Brentwood Glass Company, Inc. v. Pal's Glass Service, Inc., Clayco, Inc., Cornerstone VI, LLC, St. Louis County, National City Bank of the Midwest, N.A., Paul M. Macon, UMB Bank, N.A., and Victor Zarilli , 499 S.W.3d 296 ( 2016 )

Supreme Court of Missouri
en banc
BRENTWOOD GLASS COMPANY, INC., ) Opinion issued August 23, 2016
)
Appellant, )
)
v. ) No. SC94038
)
PAL’S GLASS SERVICE, INC., )
)
Defendant, )
)
CLAYCO, INC., CORNERSTONE VI, LLC, )
ST. LOUIS COUNTY, NATIONAL CITY BANK )
of the MIDWEST, N.A., PAUL M. MACON, )
UMB BANK, N.A., and VICTOR ZARILLI, )
)
Respondents. )
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
The Honorable Richard C. Bresnahan, Judge
PER CURIAM
Brentwood Glass Company, Inc., appeals the circuit court’s judgment in favor of
defendants on two claims: its mechanic’s lien claim for unpaid work on a construction
project and its claim that St. Louis County failed to require a public works construction
bond mandated by section 107.170.1 This Court granted transfer after opinion by the court
of appeals. Mo. Const. art. V, sec. 10.
1
All statutory references are to RSMo 2000, unless otherwise indicated.
The defendants were not entitled to summary judgment on Brentwood Glass’s
mechanic’s lien claim against Cornerstone VI, LLC. While a mechanic’s lien may not
attach to a building, land, or improvements owned by a public entity, Brentwood Glass
may bring its mechanic’s lien claim against Cornerstone’s leasehold interest. Additionally,
genuine issues of material fact exist regarding whether the lien notice was timely and
whether the lien statement provided a just and true account of the demand due. As to
Brentwood Glass’s bond claim against the County, judgment was proper because
Cornerstone was not a “contractor” under section 107.170.1(1). Furthermore, Brentwood
Glass did not name a party against whom it could recover on its bond claim.
Accordingly, judgment on Brentwood Glass’s mechanic’s lien claim is reversed as
to Cornerstone. In all other respects, the judgment is affirmed. The cause is remanded.
Factual and Procedural Background
The St. Louis County council adopted a resolution expressing its intent to issue
industrial revenue bonds to finance the County’s purchase and development of a property
known as Six City Place Drive. The County planned to develop the property for the
headquarters of Smurfit-Stone Container Enterprises, Inc. The resolution authorized two
companies, Smurfit-Stone and Cornerstone, to proceed with the “purchase, construction
and equipping” of the development, “including the entering into of contracts,” and
expressed the County’s intent to lease the property to Smurfit-Stone and Cornerstone.
The County ultimately passed an ordinance finalizing the comprehensive plan to
finance and develop the property. As part of the plan, the County was to issue industrial
revenue bonds to finance the project, upon which only Cornerstone could draw.
2
Cornerstone and the County also executed a “Lease Agreement.” The agreement provided
for more than a lease and, therefore, will be referred to as a “contract.”
The contract required Cornerstone to construct the project “on behalf of the County”
and authorized Cornerstone to act “as the agent of the County.” As the County’s agent, the
contract required Cornerstone to “promptly notify the County of the imposition of [a
mechanic’s] lien of which the Company is aware[.]” Cornerstone deeded the property to
St. Louis County; on the same day, the County issued the industrial revenue bonds to
finance the project.
Clayco, Inc., the general contractor for the project, subsequently entered into a
subcontract with Pal’s Glass to supply glass and glazing work. Pal’s Glass, in turn, entered
into a sub-sub-contract with Brentwood Glass for some of this work. Neither Cornerstone
nor any contractor working on the project obtained a bond that would comply with section
107.170.2.
Pal’s Glass initially agreed to pay Brentwood Glass a firm, fixed price for the labor
and material. Any changes to the sub-subcontract were required to be made by a change
order in writing by the subcontractor. Pal’s Glass and Brentwood Glass revised the contract
via change order once. Other change orders, however, were proposed but not executed.
Brentwood Glass performed extra work not reflected in the sub-subcontract price or a
change order.
Brentwood Glass was not paid for any work done after January 12, 2007, but
presented evidence that it continued to work on the project after this date. On July 27,
2007, Brentwood Glass served notice of its intent to file a mechanic’s lien. The notice was
3
served on Cornerstone, not the County. Having still not received payment, Brentwood
Glass filed its mechanic’s lien. The lien listed Cornerstone as the owner of the property
and claimed $1,061,464.08 in unpaid work.
Brentwood Glass then filed a nine-count petition against Pal’s Glass, Clayco,
Cornerstone, the County, UMB Bank, National City Bank of the Midwest, Paul M. Macon,
and Victor Zarilli. 2 In Count I, Brentwood Glass asserted a breach of contract claim against
Pal’s Glass. In count VIII, Brentwood Glass asserted a mechanic’s lien claim against all
defendants. In count IX, Brentwood Glass asserted an action against the County for
allegedly failing to require a payment bond pursuant to section 107.170. Pal’s Glass
admitted to owing $593,261.47 and consented to a judgment against it for that amount and
costs.
The defendants filed a motion for summary judgment on the mechanic’s lien claim.
The County also asserted it was entitled to summary judgment on the bond claim because
section 107.170 did not apply. The circuit court entered judgment in favor of the
defendants. Brentwood Glass appeals. 3
Standard of Review
On appeal, an appellate court reviews summary judgment de novo. ITT Commercial
Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
2
National City Bank of the Midwest was the bond lender, and UMB Bank was the holder
of the bonds. Paul M. Macon was the trustee of the deed of trust securing the bonds to
National City Bank, and Victor Zarilli was the trustee of the deed of trust securing the
bonds held by UMB Bank.
3
The circuit court granted judgment on all claims and causes of action. Brentwood Glass
does not appeal the circuit court’s judgment other than on counts VIII and IX.
4
Summary judgment is proper when the movant “show[s] a right to judgment flowing from
facts about which there is no genuine dispute.” Id. at 378. A genuine dispute exists when
“the issue, or dispute, [is] a real and substantial one – one consisting not merely of
conjecture, theory and possibilities.” Id. Evidence in the record is viewed “in the light
most favorable to the party against whom judgment was entered” with “the benefit of all
reasonable inferences from the record.” Id. at 376.
Analysis
I
A mechanic’s lien is an equitable remedy with “the purpose of giving security to
mechanics and material[men] for labor and materials furnished in improving the owner’s
property.” Bob DeGeorge Assocs., Inc. v. Hawthorn Bank, 377 S.W.3d 592, 598 (Mo.
banc 2012) (internal quotations omitted). As such, “the provisions of the mechanics’ lien
law should be interpreted so as to carry out the object ... [of] the security of the classes of
persons named in the act, upon its provisions being in good faith substantially complied
with on their part.” Putnam v. Ross, 46 Mo. 337, 338 (Mo. 1870). “As a general rule,
statutes relating to mechanic’s liens should be liberally construed in favor of lien
enforceability.” State ex rel. Springfield Underground, Inc. v. Sweeney, 102 S.W.3d 7, 9
(Mo. banc 2003).
The mechanic’s lien filed by Brentwood Glass does not specify whether it is seeking
a lien against the County’s freehold property interest or against Cornerstone’s leasehold
interest. But the mechanic’s lien statutes do not require such designation.
5
A
Under section 429.010, RSMo Supp. 2005, a mechanic’s lien may be brought
against an owner’s freehold interest in property:
[a]ny person who shall do or perform any work or labor ... or furnish any
material, fixtures, engine, boiler or machinery for any building, erection or
improvements upon land ... under or by virtue of any contract with the owner
or proprietor thereof, or his or her agent, trustee, contractor or subcontractor
... upon complying with the provisions of sections 429.010 to 429.340, shall
have for his or her work or labor done ... a lien upon such building, erection
or improvements, and upon the land belonging to such owner or proprietor
on which the same are situated[.]
Public policy, however, prohibits the attachment of a mechanic’s lien on the buildings,
land, or improvements owned by a public entity. Redbird Eng’g Sales, Inc. v. Bi-State
Dev. Agency of Missouri-Illinois Metro. Dist., 806 S.W.2d 695, 697 (Mo. App. 1991).
The County owned the property at the time that Brentwood Glass began working on
the building, and the contract between the County and Cornerstone provided that any
improvements installed in the building immediately became the property of the County.
As such, the County is protected by “the general rule that property owned by a county or
other municipal corporation, and used for public purposes cannot be sold on execution.”
Sec. State Bank v. Dent Cnty., 137 S.W.2d 960, 961 (Mo. 1940) (internal quotations
omitted). Brentwood Glass may not, therefore, perfect its mechanic’s lien against the
County.
B
Section 429.070.2 also establishes a right to a mechanic’s lien against a leasehold
interest:
6
Every mechanic, person or corporation who shall erect or construct any
building, plant, improvement, or erection, or who shall furnish any material,
... or other personal property upon either licensed or leased lots or lands under
or by virtue of any contract or account with the owner or proprietor of the
license or lease or with his or its agent, ... , upon complying with the
provisions of sections 429.010 to 429.340, shall have a lien upon such
building, plant, improvement, erection, and also upon such materials,
fixtures, ... and such other personal property and also upon the license or
lease on such lots or lands to the full extent of the number of acres or lots
held under such license or lease ... .
Although the County retained some control over Cornerstone’s leasehold interest, its
contract with Cornerstone authorized, under certain circumstances, Cornerstone to assign
its leasehold interest without the County’s prior written consent. Because the County
anticipated circumstances that would end its control over the leasehold, Brentwood Glass
was entitled to a mechanic’s lien against Cornerstone’s leasehold interest without violating
public policy concerns. Accordingly, Brentwood Glass may have the legal right to perfect
its mechanic’s lien against Cornerstone’s leasehold interest. 4
II
4
After Brentwood Glass filed this action to perfect its lien against Cornerstone’s leasehold
interest, but before judgment was entered below, Cornerstone acquired the County’s
reversionary interest (i.e., the fee) as it was required to do under the lease. Generally, a
mechanic’s lien on a leasehold interest may be enforced by selling the leasehold at
execution. Deatherage v. Sheidley, 50 Mo. App. 490, 496 (Mo. App. 1892); see also
section 429.070.4. The legal effect of the enforcement of the acquisition of the fee by
Cornerstone was not raised, briefed, or argued by any party on appeal and, therefore, is not
addressed by this Court. The Court does note, however, that section 8.5 of the contract
between the County and Cornerstone provided that Cornerstone would “not directly or
indirectly create, incur, assume or suffer to exist any lien on or with respect to the Project”
and section 11.2 provided that the County would convey the fee to Cornerstone subject to
“those liens and encumbrances resulting from the failure of [Cornerstone] to perform or
observe any of the agreement on its part contained in this [contract].”
7
To enforce a mechanic’s lien, a party must comply with the requirements of the
statute, including proper notice, timeliness, and an adequate lien statement. Brentwood
Glass contends that the circuit court erred in granting summary judgment because there
were genuine issues of material fact as to each of these requirements.
To determine whether genuine issues of material fact exist, a court may consider
evidence in “discovery, exhibits or affidavits that demonstrate specific facts showing there
is a genuine issue for trial.” Rule 74.04(c)(2). Courts do not weigh conflicting evidence
or make credibility determinations. Powel v. Chaminade Coll. Preparatory, Inc., 197
S.W.3d 576, 578 (Mo. banc 2006). Instead, summary judgment tests “simply for the
existence, not the extent” of genuine issues of material fact, viewing the evidence in the
light most favorable to the non-moving party. ITT Commercial Fin., 854 S.W.2d at 378.
“A factual question exists if evidentiary issues are actually contested, are subject to
conflicting interpretations, or if reasonable persons might differ as to their significance.”
Martin v. City of Washington, 848 S.W.2d 487, 492 (Mo. banc 1993).
In response to the defendants’ statement of uncontroverted material facts,
Brentwood Glass filed excerpts of depositions, affidavits, contracts, and other records.
Brentwood Glass maintains that this evidence establishes genuine issues of material fact.
A
Under section 429.100, a party must provide timely notice of its intent to file a
mechanic’s lien to the owner of the property or the owner’s agent as a condition precedent
to creating a valid lien:
8
Every person except the original contractor, who may wish to avail himself
of the benefit of the provisions of sections 429.010 to 429.340, shall give ten
days’ notice before the filing of the lien, as herein required, to the owner,
owners or agent, or either of them, that he holds a claim against such building
or improvement, setting forth the amount and from whom the same is due.
Brentwood Glass gave notice to Cornerstone and, therefore, fulfilled the statutory
requirement to give notice of its intent to file a mechanic’s lien as to Cornerstone’s
leasehold interest. Accordingly, the circuit court erred in granting judgment for lack of
proof of notice under section 429.100.
B
Section 429.080, RSMo Supp. 2005, requires that a lien be filed “within six months
after the indebtedness shall have accrued.” Indebtedness accrues “when the last labor is
performed or the last material is furnished under an agreement.” Manning Constr. Co.,
Inc. v. MCI Partners, LLC, 419 S.W.3d 134, 137-38 (Mo. App. 2013) (internal quotations
omitted). The date when labor was last performed is a question of fact. Id. at 138.
Brentwood Glass presents evidence that an employee installed bathroom mirrors
and caulking between February 5, 2007, and February 9, 2007; installed vertical covers
and exterior mullions on the storefront on February 13, 2007; and observed a water test to
ensure that the property’s windows were sealed properly on February 20, 2007. In contrast,
the defendants assert that “the only substantial evidence regarding when [Brentwood
Glass’s] work ended on the Project was January 31, 2007,” and “[a]ny other ‘work’
allegedly performed by [Brentwood Glass] was manufactured after-the-fact in an
unsuccessful effort to salvage [Brentwood Glass’s] untimely lien.”
9
The arguments made by defendants rely on evidence that contradicts or disputes the
evidence presented by Brentwood Glass. Viewing the evidence in the light most favorable
to Brentwood Glass, there is a genuine issue of material fact regarding the last day
Brentwood Glass worked on the project and whether the lien was timely filed.
C
Section 429.080, RSMo Supp. 2005, requires that a lien statement contain “a just
and true account of the demand due ... after all just credits have been given[.]” A lien
statement must substantially comply with the requirements of section 429.080. Springfield
Underground, 102 S.W.3d at 10. “The question of adequacy of [a] subcontractor’s lien
statement thus turns upon whether the statement provides detail and itemization sufficient
to enable the owner to investigate and determine the propriety of the lien claim.”
Commercial Openings, Inc. v. Mathews, 819 S.W.2d 347, 350 (Mo. banc 1991).
To arrive at its demand, Brentwood Glass’s lien statement contained an itemized
record of all labor and materials it claimed to have provided. Brentwood Glass then
deducted the total amount it was paid by Pal’s Glass and Clayco. By this calculation,
Brentwood Glass’s lien statement showed $1,061,464.08 in unpaid charges. The
defendants do not offer any evidence that the lien statement as presented was not sufficient
to investigate the propriety of the lien claims.
The inclusion of nonlienable items or honest mistakes in lienable items does not
automatically invalidate the lien statement. Sears, Roebuck & Co. v. Seven Palms Motor
Inn, Inc., 530 S.W.2d 695, 698-99 (Mo. banc 1975). The lien statement can still be just
and true so long as the items included are “the result of honest mistake or inadvertence
10
without intent to defraud[.]” 5 Id. at 699. When the merits of a claim rests on disputes “of
elusive facts such as intent, motive, fraud, duress, undue influence, mental capacity and the
like” then “summary judgment is seldom appropriate.” Crow v. Crawford & Co., 259
S.W.3d 104, 113 (Mo. App. 2008).
Brentwood Glass admits that the lien statement contained mistakes but contends
that its lien statement substantially complied with the statute because any inaccuracies were
honest mistakes made without an intent to defraud. In contrast, the defendants argue that
the lien statement was not a “just and true” account of the demand due because the lien
statement included: (a) work waived by lien waivers; (b) extra work not allowed by the
sub-subcontract or reflected in a change order; (c) non-contract hourly labor-rates; and
(d) payments Clayco made to Brentwood Glass’s subcontractors and material suppliers.
Although the defendants list potentially nonlienable items claimed in Brentwood Glass’s
lien statement, the only evidence they provide that Brentwood Glass included this work
with an intent to defraud is that the items may not have been lienable as a matter of law.
In contrast, Brentwood Glass offers evidence that it included the items by honest
mistake or by inadvertence without an intent to defraud. For example, Brentwood Glass
presented evidence that Pal’s Glass expressly ordered extra work and directed Brentwood
Glass not to submit a demand for payment of the extra work until all charges for the extra
5
The defendants contend that the lien claimant has the burden to prove that it substantially
complied with the statute and that any nonlienable charges were included due to an honest
mistake. To defend a motion for summary judgment, Brentwood Glass must show only
that evidence exists of facts that are “actually contested, are subject to conflicting
interpretations, or if reasonable persons might differ as to their significance.” Martin, 848
S.W.2d at 492.
11
work could be submitted at once. Brentwood Glass also asserts that the non-contract $70
labor rate included in the statement was the reasonable value of its labor, in compliance
with the mechanics’ lien standard provided in Dave Kolb Grading, Inc. v. Lieberman
Corp., 837 S.W.2d 924, 931 (Mo. App. 1992), which states that “[t]he lien, therefore, is
not necessarily for the contract price but is only for the reasonable value of the labor and
materials furnished.” Additionally, although Brentwood Glass admits it cannot recover the
payments Clayco paid to Brentwood Glass’s subcontractors and material suppliers,
testimony provided that because Brentwood Glass did not know Clayco paid these charges,
these charges were included by honest mistake.
Viewed in the light most favorable to the non-movant, Brentwood Glass has
presented evidence that nonlienable items it included in its lien statement could have been
included by honest mistake or inadvertence without intent to defraud. As such, a genuine
issue of material fact exists regarding whether the lien statement provided a just and true
account in compliance with section 429.080, RSMo Supp. 2005.
In light of the record, the circuit court erred in granting judgment on Brentwood
Glass’s mechanic’s lien claim. Judgment on Brentwood Glass’s mechanic’s lien claim is
affirmed as against the County, but reversed as against Cornerstone.
III
Brentwood Glass additionally argues that it was error to grant judgment as to its
public bond claim against the County. It was not.
12
A
Section 107.170.1 requires the bond of a “contractor” that “provides construction
services under contract to a public entity,” not a party that merely arranges for such services
to be provided by others. (emphasis added). The legislature’s careful selection of words is
presumed meaningful. Hyde Park Hous. P’ship v. Dir. of Revenue, 850 S.W.2d 82, 84
(Mo. banc 1993). Cornerstone did not “provide construction services” under its contract
with the County and is, therefore, not a “contractor” under section 107.170.1.
B
Even if section 107.170 had required a bond in this case, Brentwood Glass’s claim
under that statute would still fail because Brentwood Glass did not name a party against
whom it could recover. The court of appeals previously has held certain individual officials
– but not a public entity itself – liable for failing to require contractors to furnish a bond
under the statute. See, e.g., Energy Masters Corp. v. Fulson, 839 S.W.2d 665, 670 (Mo.
App. 1992). Brentwood Glass sued only the County, and not any individual public official.
The decisive fact is that the County – as a political subdivision – is immune from suit under
the doctrine of sovereign immunity. State ex rel. Missouri Dep’t of Agric. v. McHenry,
687 S.W.2d 178, 182 n.5 (Mo. banc 1985); section 537.600.
Unless expressly waived by statute, sovereign immunity bars suit against the
government or its subdivisions for the actions of their employees. State ex rel. Div. of
Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 615 (Mo. banc 2002). No such
waiver exists in this statute. See section 107.170. Accordingly, even if Brentwood Glass
13
had stated (or is allowed to state on remand) a valid claim under the bond statute, it would
be unable to recover from the party against whom it made that claim.
The provisions in the judgment granting summary judgment on Brentwood Glass’s
public works construction bond claim under section 107.170.1(1) are affirmed.
Conclusion
The judgment is affirmed in part and reversed in part. Judgment on Brentwood
Glass’s mechanic’s lien claim is reversed as to its claim against Cornerstone’s leasehold
interest. In all other respects, the judgment is affirmed. The cause is remanded.
Fischer and Wilson, JJ., concur; Breckenridge, C.J.,
concurs in part and dissents in part in separate opinion
filed; Stith, J., concurs in opinion of Breckenridge, C.J.;
Draper, J., concurs in part and dissents in part in separate
opinion filed; Teitelman and Russell, JJ., concur in opinion
of Draper, J.
14
SUPREME COURT OF MISSOURI
en banc
BRENTWOOD GLASS COMPANY, INC., )
)
Appellant, )
)
v. ) No. SC94038
)
PAL’S GLASS SERVICE, INC., )
)
Defendant, )
)
CLAYCO, INC., CORNERSTONE VI, LLC, )
ST. LOUIS COUNTY, NATIONAL CITY BANK )
of the MIDWEST, N.A., PAUL M. MACON, )
UMB BANK, N.A., and VICTOR ZARILLI, )
)
Respondents. )
Opinion Concurring in Part and Dissenting in Part
I concur in the holdings in sections I and II of the per curiam opinion. I respectfully
dissent from its holding in section III that summary judgment against Brentwood Glass on
its public bond claim should be affirmed because it is not entitled to a public bond claim
against the county as a matter of law and because Brentwood Glass failed to name a party
against whom it could recover. I would hold, instead, that the circuit court erred in entering
summary judgment against Brentwood Glass on its public bond claim. I would find that
under the terms of the contract between the county and Cornerstone, Cornerstone was a
contractor providing “construction services” to the county, and, therefore, that its contract
was subject to the requirements of section 107.170.2. 1 Additionally, I would find that
Brentwood Glass should be given the opportunity, on remand, to request leave to amend
its petition to name individual officials as defendants.
Section 107.170 imposes a duty on public officials to require contractors to furnish
a bond “to ensure payment to those who supply labor or materials on contracts for public
works and so prevent unjust enrichment.” Energy Masters Corp. v. Fulson, 839 S.W.2d
665, 668 (Mo. App. 1992). Section 107.170.2 reads:
It is hereby made the duty of all public entities in this state, in making
contracts for public works, the cost of which is estimated to exceed twenty-
five thousand dollars, to be performed for the public entity, to require every
contractor for such work to furnish to the public entity, a bond with good and
sufficient sureties, in an amount fixed by the public entity, and such bond,
among other conditions, shall be conditioned for the payment of any and all
materials, incorporated, consumed or used in connection with the
construction of such work, and all insurance premiums, both for
compensation, and for all other kinds of insurance, said work, and for all
labor performed in such work whether by subcontractor or otherwise. 2
A contract falls within the ambit of section 107.170.2 if: (1) a public entity
(2) enters into a contract for public works (3) for a cost in excess of $25,000. Section
107.170.1(2) expressly defines a county as a “public entity,” and the county’s contract with
Cornerstone for the construction of Six City Place was to cost more than $25,000.
Additionally, section 107.170.1(3) defines “public works” as “the erection, construction,
alteration, repair or improvement of any building, road, street, public utility or other public
facility owned by the public entity.” Because the contract between the county and
1
All statutory references are to RSMo 2000 unless further indicated.
2
Section 107.170 was amended in 2014 to increase the cost of the contract for public
works to $50,000. The lower limit of $25,000 was in effect during the relevant time period
in this case.
2
Cornerstone provided for Cornerstone to construct a building on property owned by the
county, the contract between the county and Cornerstone falls under section 107.170.2.
When a contract falls within the ambit of section 107.170.2, the public entity must:
(1) require every contractor for such work to furnish a bond (2) in an amount fixed by the
public entity (3) to secure payment for materials and labor performed under the contract
for public works (4) whether provided by a subcontractor or otherwise. The per curiam
opinion finds that section 107.170.2 is not applicable to the contract between the county
and Cornerstone because Cornerstone was not a “contractor.” But section 107.170.2
references “every contractor,” and the term “contractor” is broadly defined by section
107.170.1(1) to be “a person or business entity who provides construction services under
contract to a public entity.”
While “construction services” is not defined in section 107.170 or in related statutes,
“[a]bsent a statutory definition, the primary rule of statutory interpretation is to give effect
to legislative intent as reflected in the plain language of the statute.” Fenix Constr. Co. v.
Dir. of Revenue, 449 S.W.3d 778, 780 (Mo. banc 2014) (internal quotations omitted). The
plain and ordinary meaning of words used in a statute can be derived from the dictionary.
Circuit City Stores, Inc. v. Dir. of Revenue, 438 S.W.3d 397, 400 (Mo. banc 2014).
The dictionary defines “construction” as “something built or erected” or “the act of
putting parts together to form a complete integrated object: FABRICATION … during the
[construction] of the bridge.” WEBSTER’S THIRD NEW INT’L DICTIONARY UNABRIDGED 489
(1993). Similarly, “construct” is “to form, make or create by combining parts or elements:
BUILD, FABRICATE . . . [construct]ing the new freeway.” Id. “Service” is defined as
3
“the performance of work commanded or paid for by another.” Id. at 2077. Considering
these dictionary definitions together, the plain meaning of “construction services” is
building or erecting something that has been commanded or paid for by another.
The contract between Cornerstone and the county expressly required Cornerstone
to construct a new office building “as an agent of the County” and “on behalf of the
County.” As such, Cornerstone was providing work for another. By the express terms of
its contract with the county, Cornerstone had the obligation to “build or erect” a completed
office building. Cornerstone was, therefore, a business entity that was required to provide
construction services to the county, a “public entity.” As such, I would hold that
Cornerstone is a “contractor” as defined by section 107.170.1 and that the circuit court’s
judgment against Brentwood Glass on its public bond claim should be reversed and the
cause remanded.
Additionally, although I concur with the per curiam’s finding that Brentwood Glass
has sued the wrong party by suing the county rather than an “official, board, commission
or agency of this state or any county,” as required by section 107.170.1(2), I dissent from
the per curiam opinion’s holding that this error is fatal to Brentwood Glass’ public bond
claim. Because this issue was raised sua sponte by this Court, Brentwood Glass has not
had an opportunity to seek leave to amend its petition to include different parties. See Rule
55.33(a). I would hold, therefore, that Brentwood Glass should be given the opportunity,
on remand, to request leave to file an amended petition naming different parties. Hargis v.
JLB Corp., 357 S.W.3d 574, 587 n.12 (Mo. banc 2011); see also State ex rel. Kansas City
S. Ry. Co. v. Nixon, 282 S.W.3d 363, 366 (Mo. banc 2009).
4
For these reasons, I would reverse the circuit court’s judgment against Brentwood
Glass on its public bond claim, as well as its mechanic’s lien claim against Cornerstone,
and remand the cause.
___________________________________
PATRICIA BRECKENRIDGE, CHIEF JUSTICE
5
SUPREME COURT OF MISSOURI
en banc
BRENTWOOD GLASS COMPANY, INC., )
)
Appellant, )
)
v. ) No. SC94038
)
PAL’S GLASS SERVICE, INC., )
)
Defendant, )
)
CLAYCO, INC., CORNERSTONE VI, LLC, )
ST. LOUIS COUNTY, NATIONAL CITY BANK )
of the MIDWEST, N.A., PAUL M. MACON, )
UMB BANK, N.A., and VICTOR ZARILLI, )
)
Respondents. )
OPINION CONCURRING IN PART AND DISSENTING IN PART
I concur with the holdings in sections I-A, II-A and -B, and III of the per curiam
opinion. I respectfully dissent from the holding in I-B because, while Brentwood Glass
may have had the legal right to perfect its mechanic’s lien against Cornerstone’s leasehold
interest, I believe its failure to comply with section 429.080, RSMo Supp. 2005, 1 precludes
Brentwood Glass from doing so.
I further dissent from the per curiam opinion’s holding in section II-C, which
reverses the circuit court’s entry of summary judgment in the defendants’ favor, finding
1
All statutory references are to RSMo 2005.
there are genuine issues of material fact regarding the validity of Brentwood Glass’s
mechanic’s lien. I do not believe Brentwood Glass demonstrated substantial compliance
with section 429.080, in that its lien statement did not contain a “just and true account” of
the demand due, thus, vitiating the lien. Accordingly, the defendants were entitled to
judgment as a matter of law on this claim. 2
A party seeking to enforce a mechanic’s lien bears the burden of proving substantial
compliance with the essential elements of the applicable statutes. Winters Excavating, Inc.
v. Wildwood Dev., L.L.C., 341 S.W.3d 785, 790 (Mo. App. S.D. 2011). One of the essential
elements to be proven is that the lien statement contains “a just and true account of the
demand due … after all just credits have been given[.]” Section 429.080. “It is generally
recognized that a lien statement may be regarded as ‘just and true,’ so as not to vitiate the
entire lien, if the inclusion of a nonlienable item is the result of honest mistake or
inadvertence without intent to defraud and if the nonlienable can be separated from the
lienable items.” Sears, Roebuck & Co. v. Seven Palms Motor Inn, Inc., 530 S.W.2d 695,
698-99 (Mo. banc 1975). “Arithmetic errors, errors of computation, inadvertence, or
mistake in the preparation of the account, where there is no showing of the lienor’s bad
faith, should not defeat the lien.” Missouri Land Dev. Specialties, LLC v. Concord
Excavating Co., 269 S.W.3d 489, 498 (Mo. App. E.D. 2008). In this case, uncontested
evidence demonstrates that Brentwood Glass included nonlienable items in its lien
2
I agree with the per curiam opinion’s assertion that Brentwood Glass cannot maintain a
mechanic’s lien action against the county. Accordingly, the county is entitled to judgment
as a matter of law on this claim.
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statement that cannot be excused as matters of inadvertence, computation errors, or honest
mistakes.
First, Brentwood Glass demanded payment in excess of $1 million above its contract
price for “extra” work it contends it did on the project. Brentwood Glass concedes its
contract with Pal’s Glass required that any changes in the scope of the work that affected
the price to be paid had to be documented by a change order. Brentwood Glass admits
these change orders were not executed, the “extra” work was beyond the scope of the
contract, and clearly the “extra” work affected the contract price. Thus, Brentwood Glass
included items that were not authorized by its contract.
Second, in addition to billing for $1 million worth of work not approved by any
change order, Brentwood Glass’ lien statement billed its work at $70.00 per hour, despite
the fact it contracted with Pal’s Glass to perform the work at $62.00 per hour. Brentwood
Glass admits that it inflated the hourly rate, explaining it was entitled to the reasonable
value of the labor and material it furnished. Although Brentwood Glass concedes the
contractual labor rate constitutes evidence of the reasonable value of the work, it claims
this rate is not conclusive but does not cite any caselaw to support this proposition.
Alternatively, if the contractual rate should apply, Brentwood Glass posits that asking for
an increase was an “honest mistake.” Brentwood Glass did not make an honest mistake by
deliberately increasing its hourly rate as reported in the lien statement in order to
compensate itself based on a new determination of the reasonableness of its work.
Finally, Brentwood Glass failed to credit Clayco for the $47,433.92 payment Clayco
made to Brentwood Glass’s unpaid subcontractors and material suppliers. Brentwood
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Glass explained that it was unaware of this payment; therefore, it was yet another “honest
mistake” to include this amount in its lien statement. This explanation is not persuasive.
Even setting aside the issue of how to characterize the legal effect of the partial lien waivers
Brentwood Glass executed throughout this project, the last lien waiver Brentwood Glass
executed averred, “We also hereby acknowledge that all of our material suppliers and
subcontractors have been paid in full by us and cannot claim or right to lien on the above
stated project.” Even if Brentwood Glass was unaware of Clayco’s payment so that it was
unable to give proper credit, based on its representation in the last executed partial lien
waiver, none of its subcontractors or material suppliers should have been due any payment
that would be entitled to a credit. Hence, the inclusion of any monies due to subcontractors
and material suppliers was deliberate.
“[W]hen nonlienable items are included in a lien statement deliberately, knowingly,
and intentionally,” the account filed is not considered “just and true.” Putnam v.
Heathman, 367 S.W.2d 823, 829 (Mo. App. W.D. 1963). “[A]n unjust and untrue account,
knowingly made, forms no basis for a lien, and no foundation for a cause of action to
enforce it, but vitiates the entire right of lien.” Id. at 828 (quoting Gill v. Harris, 24 S.W.2d
673, 677 (Mo. App. W.D. 1930)). Undisputed evidence demonstrates Brentwood Glass
deliberately, knowingly, and intentionally included nonlienable items in its lien statement
that were not a result of computation error, inadvertence or honest mistake. Thus,
Brentwood Glass failed to carry its burden of proving it substantially complied with the
applicable mechanic’s lien statutes. I would affirm the circuit court’s entry of summary
judgment in defendants’ favor on this claim and on all other claims.
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______________________________
GEORGE W. DRAPER III, JUDGE
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