Westerhold v. Mullenix Corp.

• Decision Date: 29 August 1989
• Docket Number: No. 55225,55225
• Citation: Westerhold v. Mullenix Corp., 777 S.W.2d 257 (Mo. App. 1989)
• Parties: Jeffrey A. WESTERHOLD, et al., Plaintiffs-Appellants Cross-Respondents, v. MULLENIX CORPORATION, et al., Defendants-Respondents Cross-Appellants.
• Court: Missouri Court of Appeals

Page 257

777 S.W.2d 257

Jeffrey A. WESTERHOLD, et al., Plaintiffs-Appellants Cross-Respondents, v. MULLENIX CORPORATION, et al., Defendants-Respondents Cross-Appellants.

No. 55225.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 29, 1989.

Jack F. Allen, Clayton, for Westerhold.

James L. Durham, Chester A. Love, Jr., David B. Lacks, Clayton, for Mullenix Corp.

SATZ, Judge.

This is a consolidated appeal from a final judgment in a case in which plaintiffs sought money damages and the imposition of mechanic's liens. Plaintiffs are the statutory trustees of Dimarco Management, Inc. (Dimarco), a Missouri corporation whose charter has been forfeited. Dimarco was the subcontractor on the construction in question. Defendants are Ivan L. Mullenix (Mr. Mullenix), the owner of the properties in question; Mullenix Corporation, the general contractor; and the trustee and cestui que trust under a deed of trust on the properties.

This action stems from two written construction contracts between Dimarco and Mullenix Corp. Plaintiffs, however, did not sue Mullenix Corp. on these contracts. Plaintiffs brought suit in a two Count petition. In Count I, plaintiffs sued Mullenix Corp. for money damages for work, labor, and materials furnished by Dimarco at the Boardwalk Retail Center (Boardwalk) and for an imposition of a mechanic's lien on this property. In Count II, plaintiffs sued Mullenix Corp. for damages for work, labor, and materials furnished by Dimarco at Building # 24 of the Briarcliff Condominiums (Briarcliff) and for an imposition of a mechanic's lien on this property. ¹ Defendant Mullenix Corp. filed two counterclaims for money damages against plaintiffs for breach by Dimarco of each of the two construction contracts, one contract for construction work on Boardwalk, the other for construction work on Briarcliff.

At the close of all the evidence, the court granted Mullenix Corp.'s motion for directed verdict on plaintiffs' request for imposition of a mechanic's lien on Boardwalk but denied a similar motion on plaintiffs' request for a mechanic's lien on Briarcliff. Mullenix Corp. then withdrew its counterclaim against plaintiffs for breach of the Boardwalk contract.

Subsequently, the court instructed the jury on plaintiffs' claims and Mullenix Corp.'s remaining counterclaim for damages but gave no instruction on the issue of a lien on Briarcliff. The jury returned verdicts for damages in favor of plaintiffs on each of their two claims and returned a verdict against Mullenix on its counterclaim. The trial court entered judgment in favor of plaintiffs for the money damages but did not impose a mechanic's lien on either Boardwalk or Briarcliff. Mullenix Corp. appeals, challenging the sufficiency of the evidence as well as the plaintiffs' verdict-directing instructions. Plaintiffs appeal, challenging the court's failure to impose a mechanic's lien on each of the two properties in question. We affirm the money judgment, and remand with directions to impose the lien on Briarcliff as requested by plaintiffs.

Facts

Dimarco and Mullenix Corp. entered into the Boardwalk contract on July 17, 1984. Under this contract, Dimarco promised to do carpentry and metal framing work for a total contract price of $72,900. Mullenix Corp. agreed to pay Dimarco each month according to the percentage of the contract work Dimarco completed each month. Invoices that Dimarco submitted on the 30th day of the month would be paid on the 25th day of the following month.

A dispute arose between the parties over amounts due on the December, 1984 invoice. They resolved this dispute by Mullenix Corp. agreeing to make three payments on the invoice. The third payment, in the amount of $11,520, was not made. Mullenix also refused to make any payment on the January, 1985 invoice in the amount of $5,015. On February 25, 1985, Dimarco stopped work because of Mullenix Corp.'s failure to pay these invoices. Dimarco submitted another invoice on February 25, 1985, for $6,870, which Mullenix Corp. did not pay. The total of all unpaid invoices for Boardwalk is $23,405, the amount plaintiffs sought in Count I of their petition.

Dimarco and Mullenix Corp. entered into the Briarcliff contract on October 2, 1984. This contract required Dimarco to do carpentry work for a total price of $42,000, and the payment schedule required Dimarco to submit its invoices by the 25th day of the month for payment on the 25th day of the following month. The contract provided that any modification must be in writing and provided that Mullenix Corp. need not pay any claim for extra work that Dimarco did without first obtaining written authorization.

A dispute arose under the Briarcliff contract over the payment of invoices, some containing charges for "extra work". According to Harold Westerhold (Westerhold), Dimarco's de facto head, Mullenix Corp.'s project manager, Valerie Edwards, gave verbal authorization for "extra work" and orally agreed to make payments on the invoices five days after Dimarco submitted them. The invoice submitted by Dimarco on January 19, 1985, for $3,150, included charges for "extra work". The invoice was not paid by January 25, 1985, and Dimarco stopped work. On January 31, 1985, Dimarco submitted a final invoice for $6,294.50. The January 31 invoice was the result of Dimarco "calculat[ing] all of the extra work and [bringing] it up to date." The January 31 invoice did not include the charges for "extra work" from the January 19 invoice. From the record, it is unclear whether the final invoice includes the "extra work" from the November, 1984 or December, 1984 invoices. The total of the two unpaid invoices is $9,444.50. That is the sum sought by plaintiffs under Count II of their petition.

After trial, the court entered a judgment on the jury verdicts for the plaintiffs, on Count I for $23,405 and on Count II for $9,444.50. No liens were imposed. Subsequently, plaintiffs moved to amend the judgment seeking prejudgment interest and the imposition of the mechanic's liens. The court granted the request for prejudgment interest but imposed no liens. The court then denied Mullenix Corp.'s post trial motion. These appeals followed.

I. Mullenix Corp.'s Appeal

1. Plaintiffs' Verdict Directing Instructions

Mullenix Corp. challenges plaintiffs' verdict directing instructions. Mullenix Corp. contends the "jury was instructed on an action on account when plaintiffs were suing on a lump sum contract or in quantum meruit", and, therefore, Mullenix Corp. contends it was prejudiced by the submission to the jury of a theory different from the theory pleaded and tried. We view the record differently than Mullenix Corp. does.

There is no dispute that the initial legal relations between Dimarco and Mullenix Corp. were created by two written construction contracts, under each of which Mullenix Corp. was obligated to pay Dimarco the contract price in installments. Nor is there any dispute that Mullenix Corp. refused to pay certain of these installments. If Mullenix Corp.'s refusal to pay was a substantial breach of contract, then Dimarco had the privilege to treat the contract as terminated and had the right to sue Mullenix Corp. either for breach of contract and the unpaid contract price, or for quantum meruit and the reasonable value of work, labor and materials actually rendered and used in the performance of the contract before the breach. See, e.g. Statler Mfg., Inc. v. Brown, 691 S.W.2d 445, 448-49 (Mo.App.1985).

Plaintiffs, however, did not exercise either of these rights. They, apparently, chose to sue Mullenix Corp. on an account. Thus, in Count I of their petition, plaintiffs pleaded Mullenix Corp. is "indebted" to Dimarco for "work, labor and materials furnished by" Dimarco "under a lump sum contract (which was not fully completed) with and at the special instance and request of Mullenix Corp."; Mr. Mullenix was the owner of the property in question "at and during the accrual of plaintiffs' account"; all the "work, labor and materials furnished by Dimarco under the contract with Mullenix Corp. are ... set out in detail and ... itemized in the account filed ... [and] set forth" in the exhibit attached to the petition; and Dimarco "commenced the furnishing of ... work, labor and materials on June 27, 1984 and continuously thereafter until March 3, 1985," and on the "last mentioned date ... the said account then accrued and became due; the same was furnished under one continuous arrangement; the said account constitutes one continuous running and connected account ... all ... furnished ... [at] ... the instructions and directions of defendant Mullenix Corp." ² (LF 85-88) Consistent with this pleading, plaintiffs submitted their case to the jury by using MAI 26.03, the pattern instruction for an "Action on Account": ³

Plaintiffs' Instruction No. 7

Your claim must be for plaintiffs on their claim for material and labor on the Boardwalk Retail Center if you believe:

First, at the request of defendant Mullenix Corporation, plaintiffs' predecessor, Dimarco Management, Inc., doing business as Dimarco Contractors, or plaintiffs, furnished to defendant Mullenix Corporation certain materials and labor on the Boardwalk Retail Center job between August 20, 1984 and March 3, 1985, and

Second, Dimarco and plaintiffs charged a total of $63,500 for such materials and labor, of which only $40,095 was paid, and

Third, the charges were reasonable.

None of the defendants ever questioned the propriety of plaintiffs' pleadings; for example, no defendant filed a motion for summary judgment; nor, from the record, does it appear any defendant made any specific objection to or raised any question about plaintiffs' pleaded theory during the course of trial. To be sure, defendants filed motions for a directed verdict "at the close of plaintiffs evidence" and "at the close of all the evidence." But these motions merely make the general and vague allegation that ...