Union Elec. Co. v. Clayton Center Ltd.

• Decision Date: 18 May 1982
• Docket Number: No. 44405,44405
• Citation: 634 S.W.2d 261
• Parties: UNION ELECTRIC COMPANY, Plaintiff-Appellant, v. CLAYTON CENTER LIMITED, Defendant, and Mercantile Mortgage Company, Metropolitan Life Insurance Company, St. Louis County Bank, Patrick M. Duggan and Edgar T. Farmer, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 261

634 S.W.2d 261

UNION ELECTRIC COMPANY, Plaintiff-Appellant, v. CLAYTON CENTER LIMITED, Defendant and Mercantile Mortgage Company, Metropolitan Life Insurance Company, St. Louis County Bank, Patrick M. Duggan and Edgar T. Farmer, Defendants-Respondents.

No. 44405.

Missouri Court of Appeals, Eastern District, Division One.

May 18, 1982.

Schlafly, Griesedieck, Ferrell & Toft, James J. Virtel, Jonathan W. Igoe, St. Louis, for plaintiff-appellant.

Edgar Farmer, Clayton, Shulamith Simon, St. Louis, for defendants-respondents.

CRANDALL, Judge.

Union Electric brought this action seeking damages against Clayton Center, Ltd. It also sought to impress a mechanic's lien on certain real estate, a declaration that the lien be given priority over the deeds of trust held on the property, and an accounting from the holders of those deeds. Union Electric had made certain improvements on real estate located in Clayton, Missouri, that had been owned by Clayton Center, Ltd. The property was subject to prior deeds of trust held by Mercantile Mortgage Company, Metropolitan Life Insurance Company and St. Louis County Bank.

On April 23, 1981, the trial court entered judgment against Clayton Center, Ltd. for $44,986 and granted summary judgment in favor of respondents Mercantile Mortgage Company, Metropolitan Life Insurance Company and St. Louis County Bank declaring, in effect, that Union Electric was not entitled to a mechanic's lien. Clayton Center did not appeal. Union Electric appeals that portion of the trial court's judgment which denied it a mechanic's lien. We reverse and remand.

The land, owned by Clayton Center, Ltd., was divided into two parts. Part "A" was subject to a deed of trust held by Edgar T. Farmer for the benefit of Metropolitan Life Insurance Company and Mercantile Mortgage Company executed on November 4, 1974. Portion "B" was subject to a deed of trust of the same date held by Patrick M. Duggan for the benefit of Mercantile Mortgage Company and St. Louis County Bank. The deeds were taken as security for money loaned for the purchase of the land and for certain site improvements thereon.

Union Electric contracted with the president of Clayton Center, Ltd. to construct electrical facilities on the real estate. Work commenced on January 19, 1976, and Union Electric was paid an initial $30,000 by Pioneer National Title Insurance, the escrow agent. Appellant ceased work on July 17, 1976, after learning that Clayton Center, Ltd. had defaulted on its loans from the mortgage holders. That default resulted in a June 25, 1976, foreclosure sale of Portion "A" to Metropolitan and Mercantile and a foreclosure sale of Portion "B" to Mercantile and County Bank on August 18, 1976.

In ruling on a motion for summary judgment, the trial court and the appellate court must scrutinize the record in the light most favorable to the party against whom the motion for summary judgment was filed and against whom judgment was rendered, and must accord to that party the benefit of every doubt. Edwards v. Heidelbaugh, 574 S.W.2d 25, 26 (Mo.App.1978). Summary judgment is a drastic remedy and is therefore inappropriate unless the prevailing party has shown by unassailable proof to be entitled thereto as a matter of law. Rule 74.04(h); Seliga Shoe Stores, Inc. v. City of Maplewood, 558 S.W.2d 328, 331 (Mo.App.1977). If a genuine issue of fact exists, summary judgment cannot be granted. A genuine issue of fact exists when there is the slightest doubt about the facts. Williams v. Irwin-Willert Company, 604 S.W.2d 640, 642 (Mo.App.1980). However, the fact in doubt must be a material one which has legal probative force as to a controlling issue. Peer v. MFA Milling Company, 578 S.W.2d 291, 292 (Mo.App.1979).

In this case the effective date of the deeds of trust given on the land was prior to the effective date of the desired mechanic's lien. Therefore, the deeds of trust were superior on the land, §§ 429.050-.060, ¹ absent waiver by the holders of those deeds. Drilling Service Co. v. Baebler, 484 S.W.2d 1, 10 (Mo.1972). Appellant is entitled to a mechanic's lien with first priority as to the improvements it made and has the right to order those improvements sold or even removed. Section 429.050. On the other hand, the respondents have priority under § 429.060 as to the land itself because their deeds of trust were perfected prior to the commencement of any work by appellant. Kranz Construction Co. v. Centropolis Crusher, Inc., 630 S.W.2d 140, 147 (Mo.App.1982). We hold that the trial court erroneously denied appellant a mechanic's lien superior to the existing deeds of trust to the extent of the improvements that it made on the property. Although appellant's lawsuit primarily seeks priority of its mechanic's lien over the holders of the deeds of trust as to the land, we cannot say, based upon the record before us, that they abandoned their rights under § 429.050.

We next turn our...