Concrete Co. of the Ozarks v. Catamount Ridge North, L.L.C.

63 S.W.3d 260, 2001 Mo. App. LEXIS 2113, 2001 WL 1360191
CourtMissouri Court of Appeals
DecidedNovember 7, 2001
DocketNo. 23533
StatusPublished
Cited by1 cases

This text of 63 S.W.3d 260 (Concrete Co. of the Ozarks v. Catamount Ridge North, L.L.C.) 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
Concrete Co. of the Ozarks v. Catamount Ridge North, L.L.C., 63 S.W.3d 260, 2001 Mo. App. LEXIS 2113, 2001 WL 1360191 (Mo. Ct. App. 2001).

Opinion

NANCY STEFFEN RAHMEYER, Judge.

Concrete Company of the Ozarks (“Con-co”) brought suit against twenty-two defendants for enforcement of a mechanics’ hen pursuant to Chapter 429 of the Revised Statutes of Missouri. The defendants are the developer, general contractor, lot owners, financial institutions, other hen claimants and any other parties with [262]*262an interest in the real property known as Catamount Ridge North located in Stone County, Missouri.1 Conco brought a nine-count suit, but this appeal is only concerned with Count I, which purports to be the request for enforcement of one lien covering twenty separate lots.

Respondents Kenneth and JoAnne Du-toit, Bank of Kimberling City, Charles B. Cowherd, Trustee and Joseph P. Gaunt, Trustee (collectively, “Respondents”),2 filed motions to dismiss Count I of Appellant’s Amended Petition alleging that § 429.0403 is the only section of Chapter 429 that allows for the filing of one lien over several lots. In their pleadings, Respondents contended that Conco did not satisfy the requirements under § 429.040 in that Conco did not file the hen against contiguous lots or under one general contract. After oral argument and the filing of various amended pleadings and affidavits, the trial court dismissed Count I of the petition as to the Respondents for the reasons that the lots were not contiguous and there was not one general contract.4 Conco brought this appeal. We affirm.5

Conco and the defendants agree that our standard of review is determined based on the granting of a motion to dismiss; however, both parties also agree that the court granted the dismissal after a review of the stipulated plat and multiple invoices attached as exhibits to the amended petition. In reviewing the circuit court’s dismissal, while treating the facts averred as true and construing all aver-ments liberally and favorably to Conco, we determine if the facts pled and the inferences reasonably drawn therefrom state any ground for relief. Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 834 (Mo. banc 1985). The trial court was bound to assume the facts pled by Conco were true, but could find that the facts were insufficient as a matter of law. State ex rel. Nixon v. American Tobacco Company, 34 S.W.3d 122, 134 (Mo. banc 2000). When the parties introduce evidence beyond that contained in the petition, a motion to dismiss is converted to a motion for summary judgment and the parties are treated as if they know that the motion was so converted. Sale v. Slitz, 998 S.W.2d 159, 162 (Mo.App. S.D.1999).

Conco does not contest the ruling of the trial court as violating Rule 55.27(a).6 The relevant portion of Rule 55.27(a) reads:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04. All parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.

[263]*263Pursuant to Rule 55.27(a), we shall treat the ruling of the trial court as a granting of summary judgment. Slitz, 998 S.W.2d at 162; Rule 55.27(a). Review on appeal of summary judgment is essentially de novo. Slitz, 998 S.W.2d. at 162. The record is reviewed in the light most favorable to the party against whom summary judgment was entered. Id. at 163.

Conco’s sole point on appeal is as follows:

The Trial Court erred in sustaining the various Defendants’ motions to dismiss as to Count I of Plaintiffs First Amended Petition, because the Trial Court failed to determine if facts pleaded and inferences reasonably drawn therefrom stated a ground for relief, and the Trial Court failed to treat the facts averred as true, and further failed to construe all averments of the mechanic’s lien statutes liberally and favorably to the Plaintiff, in that the Plaintiff pled in Count I of its First Amended Petition all the essential elements to state a cause of action for a mechanic’s lien under § 429.010 et seq. RSMo., and specifically pled that the materials furnished by the Plaintiff were furnished under one general contract and one continuous arrangement between Plaintiff and Defendant, Joe Farley, wherein Plaintiff agreed to provide concrete and other building materials and supplies to and for the commercial development known as Catamount Ridge North Phase 1 consisting of foundations, foundation pads, driveways, basements, and other concrete work, and that said account constitutes one continuous running and connected account.

The trial court examined the plat for Catamount Ridge that was attached to the pleadings. It was stipulated that the plat was correct. The trial court determined that the lots were not contiguous. Conco admitted in its pleadings at the trial level and in oral argument on appeal that it was not contending that the lots referred to in Count I are contiguous. Rather, in its argument on appeal, Conco takes issue with the finding of the trial court that there were multiple contracts and that § 429.040 is the proper section to file a lien on multiple lots.

Even if Conco’s allegation concerning “one continuous running and connected account” is correct, its argument still fails because the facts do not fit within any set of circumstances that would allow one lien to be effective over all the lots. The trial court based its dismissal upon Conco’s non-compliance with § 429.040. Section 429.040 reads:

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. (Emphasis added).

For a lien to be effective under that statute there must be contiguous lots. If the lots are not contiguous within the meaning of § 429.040, then one notice of a mechanics’ lien for the whole area is not sufficient and is unauthorized by the statute. Stewart Concrete & Material Company v. James H. Stanton Construction Company, 433 S.W.2d 76, 79 (Mo.App.1968); see also Roy F. Stamm Electric Co. v. Hamilton-Brown Shoe Co., 350 Mo. 1178, 171 S.W.2d 580, 582 (1943). As Conco admits, the lots Conco purports to cover with one lien are not contiguous. Therefore, Conco can not prevail under § 429.040 regardless of the [264]*264structure of the contract (or contracts) relating to the development.

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Bluebook (online)
63 S.W.3d 260, 2001 Mo. App. LEXIS 2113, 2001 WL 1360191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/concrete-co-of-the-ozarks-v-catamount-ridge-north-llc-moctapp-2001.