WEST CENTRAL CONCRETE, LLC v. Reeves
| Decision Date | 01 June 2010 |
| Docket Number | No. WD 71462.,WD 71462. |
| Citation | 310 SW 3d 778 |
| Parties | WEST CENTRAL CONCRETE, LLC, Appellant, v. Jim REEVES d/b/A Reeves & Sons Construction, Aaron McClure & Tricia McClure, Robert L. Cox, Trustee and Hawthorn Bank, Respondents. |
| Court | Missouri Court of Appeals |
R. Scott Gardner, Sedalia, MO, for appellant.
Jim Reeves, respondent pro se.
J. Eric Mitchell, Clinton, MO for respondents McClures.
Robert L. Cox, Clinton, MO, for respondents Hawthorn and Cox.
Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
West Central Concrete, LLC ("West Central") appeals from a trial court judgment dismissing its mechanic's lien enforcement action for lack of prosecution. West Central contends that the trial court abused its discretion in dismissing the action because the factual findings in the trial court's judgment are contrary to the facts reflected on the trial court's docket sheet. West Central also maintains that the trial court failed to include a finding in its judgment that the delay in serving one of the defendants, Jim Reeves d/b/a Reeves & Sons Construction ("Reeves"), was "unnecessary." We affirm.
This is an appeal from a judgment of the circuit court of Henry County dismissing West Central's mechanic's lien enforcement action for lack of prosecution. The action arose out of an unpaid debt owed by Reeves to West Central for materials and labor furnished in the construction of concrete footings, walls, and floors for a residence owned by Aaron and Tricia McClure (the "McClures"). Reeves was the general contractor responsible for construction of the McClures' residence.
On November 5, 2008, West Central filed its statement of mechanic's lien against the McClures' property with the Clerk of the Circuit Court of Henry County.
On November 17, 2008, West Central filed suit to enforce its mechanic's lien. The suit named the McClures, Reeves, Hawthorn Bank ("Hawthorn"), which held a deed of trust on the McClures' property, and Robert Cox ("Cox"), the trustee on the deed of trust, as defendants. Summons issued for all defendants two days later. An initial hearing was scheduled for December 22, 2008.
All defendants, except Reeves, were served, and filed answers to West Central's Petition or otherwise entered an appearance by December 16, 2008. On December 22, 2008, the trial court rescheduled the hearing set for that date to February 9, 2009, because Reeves had not yet been served. A `non-est' return on Reeves's summons was filed on December 30, 2008, indicating no attempts at service had been made.
West Central obtained an alias summons for Reeves on January 9, 2009. However, service on Reeves was not obtained, and on February 9, 2009, the trial court again continued the hearing scheduled for that date to March 23, 2009.
On February 10, 2009, West Central filed a Request for Pluries Summons for Reeves. The summons was issued on February 17, 2009. On February 21, 2009, a special process server picked up copies of the pluries summons. However, service on Reeves was not secured.2
On March 23, 2009, the rescheduled hearing date, West Central did not appear. The trial court rescheduled the hearing to May 11, 2009, but noted that the case was subject to being dismissed for lack of prosecution because Reeves had not been served. The trial court's docket entry for March 23, 2009, indicates that West Central was directed to request another summons.
By May 11, 2009, the rescheduled hearing date, Reeves still had not been served, and West Central had not requested another summons. However, the trial court agreed to once again reschedule the hearing to July 13, 2009. The trial court's docket sheet reflects that West Central was again directed to request another summons.
On May 21, 2009, Hawthorn and Cox filed a Motion to Dismiss West Central's mechanic's lien enforcement action for failure to diligently prosecute. On May 26, 2009, the McClures filed a similar Motion to Dismiss. Both Motions were set for hearing on June 8, 2009. That hearing was subsequently continued to July 13, 2009.
On June 29, 2009, West Central requested a summons and the appointment of a special process server. The summons was issued on the same day, and the special process server was provided copies of the summons to serve on Reeves. The record does not include a return of this service, but in West Central's suggestions in opposition to the pending Motions to Dismiss, which West Central filed on August 5, 2009, West Central represented that attempts were made to serve Reeves at an address provided for Reeves in another County.
On July 10, 2009, three days before the July 13, 2009 rescheduled hearing date, West Central request an order permitting service of Reeves by publication in the Clinton Daily Democrat. On the same day, an Order for Service by Publication of Notice was issued. The trial court continued the hearing on the Motions to Dismiss which had also been scheduled for July 13, 2009, to permit the filing of suggestions in support and suggestions in opposition.
On August 20, 2009, the trial court issued its judgment of dismissal for lack of prosecution, stating that West Central had failed to join Reeves, a necessary party, and that West Central had failed to prosecute its action in a timely fashion. The trial court found that West Central's attempts at service, even by publication, had not been diligent. On the same day, a return of service on the Affidavit of Publication was filed. This appeal follows.
The trial court's judgment dismissing West Central's mechanic's lien enforcement action for failure to diligently prosecute is subject to review for an abuse of discretion:
State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988) (internal citations omitted).
In West Central's sole point on appeal, it claims that the trial court abused its discretion by dismissing its mechanic's lien for failure to diligently prosecute. West Central maintains that the findings included in the trial court's judgment are inconsistent with the docket entries and that the trial court erred by failing to include a finding in its judgment that West Central's delay in securing service on Reeves was "unnecessary" as required by section 429.170.3
Section 429.190 mandates that all parties to a construction contract giving rise to a mechanic's lien shall be made parties to an action to enforce the lien. Reeves was the general contractor responsible for construction of the McClures' residence and was the person with whom West Central contracted. Reeves was thus a necessary party to West Central's mechanic's lien enforcement action. In the absence of Reeves's proper joinder, the action could not proceed. Cent. Wholesale Distrib., a Div. of Topeka Lumber, Inc. v. Day, 672 S.W.2d 88, 96 (Mo.App. W.D.1984). West Central does not dispute this point.
Section 429.170 requires an action to enforce a mechanic's lien "shall be commenced within six months after filing the lien, and prosecuted without unnecessary delay." (Emphasis added.) "An action is commenced by the filing of a petition and the issuance of a summons." Hennis v. Tucker, 447 S.W.2d 580, 583 (Mo.App. 1969). West Central filed its statement of mechanic's lien on November 5, 2008, and filed its petition to enforce the mechanic's lien on November 17, 2008. Summons issued to all defendants two days later. Thus, West Central commenced its enforcement action within six months of filing its mechanic's lien as required by section 429.170.
Section 429.170 describes two obligations of a mechanic's lien claimant, however. Not only must the enforcement action be technically commenced within six months of filing of the lien, the enforcement action must be "prosecuted without unnecessary delay." When, as here, a necessary party to the proceedings, Reeves, had not been served, the enforcement action could not be further prosecuted. Thus, though the enforcement action was timely commenced, in a technical sense, a subsequent finding of timely commencement of a suit to enforce presumes that service on all necessary parties is thereafter diligently (and successfully) pursued. "Unless a plaintiff ... exercises due diligence in obtaining service of process the statute continues to run." Hennis, 447 S.W.2d at 583. The purpose of the relatively short period of limitations to commence enforcement of mechanic's liens is to achieve prompt determination of lien claims, which encumber private property. Id. at 584.
There is no dispute in this case that the six month "statute of limitations" within which West Central was obligated to commence its enforcement action (including diligent attempts to serve all necessary parties) expired on May 5, 2009. There is no dispute that Reeves, a necessary party, was not served by this date. Reeves was not served, in fact, until the Affidavit of Service by Publication was filed on August 20, 2009. This was nearly three months after the six month statute of limitations had expired and nine months after the enforcement action was commenced by the filing of West Central's petition and the...
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