United Lumber Co. v. Minmar Inv. Co.

• Decision Date: 27 July 1971
• Docket Number: No. 33943,33943
• Citation: 472 S.W.2d 630
• Parties: UNITED LUMBER COMPANY, a Corporation, Plaintiff-Respondent, v. MINMAR INVESTMENT COMPANY, a Corporation, et al., Defendants, Warren H. Wemhoener et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 630

472 S.W.2d 630

UNITED LUMBER COMPANY, a Corporation, Plaintiff-Respondent, v. MINMAR INVESTMENT COMPANY, a Corporation, et al Defendants, Warren H. Wemhoener et al Defendants-Appellants.

No. 33943.

St. Louis Court of Appeals, Missouri.

July 27, 1971.

Motions for Rehearing or for Transfer to Supreme Court

Denied Oct. 6, 1971.

Application to Transfer Denied Dec. 13, 1971.

Ziercher, Tzinberg, Human & Michenfelder, Clayton, Victor Packman, Lake & Schechter, Clayton, for defendants-appellants.

Oliver F. Erbs, Kirkwood, for defendants.

Susman, Willer, Rimmel & Elbert, Warren H. Kawin, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

By this equitable mechanics' lien action United Lumber Company sought to recover for the value of materials furnished to defendant Minmar Investment Company in the construction of seven residences in a subdivision named Woodmoor Acres, located in the City of Olivette, St. Louis County, and to have one lien impressed against the seven lots on which such residences are situated. Named as defendants in addition to Minmar, the developer of the subdivision, were other lien claimants, the record owners of the seven lots to whom title thereto had been transferred, the holders of individual notes and deeds of trust on six of the lots, and the trustees named in those deeds of trust. Minmar defaulted and a judgment for $7,168.84, together with interest, was rendered against it, from which no appeal was taken. Both the plaintiff and the above named defendants-appellants (hereafter called defendants), filed separate motions for a summary judgment. The chancellor initially rendered a judgment in favor of the defendants, but on motion of plaintiff set it aside and ultimately entered a judgment and decree in favor of plaintiff by which a lien was impressed against the seven residences and lots, with priority over the respective deeds of trust. The chancellor declared that portion of the action to be final for the purposes of appeal, and defendants' appeal followed.

The record before us discloses that on July 26, 1965, and for an undisclosed period prior thereto, Minmar was the owner of record of a rectangular tract of land fronting on the north line of Villa Avenue, and described as Lot 2 of LePere Villa Place, located in the City of Olivette, St. Louis County. Minmar caused the tract to be surveyed and platted as a subdivision, named Woodmoor Acres. The plat shows that the tract was subdivided into twelve lots, numbered 1 to 12, inclusive, and a private street named Woodmoor Drive, which extends northwardly from Villa Avenue and terminates in a circular turn-around on the property. The affidavit attached to the plat, executed by the president and secretary of Minmar and dated July 26, 1965, reads in part: 'Woodmoor Drive, 40 ft. W. and its rounded intersection shown hatched on the above plat is hereby dedicated as a private street for the use and benefit of the owners of lots in the above subdivision * * *.' Minmar, by its officers, also executed what was titled, 'Trust Agreement and Indenture of Restrictions, 'Woodmoor Acres',' likewise dated July 26, 1965, the provisions of which will be subsequently discussed. According to the affidavit of a title examiner, not controverted, the plat and the Trust Agreement were filed for record on August 23, 1965, and recorded in Book 116, Page 44, of the St. Louis County records.

Plaintiff advances alternative grounds in support of its claimed right to enforce one lien against the seven lots. Both of its arguments involve the construction or application of § 429.040, RSMo 1969, V.A.M.S., which provides:

'When the improvements consist of two or more buildings, united together and situated upon the same lot or contiguous lots, or separate buildings upon contiguous lots, or a continuous or connected sidewalk in front or alongside of contiguous lots, and erected under one general contract, it shall not be necessary to file a separate lien upon each building or lot for the work done or materials furnished in the erection of such improvements. (R.S.1939, § 3579)'

In connection with its first contention plaintiff points out that while the plat of the subdivision and the Trust Agreement bear the date of July 26, 1965, neither was filed of record until August 23, 1965; and that in the interim, on August 11, 1965, an excavating contractor, named Robert T. Boston, began his work on the tract under a contract with Minmar. Accordingly, plaintiff maintains, it is entitled to have one lien impressed since, having been properly filed, it dates from August 11, 1965, at which time Minmar was the owner of the entire, undivided, and hence contiguous, tract.

To establish the date of August 11, 1965, as the time for the commencement of its lien plaintiff relies exclusively on the affidavit of Boston, filed in support of its motion for summary judgment. In his affidavit, after stating that he was over 21 years of age and had been engaged for many years in excavating and grading work, he deposed:

'* * * that in 1965 I was employed by Minmar Investment Company, through Mr. Frank Weinberg, under a contract to perform certain services in connection with the clearing, grading, and excavating necessary for the development of the Woodmoor Acres Subdivision, located on the North side of Villa Avenue in the City of Olivette, Missouri.

'I further state that the first work performed by me and my employees on the Woodmoor Subdivision pursuant to my employment by Minmar Investment Company, occurred on August 11, 1965.'

We agree that under the so-called 'first spade rule,' Schroeter Bros. Hardware Co. v. Croation 'Sokol' Gymnastic Ass'n, 332 Mo. 440, 58 S.W.2d 995, a properly filed mechanics' lien dates from the commencement of the work on the building or the furnishing of the materials therefor. H. B. Deal Construction Co. v. Labor Discount Center, Inc., Mo., 418 S.W.2d 940. Here plaintiff furnished materials used in the erection of the seven residences. What is meant by the phrase 'commencement of the building,' and did the work performed by Boston, as stated in his affidavit, fall within the scope of that phrase? In Deal, the Supreme Court (418 S.W.2d 940, 951) defined the phrase as meaning '* * * the visible commencement of actual operations on the ground for the erection of the building or the making of the improvement which makes it apparent that a building has been commenced or that an improvement is to be made, done with the intention and formed purpose to continue the work until completed. * * *' The court quoted from Boisot on Mechanics' Liens, § 56, to the effect that such work as the excavation for the foundation, or the attachment to the land of any material used in constructing a building would fall within the meaning of the phrase, but it also held that such work as laying off the ground for buildings, driving pegs, clearing stumps, on-site inspections, and locating test holes would not. Of particular relevancy in the instant case is the following passage from its opinion (418 S.W.2d 951):

'* * * and in Rupp (Trustees) v. Cline & Sons, Inc., 230 Md. 573, 188 A.2d 146, 1 A.L.R.3d 815, grading and leveling the lot, were held insufficient to constitute 'commencement' of the building. * * *'

We are not unmindful of the Supreme Court's opinion in L. Vasquez v. Village Center, Inc., Mo., 362 S.W.2d 588, decided by Division No. 1 of the Supreme Court, as was Deal, but we are of the opinion it is not applicable to the instant case. There the plaintiff, an excavating and grading contractor, sought to have a lien impressed on the real estate because of the work he performed in grading the vacant land in preparation for a shopping center. Defendant maintained that such work was not lienable inasmuch as it was not performed as part of a contract for the construction of a building. In ruling that the plaintiff was entitled to a lien the court said (362 S.W.2d 588, 594):

'It appears to us that there was substantial evidence from which a jury reasonably could have found that the work performed by plaintiff was lienable within the meaning of the language of Section 429.010, construed, as it should be, as favorably to plaintiff as its terms will permit. That is because there was evidence justifying a finding that the work plaintiff did was performed as an integral part of a total plan to proceed without delay to erect a group of buildings as a shopping center on the land in question. The evidence that the course of the creek which meandered through the property was changed; the evidence as to the leveling and filling, the construction of parking areas adjacent to designated building sites, the providing of means of ingress and egress for the proposed shopping center and the parking areas to and from Manchester Road, the preparing of subgrades for buildings on which concrete slabs were to be poured as the next step in the construction process--all amounted to evidence of essential work in the accomplishment of the specific plan and intention to build a shopping center including buildings. * * *'

In the instant case it is not Boston, the grading contractor, who seeks to impress a lien on the entire tract for the services he performed as it was in Vasquez, it is plaintiff, a materialman, who seeks to enforce one lien against the seven residences and the lots on which they stand. The Deal case would indicate that Boston's work of clearing and grading would not constitute the commencement of the residences. And the reference in his affidavit to '* * * excavating necessary for the development of the Woodmoor Acres Subdivision, * * *' is an ambiguous phrase which may or may not have some connection with the commencement of the residences. Even under Vasquez, Boston's affidavit was not sufficient to show as a matter of law, on summary judgment, that work he performed, '* * * was performed as an integral part of a total plan to proceed without delay to erect * *...