A & M Building, Inc. v. Wiles

859 S.W.2d 183, 1993 Mo. App. LEXIS 1203, 1993 WL 293010
CourtMissouri Court of Appeals
DecidedAugust 4, 1993
DocketNo. 18069
StatusPublished
Cited by5 cases

This text of 859 S.W.2d 183 (A & M Building, Inc. v. Wiles) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A & M Building, Inc. v. Wiles, 859 S.W.2d 183, 1993 Mo. App. LEXIS 1203, 1993 WL 293010 (Mo. Ct. App. 1993).

Opinion

GARRISON, Judge.

This appeal is from the entry of summary judgments in a ease involving claims for materialman’s liens. A & M (Plaintiff) filed suit against Wiles (Contractor), Havin (another materialman and lien claimant) and the Gutermuths (Landowners) to enforce a materialman’s lien. Havin then filed an answer and cross-claim against Landowners and Wiles to enforce a materi-alman’s lien. Another lien claimant (Spin-dler) intervened and also filed a cross-petition by which it sought a judgment against Wiles and a materialman's lien on the subject property.1

The claims arose from construction of a new home by Landowners. The structure was located next to, but was separate from, an existing house on Landowners’ acreage. Wiles contracted to build the house and purchased materials from Plaintiff, Havin and Spindler. Money was paid by the Landowners to Wiles but apparently none was paid to the lien claimants, leading them to file the instant claims.

Landowners raise three points on this appeal: (1) the trial court erred in designating the summary judgments final for purposes of appeal; (2) the trial court erred in granting the summary judgments in favor of Plaintiff and Havin because there were genuine issues of fact remaining for determination; and (3) Plaintiff and Havin were not entitled to summary judgments because their claims were barred for failure to comply with § 429.013.2 For the reasons stated in this opinion, we affirm.

In their first point, Landowners contend the trial court abused its discretion in declaring the summary judgments final for the purposes of appeal. Rule 74.01(b)3 provides that in cases involving multiple claims or parties,

... the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason" for delay.

In the instant case, the court entered summary judgments for Plaintiff and Havin on their claims for materialman’s liens and for Landowners on the lien claim of Spindler. On February 5, 1992, Plaintiff filed a motion to declare the summary judgments final pursuant to Rule 74.01(b). On February 20, 1992, the motion was sustained by the trial court’s order which stated:

Upon consideration of the record as a whole, the evidence adduced and the arguments of Counsel, the Court finds and declares that the Judgment heretofore entered by this Court on June 10, 1991, in favor of A & M Building, Inc., and in favor of William G. Havin ... is a final and appealable judgment, and further finds and declares that there is no just reason for delay in the entry of this Order. The Court further finds and declares that the Judgment heretofore entered on September 5, 1991, in favor of Walter Gutermuth and Lucy Gutermuth against Defendant, M. Spindler Carpet and Supply, Inc., is a final and appealable Judgment, and that there is no just reason for delay in the entry of this Order.

The summary judgments referred to in the order disposed of all claims for mechanic’s or materialman’s liens. The remaining claims sought only money judgments and did not involve either Plaintiff or Havin.

Landowners argue that the order in issue here did not recite the reasons for the court’s finding that there was “no just reason for delay” and, therefore, it constituted a summary declaration not supported by the record.

The decision about whether and when to sustain a Rule 74.01(b) motion is [186]*186discretionary with the trial court. Eyberg v. Shah, 773 S.W.2d 887, 894-95 (Mo.App.1989). Some of the factors the trial court may consider include whether the claims remaining to be adjudicated are separable from those included in the Rule 74.01(b) order and whether the same issues would arise on appeal from the claims still pending. Eyberg, 773 S.W.2d at 895. In ruling such motions, discretion is to be exercised in the interest of sound judicial administration. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1, 12 (1980).

Landowners cite the case of Assemblies of God v. Hendricks, 807 S.W.2d 141, 145 (Mo.App.1991), for the proposition that the order sustaining a Rule 74.01(b) motion requires something more than a summary declaration that there is no just reason for delay. The Hendricks opinion does state that general proposition. It is noteworthy, however, that the appellate court in Hendricks looked beyond the wording of the individual order and examined the record to determine if the trial court had abused its discretion. See also Eyberg v. Shah, supra.

An appellate court should disturb the trial court’s determination only if it can be said that its conclusion was clearly unreasonable. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. at 10, 100 S.Ct. at 1466, 64 L.Ed.2d at 13; Eyberg v. Shah, 773 S.W.2d at 896. Our review of the record here does not lead us to the conclusion that the trial court’s ruling was clearly unreasonable. The remaining issues and claims are separable from those which are the subject of the instant order, and it does not appear likely that a later appeal with reference to the remaining issues would require an appellate court to consider the same issues twice. Landowners’ argument that the order is without independent evi-dentiary support and that it has forced them to file the present appeal, even though later appeals are likely when the remaining issues are litigated, does not require a different result. See Eyberg v. Shah, 773 S.W.2d at 896.

As said in Curtiss-Wright Corp. v. General Electric Co., 446 U.S. at 12-13, 100 S.Ct. at 1467, 64 L.Ed.2d at 14:

The question in eases such as this is likely to be close, but the task of weighing and balancing the contending factors is peculiarly one for the trial judge, who can explore all the facets of the case. As we have noted, that assessment merits substantial deference on review. Here, the District Court’s assessment of the equities between the parties was based on an intimate knowledge of the case and is a reasonable one. The District Court having found no other reason justifying delay, we conclude that it did not abuse its discretion in granting petitioner’s motion for certification under Rule 54(b).

Our review likewise fails to reveal an abuse of discretion and this point is denied.

In their second point, Landowners argue that summary judgment was inappropriate because genuine issues of fact remained for determination. The remaining issues identified by Landowners were whether all of the materials furnished to their contractor were actually used in the construction of their residence and the amount to which the lien claimants were entitled.

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Bluebook (online)
859 S.W.2d 183, 1993 Mo. App. LEXIS 1203, 1993 WL 293010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-m-building-inc-v-wiles-moctapp-1993.