clayton Green's Nursing Center, Inc. v. Marsh, 634 S.W.2d 462, 465 (Mo. banc 1982).

A breach of contract suit arising out of a construction project cannot be maintained and the proceedings must be stayed if an equitable mechanic's lien action has been filed relating to the same project. This holds true whether the breach of contract action was filed before or after the mechanic's lien suit was filed. State ex rel. Clayton Green's Nursing Center, Inc. v. Marsh.

Unless the preliminary writ of mandamus is made absolute here, relators will be left without a remedy. They would be prohibited from ever litigating their cause of action. Such a result would be inequitable and should not be permitted. In the Clayton Green's v. Marsh case the supreme court has interpreted the mechanics' lien statute, § 429.300 RSMo. 1978, to mean that a contractor or supplier on a construction project cannot recover in a breach of contract suit if a mechanic's lien suit is filed by a different entity which did work on the same job, unless the breach of contract suit is joined with the mechanic's lien suit.

The Krupp lien suit file was still open in the court when relators' motion was filed, even though it had been passed for settlement. This court holds that it was open for purposes of consolidation or intervention until actually dismissed by the court, an action which had not been taken at the time relators sought to join in the mechanic's lien action.

Respondent relies on Fair Mercantile Company v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751 (1949), but that case is distinguishable. In Fair Mercantile the cause was passed for settlement after the plaintiffs had testified in open court that they had reached an agreement in which "defendant would pay plaintiff $2,500.00 in full settlement and pay all costs and that plaintiff would execute a release to defendant...