In the Missouri Court of Appeals Eastern District DIVISION ONE
CUSTOM CONSTRUCTION ) No. ED111253 SOLUTIONS, LLC, and CANNON ) DESIGN, INC., ) ) Plaintiffs/ Respondents, ) Appeal from the Circuit Court ) of the City of St. Louis v. ) Cause No. 1822-CC11468 ) B & P CONSTRUCTION, INC., et al. ) Honorable Christopher E. McGraugh ) Defendants, ) ) and ) ) HH ST. LOUIS RAILWAY L.P., and ) GAMMA REAL ESTATE CAPITAL, ) LLC, ) ) Defendants/Appellants ) ) and ) ) GEOTECHNOLOGY, INC., TRUSTEES ) SERVICES, INC., and CONCRETE ) STRATEGIES, LLC, ) ) Defendants/ Respondents. ) Filed: November 28, 2023
Introduction
Following a bench trial, the trial court found the mechanic’s liens filed by Custom
Construction Solutions, LLC (“Custom Construction”); Cannon Design, Inc. (“Cannon”), and Concrete Strategies, LLC (“Concrete Strategies”) (collectively, “lien claimants”) had priority over
the deed of trust filed by Gamma Real Estate Capital, LLC (“Gamma”) for a project involving the
Railway Exchange Building and parking garage in downtown St. Louis. On appeal, Gamma raises
four points. Gamma argues the trial court erred in finding the mechanic’s liens had priority over
the deed of trust, in finding Gamma waived the priority of its deed of trust, in finding the
mechanic’s liens were valid, and in admitting Cannon’s letter of registration after the trial.
In a consolidated action, the trial court also found HH St. Louis Railway, LP (“HH St.
Louis”) breached its contracts with Custom Construction, Cannon, Concrete Strategies, and
Geotechnology, Inc. (“Geotechnology”) by failing to pay them. HH St. Louis raises six points on
appeal. HH St. Louis argues the trial court erred in finding it breached the contracts, in finding
Concrete Strategies was unjustly enriched, in finding the mechanics liens were valid, in admitting
Geotechnology’s and Cannon’s letters of registration after the trial, and in awarding attorneys’
fees.
We affirm in part and reverse in part the judgment of the trial court.
Factual and Procedural Background
Facts
In January 2017, HH St. Louis purchased the Railway Exchange Building, the parking
garage, and the surface parking lot to redevelop them into retail, office, and residential space. The
total purchase price was approximately $29.7 million. Gamma, HH St. Louis’s financial lender,
lent HH St. Louis $19.7 million. At the time of closing, HH St. Louis executed a deed of trust in
favor of Gamma as a security interest in the loan. Gamma recorded the deed of trust on February
14, 2017.
2 Gamma placed a portion of the loan proceeds into a predevelopment reserve fund. This
fund contained $5 million. HH St. Louis used this fund to complete predevelopment work, which
included remediation and demolition. To access the funds, HH St. Louis submitted draw requests
to Gamma, which required HH St. Louis to provide all bills, invoices, and receipts. The draw
requests referred to the loan agreement as a “construction loan agreement.” As part of the draw
requests, HH St. Louis “agree[d] to provide, if requested by [Gamma], a vendor payee listing
showing the name and amount currently due each party to whom [HH St. Louis] is obligated for
labor, material, and/or services supplies.” Gamma approved some draw requests and rejected
others.
HH St. Louis retained Concrete Strategies to provide all necessary materials, labor, and
construction for mitigation repairs to strengthen the Railway Exchange Building and garage.
Specifically, this required various repairs and installation of temporary shoring to keep the building
in an operating manner. Concrete Strategies began work on the project, but to take advantage of
tax incentives, it brought in B&P Construction, a minority-owned contractor. B&P Construction
took over as the general contractor, and Concrete Strategies became a subcontractor. Concrete
Strategies performed shoring work on the garage until May 8, 2018. After HH St. Louis and B&P
Construction failed to pay invoices submitted by Concrete Strategies, Concrete Strategies filed a
lien against the garage in the amount of $378,041.35.
In addition to Concrete Strategies’s work on the garage, HH St. Louis, through its
authorized representative, S.M.,1 asked Concrete Strategies to provide labor and equipment for
selective demolition on the Railway Exchange Building. Concrete Strategies performed the
1 The personal identifying information of witnesses has been omitted pursuant to RSMo § 509.520 (Supp. 2023). 3 selective demolition at a rate of $1,900 per day and submitted the invoices to HH St. Louis. HH
St. Louis failed to pay Concrete Strategies for its work on the Railway Exchange Building.
Concrete Strategies therefore filed a lien against the Railway Exchange Building in the amount of
$155,000.
In November 2017, HH St. Louis and Cannon entered into a contract for Cannon to provide
architecture and engineering services for the redevelopment of the Railway Exchange Building.
Under the contract, HH St. Louis was required to pay Cannon $3.65 million. Cannon began work
on the project and completed the first two stages of the architectural and engineering process. This
included producing multiple schematic designs for HH St. Louis. Cannon’s work continued until
June 28, 2018. Up to that point, some of Cannon’s invoices went unpaid. After unsuccessfully
attempting to resolve the nonpayment, Cannon filed a lien on the Railway Exchange Building on
August 24, 2018, in the amount of $1,758,585.
Concrete Strategies hired Custom Construction on May 1, 2017 to provide materials to
assist in supporting the garage while it was being repaired. After B&P Construction became the
general contractor, Custom Construction began sending its invoices to B&P Construction. Some
of the invoices were paid, but others were not. Due to the unpaid invoices, Custom Construction
filed a lien against the Railway Exchange Building, garage, and surface parking lot in the amount
of $47,186.22.
B&P Construction joined the Railway Exchange Building project in June 2017. Soon after,
B&P Construction entered into a contract with HH St. Louis. B&P Construction began work on
the Railway Exchange project in November 2017. Its main roles were cleaning up the garage and
serving in an administrative role as the general contractor. In the administrative role, B&P
Construction received and sent invoices from the subcontractors to HH St. Louis for payment. It
4 sent these invoices to S.M., an authorized representative of HH St. Louis. HH St. Louis would
send the funds to B&P Construction, which in turn would disburse the funds to the subcontractors.
Eventually, some of Concrete Strategies’s invoices went unpaid because HH St. Louis failed to
pay B&P Construction and B&P Construction failed to pay Concrete Strategies. Because HH St.
Louis failed to pay B&P Construction for four pay applications from Concrete Strategies, B&P
Construction filed a cross-claim against HH St. Louis to recover damages for the amounts of the
pay applications.
In December 2017, HH St. Louis retained Geotechnology to perform engineering work on
the Railway Exchange Building. Specifically, Geotechnology would perform materials testing to
provide data and analysis for the existing structure of the Railway Exchange Building.
Geotechnology performed its work and submitted invoices to HH St. Louis for $45,066.13. HH
St. Louis failed to pay the invoices. Due to the nonpayment of its invoices, Geotechnology filed a
breach of contract cross-claim against HH St. Louis and a lien against the Railway Exchange
Building.
Procedural Background
In October 2018, Custom Construction filed suit against B&P Construction, HH St. Louis,
and Gamma to enforce its lien against the Railway Exchange Building, garage, and surface parking
lot. In February 2019, Cannon filed suit against HH St. Louis, Gamma, Custom Construction, B&P
Construction, Geotechnology, and Concrete Strategies to enforce its lien, among other things. In
response, Geotechnology filed a counterclaim and cross-claim seeking enforcement of its lien and
additionally filed a cross-claim against HH St. Louis for breach of contract. Concrete Strategies
filed a cross-claim against all parties seeking enforcement of its liens, and a cross-claim against
5 HH St. Louis for unjust enrichment. B&P Construction filed a cross-claim against HH St. Louis
for breach of contract.
Gamma raised affirmative defenses alleging its deed of trust maintained priority over the
mechanic’s liens, and it had not waived the priority of its deed of trust. HH St. Louis raised
affirmative defenses alleging the lien claimants failed to comply with the lien statute.
The trial court conducted a bench trial over four non-consecutive days. Following the close
of all lien claimants’ evidence, HH St. Louis moved for judgment against the lien claimants under
Rule 73.01. 2 HH St. Louis argued neither Cannon nor Geotechnology proved they were registered
with the Board for Architects, Professional Engineers, and Surveyors, or that they obtained a
certificate of authority to practice in Missouri. In response, Cannon and Geotechnology moved to
re-open evidence to offer further proof they were registered in Missouri and obtained certificates
of authority. Over Gamma’s opposition, the trial court re-opened evidence for the sole purpose of
accepting Cannon’s and Geotechnology’s letters of registration.
The trial court entered judgment finding:
(1) Gamma waived priority of its deed of trust because it was aware its loan proceeds
would be used for construction costs.
(2) Custom Construction had an enforceable lien on the Railway Exchange Building,
garage, and surface parking lot in the amount of $47,186.22. Additionally, Custom
Construction was entitled to $18,860.27 in prejudgment interest.
(3) Cannon had an enforceable lien on the Railway Exchange Building in the amount of
$2,385,682. This amount included the principal amount plus interest.
2 All rule references are to the Missouri Supreme Court Rules (2022) unless otherwise indicated. 6 (4) Concrete Strategies had an enforceable lien on the garage for $524,203.53, and on the
Railway Exchange Building for $214,927.67. These amounts included the principal
amounts plus interest. Additionally, Concrete Strategies was entitled to $645,824.75
against HH St. Louis for unjust enrichment.
(5) Geotechnology was entitled to $60,789.65 against HH St. Louis for breach of contract.
This amount included the principal amount plus interest.
(6) B&P Construction was entitled to $546,216.91 against HH St. Louis for breach of
contract.
Cannon, Geotechnology, Concrete Strategies, and B&P Construction moved for an award
of attorneys’ fees. The trial court awarded Geotechnology attorneys’ fees pursuant to the fee
provision in its contract with HH St. Louis. The trial court awarded B&P Construction, Concrete
Strategies, Geotechnology, and Cannon their attorneys’ fees under Section 431.180, the Private
Prompt Payment Act. (“PPA”).
Gamma and HH St. Louis now appeal.
Analysis
Gamma
For the convenience of the reader, we will address Gamma’s four points first and then turn
to HH St. Louis’s six points. In its first point, Gamma argues the trial court erred in granting
priority to the lien claimants’ mechanic’s liens because Gamma recorded its deed of trust before
the commencement of any work at the property. In its second point, Gamma argues the trial court
erred in holding Gamma waived the priority of its purchase money deed of trust because the trial
court applied the wrong waiver standard and none of the lien claimants submitted evidence to
prove waiver. In its third point, Gamma argues the trial court erred in holding that the lien
7 claimants proved compliance with the statutory requirements for obtaining a valid mechanic’s lien.
In its fourth point, Gamma argues the trial court erred in admitting after trial Cannon’s letter of
registration without authenticating testimony and by refusing to allow Gamma to challenge the
letter of registration.
Points One and Two
We address Points I and II together because Point II is dispositive of Point I.
In a bench-tried civil case, this Court will affirm the trial court’s judgment unless there is
no substantial evidence to support it, or it is against the weight of the evidence, erroneously
declares the law, or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc
1976). “We view the evidence and the reasonable inferences that may be drawn therefrom in the
light most favorable to the judgment, disregarding evidence and inferences to the contrary.”
Higgins v. Ferrari, 474 S.W.3d 630, 635 (Mo. App. W.D. 2015) (quoting Stander v. Szabados,
407 S.W.3d 73, 78 (Mo. App. W.D. 2013)); see also Central Parking Sys., LLC v. Tucker Parking
Holdings, LLC, 519 S.W.3d 485, 492 (Mo. App. E.D. 2017) (“We accept the evidence and
reasonable inferences therefrom which support the trial court’s decision as true, and we disregard
all contrary evidence and inferences.”).
A mortgagee holding a deed of trust can waive its priority interest to a mechanic’s lien if
the mortgagee induces “the furnishing of labor and material.” H.B. Deal Const. Co. v. Labor Disc.
Ctr., Inc., 418 S.W.2d 940, 952 (Mo. Div. 1 1967) overruled on other grounds by R.L. Sweet
Lumber Co. v. E.L. Lane, Inc., 513 S.W.2d 365 (Mo. banc 1974). “Generally, the priority of a
superior deed of trust over an equitable lien can be waived where there is evidence that the holder
of a superior deed of trust is aware that its loan will be used for construction on the property and
will be secured by the property where the construction activity will be undertaken.” First Banc
8 Real Est., Inc. v. Johnson, 321 S.W.3d 322, 335 (Mo. App. W.D. 2010); see also Glenstone Block
Co. v. Pebworth, 330 S.W.3d 98, 102 (Mo. App. S.D. 2010) (“A lender who knows and
contemplates that mechanic’s liens and materialmen’s liens can arise from a construction project
for which the loan is being made waives the claim of priority of its deed of trust as to the
mechanic’s lien.”); Const. Equip. Mgmt., Inc., v. Dunhill Dev. Corp., 892 S.W.2d 639, 645 (Mo.
App. E.D. 1994) (citing Drilling Serv. Co. v. Baebler, 484 S.W.2d 1, 10 (Mo. Div. 1 1972)).
Whether waiver occurred is a question of fact and “is not susceptible to solution by rigid
legal dogma.” Kranz v. Centropolis Crusher, Inc., 630 S.W.2d 140, 147 (Mo. App. W.D. 1982).
“Waiver is essentially a matter of intention, to be determined, usually, from the facts and
circumstances.” Genesis Eng’g Co., Inc. v. Hueser, 829 S.W.2d 579, 581 (Mo. App. W.D. 1992).
The trial court found that Gamma was “clearly aware that its loan would be used for
construction on the property and that the loan would be secured by the property where the
construction activity would be undertaken.” This was evident from the loan agreement between
Gamma and HH St. Louis and the fact that “Gamma controlled and approved the construction and
architectural work and the disbursement of funds to pay for it.”
Essentially, the trial court referred to the predevelopment reserve fund. HH St. Louis could
access the fund pursuant to the terms of the loan agreement, but Gamma retained complete control
over the fund. To access the fund, HH St. Louis provided detailed draw requests to Gamma, which
referred to the loan agreement as a “construction loan agreement.” Gamma approved some draw
requests and exercised its discretion to reject others. Proof of this process amounts to substantial
evidence that Gamma was aware its loan proceeds would be used for construction purposes.
Also, substantial evidence supported the finding that Gamma was aware the property was
subject to liens. The parties’ contract provided that HH St. Louis must pay “all claims and demands
9 of mechanics, materialmen, laborers and others.” If there was a lien filed against the property, HH
St. Louis would have to defend against the lien, indemnify Gamma, and hold Gamma harmless
from all mechanic’s liens.
Viewing the evidence in the light most favorable to the judgment and disregarding all
contrary evidence, we conclude that substantial evidence supported the trial court’s findings that
Gamma was aware its loan proceeds would be used for construction and the property would be
subject to liens, and Gamma waived the priority of its deed of trust for the Railway Exchange
Building and garage. Because the trial court did not err in finding Gamma waived the priority of
its deed of trust, we need not consider whether the deed of trust had priority over the mechanic’s
liens filed by Concrete Strategies, Custom Construction, and Cannon. Points I and II are denied.
Point Three
In its third point, Gamma argues the trial court erred in finding the lien claimants proved
compliance with the statutory requirements for obtaining a valid mechanic’s lien. 3
Liens Against the Parking Lot
Gamma first argues the mechanic’s liens of Custom Construction and Concrete Strategies
against the surface lot are invalid because neither of them performed work or furnished materials
for construction on the surface lot.
Section 429.010 governs mechanic’s liens in Missouri. 4 It provides generally that any
person who performs work upon land or furnishes material for any building or improvement upon
3 Gamma’s third point is exceedingly multifarious and fails to comply with Rule 84.04. See Cedar Cnty. Comm’n v. Governor Michael Parson, 661 S.W.3d 766, 772 (Mo. banc 2023). Gamma raises at least seven different challenges under different legal theories to two liens filed by Concrete Strategies, one lien filed by Custom Construction, and one lien filed by Cannon. Though we may decline to review a multifarious point, we choose to review this point ex gratia. Id. 4 Unless otherwise indicated, all statutory references are to RSMo (2000) as amended. 10 land, or for repairing any building or improvement upon the land, under a contract with the owner
or the owner’s agent or contractor, shall have a lien on the building or improvement, and upon the
land belonging to such owner on which the building or improvement is situated. Section 429.010.1.
The lien attaches upon compliance with the provisions of Sections 429.010 to 429.340. Id.
Missouri courts have made clear: “Statutes creating mechanic’s liens are remedial in nature
and should be given a liberal construction so as to effectuate their object and purpose and protect
the claims of the mechanics and materialmen.” Midwest Floor Co. v. Miceli Dev. Co., 304 S.W.3d
243, 247–48 (Mo. App. E.D. 2009); see also State ex rel. Springfield Underground, Inc. v.
Sweeney, 102 S.W.3d 7, 9 (Mo. banc 2003) (“As a general rule, statutes relating to mechanic’s
liens should be liberally construed in favor of lien enforceability.”). Reasonable and substantial
compliance with the statute suffices. Lake Ozark Const. Indus., Inc. v. Osage Land Co., L.L.C.,
168 S.W.3d 471, 476 (Mo. App. W.D. 2005).
Custom Construction does not respond to Gamma’s arguments on appeal. Custom
Construction did not file a brief and instead incorporates by reference respondent Cannon’s brief.
But Cannon’s brief does not offer any defense of Custom Construction’s lien. “While precedent
dictates that there is no penalty prescribed for a respondent’s failure to file a brief, that failure
deprives this Court of the benefits of the adversarial process.” State v. Stewart, 640 S.W.3d 174,
178 n.3 (Mo. App. E.D. 2022); see also Shomaker v. Director of Revenue, 504 S.W.3d 84, 87 (Mo.
App. E.D. 2016).
Custom Construction’s lien described the Railway Exchange Building, the garage, and the
parking lot next to the garage. At trial, the evidence showed Custom Construction worked on only
the garage, not the Railway Exchange Building or the parking lot. Since Custom Construction did
not perform work or furnish any materials for the parking lot, it is not entitled to a lien against the
11 parking lot. See Section 429.010. Accordingly, we must reverse the trial court’s judgment insofar
as it enforces Custom Construction’s lien against the parking lot. Our decision in this regard does
not disturb the trial court’s judgment enforcing Custom Construction’s lien against the garage.
Gamma’s challenge to Concrete Strategies’s lien on the parking lot is raised for the first
time on appeal. Because Gamma failed to raise this specific challenge in the trial court, it is not
preserved, and we need not consider it. See Ford v. Skaggs Chiropractic, LLC, 599 S.W.3d 264,
268–69 (Mo. App. S.D. 2020).
Liens against the Garage
Second, Gamma argues the mechanic’s liens of Custom Construction and Concrete
Strategies against the garage are invalid because they failed to comply with the statutory notice
requirement under Section 429.100.
Section 429.100 provides that “every person except the original contractor, who may want
to avail himself of the provisions of sections 429.010 to 429.340, shall give ten days’ notice before
filing of the lien . . . 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.”
Gamma reasons HH St. Louis does not own all of the parcels upon which the garage is
located. For sufficient notice, Gamma argues Custom Construction and Concrete Strategies were
required to serve notice to the owners of all four parcels on which the garage sits, in addition to
serving HH St. Louis. Gamma concedes HH St. Louis was properly served with notice under the
statute, but argues the purported remaining parcel owners, who are not parties to this appeal, were
not served.
In its cross-claim petition, Concrete Strategies alleged HH St. Louis was the owner of both
the Railway Exchange Building and the garage. In its answer to the cross-claim, Gamma admitted
12 HH St. Louis was the owner of the Railway Exchange Building and the garage, and did not allege
the existence of any other owners. “Allegations in a petition, admitted in an answer, are judicial
admissions and obviate any need for evidence on that issue.” J.H. Berra Paving Co., Inc. v. City
of Eureka, 50 S.W.3d 358, 362 (Mo. App. E.D. 2001) (quoting Piel v. Piel, 918 S.W.2d 373, 375
(Mo. App. E.D. 1996)). Once a party admits an allegation, it is bound by that admission. J.H. Berra
Paving Co., 50 S.W.3d at 362. Given this judicial admission, substantial evidence and the
reasonable inferences drawn therefrom supported the trial court’s finding that Custom
Construction and Concrete Strategies gave sufficient notice to the owner of the garage pursuant to
the terms of Sections 429.010 and 429.100. 5
Liens against the Railway Exchange Building
Regarding the Railway Exchange Building, Gamma argues Custom Construction’s lien is
invalid because Custom Construction did not provide materials or work for that project. Gamma
also argues Concrete Strategies’s lien against the Railway Exchange Building is invalid because it
failed to provide notice to the owner before filing the lien and the lien did not adequately describe
the Railway Exchange Building. Finally, Gamma argues Cannon’s lien against the Railway
Exchange Building is invalid because Cannon failed to prove it was registered with, and had
obtained a certificate of authority from, Missouri’s Board for Architects, Professional Engineers,
and Surveyors.
Custom Construction’s lien described the Railway Exchange Building, the garage, and the
parking lot next to the garage. But the evidence at trial showed Custom Construction performed
work and provided materials for only the garage and not the Railway Exchange Building or the
5 In any event, Section 429.010 allows for a mechanic’s lien on only the land “belonging to” the owner with whom the lien claimant contracted. Gamma does not challenge the liens of Custom Construction and Concrete Strategies on that basis. 13 parking lot. Again, on the record before us, we must reverse the judgment enforcing Custom
Construction’s lien against the Railway Exchange Building for lack of substantial evidence. We
leave undisturbed the trial court’s judgment enforcing Custom Construction’s lien against the
garage.
Gamma also argues Concrete Strategies’s lien against the Railway Exchange Building is
invalid because Concrete Strategies failed to provide the requisite notice to the owner before filing
its mechanic’s lien. Gamma contends the lien notice on Concrete Strategies’s first invoice to HH
St. Louis was insufficient because it was addressed to Spinnaker St. Louis, LLC (“Spinnaker”)
rather than HH St. Louis itself, and Spinnaker was not given express authority to receive notice of
the mechanic’s lien. This argument is unpersuasive because the invoice was directed to HH St.
Louis in care of Spinnaker St. Louis, LLC, and Spinnaker had authority to receive notice of the
lien on behalf of HH St. Louis.
There are two types of agency authority: actual and apparent. The Bar Plan v. Cooper, 290
S.W.3d 788, 792 (Mo. App. E.D. 2009). “Actual authority consists of a principal telling his agent
expressly what to do and of implied powers that go along with authority expressly granted.” Id.
“Apparent authority exists where a principal’s manifestations to a third party have created a
reasonable belief in the third party that an agent is acting for the principal, or where the principal
is fully aware that another is acting as his agent but does nothing to correct the misconception.”
Id.
Concrete Strategies correctly responds that S.M. of Spinnaker was an agent of HH St.
Louis. Testimony from Concrete Strategies’s vice president established that he understood S.M.
to be a representative of HH St. Louis, S.M. told him to bill HH St. Louis for the services provided,
and S.M. even directly represented he was acting on behalf of HH St. Louis. Also, the principal of
14 HH St. Louis, A.G., was fully aware that S.M. was acting as an agent of HH St. Louis. A.G. was
directly involved in email correspondence in which S.M. made decisions about the Railway
Exchange project and did nothing to correct any misconception about the agency relationship.
There is substantial evidence S.M. had apparent authority to act on behalf of HH St. Louis.
Accordingly, Concrete Strategies’s invoices sent to Spinnaker and S.M. provided the requisite
notice to HH St. Louis.
Finally, Gamma argues Concrete Strategies’s lien against the Railway Exchange Building
is invalid because Concrete Strategies failed to describe the Railway Exchange Building in any of
its mechanic’s liens.
Section 429.080 states a lien must provide a true description of the property, “or so near to
identify the same, upon which the lien is intended to apply.” A lien description will satisfy this
requirement “provided that the description was sufficient to enable one familiar with the locality
to identify the premises covered by the lien.” Sweeney, 102 S.W.3d at 9 (quoting Breckenridge
Material Co. v. Byrnesville Cons. Co., Inc., 842 S.W.2d 551, 552 (Mo. App. E.D. 1992)) (internal
quotation marks omitted). A lien description is fatally defective “where the land described by the
plaintiff was not the land on which the improvements were placed.” Id. (quoting Chance v. Franke,
350 Mo. 162, 165 S.W.2d 678, 680 (Mo. Div. 1 1942)) (internal quotation marks omitted).
Trial testimony established the Railway Exchange Building is located at the street
addresses of 611 to 615 Olive Street. Concrete Strategies’s lien filed against the Railway Exchange
Building listed the street address of 612 Olive Street. The invoices attached as exhibits to the lien
filing described work completed on the Railway Exchange Building. Nevertheless, the legal
description contained in the lien filing described the garage, not the Railway Exchange Building.
Still, the listing of the street address of 612 Olive Street, which is contained within the range of
15 street addresses from 611 to 615 Olive Street, along with the invoices attached to the lien filing,
are substantial evidence that one familiar with the locality would be able to identify the premises
covered by the lien. See Springfield Underground, Inc., 102 S.W.3d at 9.
In its final argument, Gamma argues Cannon’s lien against the Railway Exchange Building
is invalid because Cannon failed to prove it was registered with, and had received a certificate of
authority from, the Board for Architects, Professional Engineers, and Surveyors. Gamma’s
argument is without merit. Cannon’s vice president testified Cannon was registered to practice
architecture in the State of Missouri. Under Section 429.015.1, an architecture or engineering
corporation need only be registered with the state in order to validly attach a lien for architectural
services. Because there is substantial evidence Cannon was registered with the State of Missouri,
the trial court did not err in finding that Cannon’s lien against the Railway Exchange Building is
valid.
We grant Point III in part, and deny Point III in part.
Point Four
In its fourth point, Gamma argues the trial court erred in admitting Cannon’s letter of
registration after trial without authenticating testimony or allowing Gamma to challenge the letter
of registration.
A trial court’s evidentiary ruling is reviewed for abuse of discretion. Johnson v. City of St.
Louis, 613 S.W.3d 435, 447 (Mo. App. E.D. 2020). A trial court abuses its discretion in not re-
opening a case “when there is no inconvenience to the court or unfair advantage to one of the
parties. . . [and a party seeks to] introduce material evidence. . . that would substantially affect the
merits of the action.” Pride v. Lamberg, 366 S.W.2d 441, 445 (Mo. Div. 2 1963). The trial court
16 has broad discretion in allowing a party to re-open its case. Lavin v. Carroll, 871 S.W.2d 465, 468
(Mo. App. E.D. 1994).
First, Gamma argues the trial court abused its discretion in admitting the letter of
registration because Cannon failed to specifically plead it was registered with and had obtained a
certificate of authority from Missouri’s Board for Architects, Professional Engineers, and
Surveyors. Gamma overlooks the first paragraph of Cannon’s petition, in which Cannon alleges it
is “a Missouri corporation registered to practice architecture and professional engineering.” Giving
the pleadings broad construction and affording all reasonable inferences from the facts pled, see
Forde v. Forde, 190 S.W.3d 521, 529 (Mo. App. E.D. 2006), we conclude Cannon sufficiently
pled it is registered with the State Board for Architects, Professional Engineers, and Surveyors to
practice architecture and engineering, and the letter of registration was within the scope of the
pleadings.
Additionally, Gamma argues the admission of the letter was prejudicial because Gamma
based its defense at trial in part upon Cannon’s failure to plead and produce evidence that it had
registered with the Board prior to beginning its work for HH St. Louis. Gamma’s prejudice
argument fails for several reasons. First, as already stated, Paragraph 1 of Cannon’s petition
forthrightly pled that Cannon is “a Missouri corporation registered to practice architecture and
professional engineering.” Second, Cannon’s vice president testified at trial that Cannon is
registered to practice architecture in Missouri, rendering the later admission of the letter merely
cumulative and not prejudicial to Gamma. See Kline v. City of Kansas City, 334 S.W.3d 632, 641
(Mo. App. W.D. 2011) (quoting Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 134 (Mo.
banc 2007)) (“A party cannot be prejudiced by the admission of allegedly inadmissible evidence
if the challenged evidence is merely cumulative to other evidence admitted without objection.”).
17 Gamma had the opportunity to cross-examine the vice president and challenge his testimony, but
chose not to. Considering that Cannon pled and produced evidence of its registration, Gamma was
not prejudiced by the admission of the letter of registration, and the trial court did not abuse its
discretion in admitting the letter of registration. Gamma’s Point IV is denied.
HH St. Louis
In its first point, HH St. Louis argues the trial court erred in entering judgment on the
breach of contract claims for Concrete Strategies, Cannon, and Geotechnology (“HH claimants”)
because none of the HH claimants adduced substantial evidence of workmanlike performance. In
its second point, HH St. Louis argues the trial court erred in awarding Concrete Strategies damages
for unjust enrichment because there was no substantial evidence of a benefit conferred on HH St.
Louis. In its third point, HH St. Louis argues the trial court erred in entering judgment in favor of
Cannon and Geotechnology on their breach of contract claims because they failed to prove they
obtained a certificate of authority from the Missouri Board for Architects, Professional Engineers,
and Surveyors. In its fourth point, HH St. Louis argues the trial court erred and abused its discretion
in re-opening the evidence and admitting Cannon’s and Geotechnology’s unauthenticated letters
of registration and by denying HH St. Louis the ability to challenge the letters. In its fifth point,
HH St. Louis argues the trial court erred in awarding the full amount of attorneys’ fees claimed by
Concrete Strategies, Cannon, and B&P Construction under the PPA. In its sixth point, HH St.
Louis argues the trial court erred in awarding Geotechnology attorneys’ fees because
Geotechnology was not entitled to attorneys’ fees pursuant to the parties’ contract.
Point One
18 In its first point, HH St. Louis argues the trial court erred in entering judgment for the HH
claimants and against HH St. Louis because the HH claimants failed to adduce any evidence of
workmanlike performance.
In every contract to perform work, there is an implied promise the work will be completed
in a workmanlike manner. Sheck Indus. Corp. v. Tarlton Corp., 435 S.W.3d 705, 723 (Mo. App.
E.D. 2014); see also Jake C. Byers, Inc. v. J.B.C. Invs., 834 S.W.2d 806, 809–10 (Mo. App. E.D.
1992). In a breach of contract action, the plaintiff maintains the burden of proof in demonstrating
its work was completed in a workmanlike manner. Sheck Indus. Corp., 435 S.W.3d at 723.
“Workmanlike performance has been defined as work which is completed in a skillful manner and
is non-defective.” Id. (quoting Evans v. Werle, 31 S.W.3d 489, 491 (Mo. App. W.D. 2000))
(internal quotation marks omitted).
In its breach of contract claim, Cannon alleged it provided architectural and engineering
design services for the rehabilitation and repair of the Railway Exchange Building and garage. An
architect has a duty “to exercise the ordinary and reasonable technical skill that is usually exercised
by one in that profession.” Business Men’s Assur. Co. of Am. v. Graham, 891 S.W.2d 438, 453
(Mo. App. W.D. 1994). This duty was incorporated as a term of the contract between HH St. Louis
and Cannon. Specifically, the contract stated, “The architect shall perform its services consistent
with the professional skill and the standard of care ordinarily provided by architects practicing in
the same or similar locality under the same or similar circumstances.” At trial, Cannon’s vice
president testified that, while operating under the terms of the contract, no one ever told him that
Cannon’s “work was insufficient or improper or incomplete” and Cannon never “receive[d] any
objections to [its] percentage completions that were listed on any of [its] invoices.” Further
testimony showed that HH St. Louis paid some of Cannon’s invoices, from which the trial court
19 could infer that Cannon completed the work in a workmanlike manner as required by the contract.
Substantial evidence, and reasonable inferences drawn from that evidence, supported the trial
court’s conclusion that Cannon completed its work in a workmanlike manner.
Geotechnology provided engineering services to HH St. Louis. Engineers must
demonstrate they followed the standard of care applicable to all other engineers in the field. See
Yantzi v. Nortion, 927 S.W.2d 427, 432 (Mo. App. W.D. 1996). Geotechnology and HH St. Louis
incorporated this standard into their contract. Specifically, the contract stated, “The standard of
care for all professional engineering and related services performed under this AGREEMENT will
be the care and skill ordinarily used by members of the subject profession practicing under similar
circumstances at the same time and in the same locality.” The authorized representative of HH St.
Louis who signed the contract testified that Geotechnology’s work was not materially defective in
any way and was fully performed in accordance with the contract. He was not aware of anyone
disputing Geotechnology’s invoices and agreed that “Geotechnology did the work they were
contracted to do and should be paid.” Substantial evidence supported the trial court’s finding that
Geotechnology performed its work in a workmanlike manner.
Similarly, substantial evidence supported the trial court’s finding that Concrete Strategies
performed its work in a workmanlike manner. The contract between B&P Construction and
Concrete Strategies stated that “all work under this Subcontract Agreement will be performed in a
good and workmanlike manner, shall be of good quality, free from faults and defects, and in
accordance with the Contract Documents.” The contract further states, “If at any time during the
warranty period, Contractor or Owner shall discover any aspect of Subcontract Work not in
compliance with this warranty, then written notice shall be provided to the Subcontractor.”
20 Neither HH St. Louis nor B&P Construction ever provided written notice to Concrete
Strategies that its work was not performed in a good and workmanlike manner. Also, while
operating under the “workmanlike standard” clause, HH St. Louis and B&P Construction paid
Concrete Strategies’s invoices. Payment of Concrete Strategies’s later invoices ceased only
because HH St. Louis failed to pay B&P Construction. Substantial evidence, and reasonable
inferences drawn from that evidence, supported the trial court’s finding that Concrete Strategies
performed its work in a workmanlike manner.
Alternatively, HH St. Louis argues expert testimony is required to determine whether the
HH claimants’ work was performed in a workmanlike manner. HH St. Louis raises this argument
for the first time on appeal, it is not preserved, and we do not consider it. See Ford, 599 S.W.3d at
268–69. Point I is denied.
Point Two
In its second point, HH St. Louis argues the trial court erred in awarding Concrete
Strategies damages for unjust enrichment because there was no substantial evidence of a benefit
conferred on HH St. Louis.
“The essential elements of unjust enrichment are ‘(1) the defendant was enriched by the
receipt of a benefit; (2) that the enrichment was at the expense of the plaintiff; and (3) that it would
be unjust to allow the defendant to retain the benefit.’” Gateway Metro Fed. Credit Union v. Jones,
603 S.W.3d 314, 322 (Mo. App. E.D. 2020) (quoting Roberts v. Roberts, 580 S.W.3d 600, 605
(Mo. App. E.D. 2019)). Additionally, as a part of the first element, the plaintiff must show “the
amount of the benefit conferred on the defendant.” Autumn Lakes Ass’n v. Tran, 655 S.W.3d 442,
449 (Mo. App. E.D. 2022).
21 HH St. Louis contends Concrete Strategies failed to demonstrate the actual amount of the
benefit conferred on HH St. Louis. It argues Concrete Strategies proved only that it performed
work and provided materials of a “reasonable value.” HH St. Louis’s argument fails because
Concrete Strategies proved the amount of benefit conferred on HH St. Louis. First, Concrete
Strategies showed the actual value of its unpaid work on the garage was $378,041.35. The amount
in unpaid change orders for the work on the garage was $208,368.84. The retainage amount was
$59,414.56. Taken together, the total amount of the benefit conferred on HH St. Louis was
$645,824.75. HH St. Louis gives us no reason on appeal to conclude the benefit conferred on HH
St. Louis was any less than the actual value of Concrete Strategies’s work. Thus, contrary to HH
St. Louis’s allegation, substantial evidence, and the reasonable inferences drawn therefrom,
supported the trial court’s finding of a benefit conferred on HH St. Louis and the amount of that
benefit. Point II is denied.
In its third point, HH St. Louis argues the trial court erred in entering judgment in favor of
Cannon and Geotechnology on their breach of contract claims because they failed to prove they
obtained a certificate of authority from Missouri’s Board for Architects, Professional Engineers,
HH St. Louis’s argument fails because Cannon’s vice president testified both he and
Cannon were registered to practice architecture in the State of Missouri. Additionally, in their
contract, HH St. Louis and Cannon agreed that Cannon “had not been debarred, declared ineligible
or excluded by any State agency.” Further, Cannon’s mechanic’s lien, admitted into evidence
without objection, contained a letter from Cannon’s attorney identifying Cannon as the “Architect
22 of Record” for the project. This amounts to substantial evidence that Cannon was registered with
the State Board for Architects, Professional Engineers, and Surveyors.
Similarly, Geotechnology pled in its cross-claim petition that it is “a corporation
incorporated in the State of Missouri and licensed and authorized to do business in the State of
Missouri.” Upon the re-opening of evidence, Geotechnology proved that fact with a letter from the
Missouri Board for Architects, Professional Engineers, and Surveyors. The letter stated
Geotechnology was issued a Corporate Certificate of Authority to provide engineering services in
the State of Missouri and Geotechnology’s license remained in good standing.
Accordingly, substantial evidence supported the trial court’s finding that Cannon and
Geotechnology were registered with the Board for Architects, Professional Engineers, and
Surveyors. Point III is denied.
In its fourth point, HH St. Louis argues the trial court abused its discretion in re-opening
the evidence, admitting Cannon’s and Geotechnology’s unauthenticated letters of registration, and
denying HH St. Louis the ability to challenge the letters.
As we previously observed, evidentiary rulings are reviewed for abuse of discretion.
Johnson, 613 S.W.3d at 447. A trial court abuses its discretion in not re-opening a case “when
there is no inconvenience to the court or unfair advantage to one of the parties. . . [and a party
seeks to] introduce material evidence. . . that would substantially affect the merits of the action.”
Pride, 366 S.W.2d at 445. The trial court has broad discretion in allowing a party to re-open its
case. Lavin, 871 S.W.2d at 465.
HH St. Louis repeats Gamma’s arguments regarding the scope of the pleadings, the lack of
newly discovered evidence, and alleged prejudice. HH St. Louis’s arguments fail for much the
23 same reasons. In any event, the letters were self-authenticating public documents, and HH St.
Louis could not have challenged their authenticity. Although “the Federal Rules of Evidence are
not binding on Missouri courts, they are suggestive.” Emerson v. Garvin Grp., LLC, 399 S.W.3d
42, 45 (Mo. App. E.D. 2013) (quoting Boyer v. City of Potosi, 77 S.W.3d 62, 69 (Mo. App. E.D.
2002)). Federal Rule of Evidence 902 governs self-authenticating documents. See FED. R. EVID.
902. Rule 902(1) provides “a document that bears: a seal purporting to be that of . . . any state, and
a signature purporting to be an execution or attestation” is a self-authenticating domestic public
document and “requires no extrinsic evidence of authenticity in order to be admitted.” See FED R.
EVID. 902(1). Both letters bear the official seal of the State of Missouri and the signature of the
executive director and official custodian of records. They therefore were admissible, self-
authenticating domestic public documents, and the trial court did not abuse its discretion in
admitting them. Point IV is denied.
Point Five
In its fifth point, HH St. Louis argues the trial court erred in awarding the full amount of
attorneys’ fees claimed by Concrete Strategies, Cannon, and B&P Construction under the PPA.
We review the trial court’s award of attorneys’ fees for abuse of discretion. Yes Chancellor
Farms, LLC v. Merkel, 670 S.W.3d 214, 226 (Mo. App. E.D. 2023). “To demonstrate an abuse of
discretion, the complaining party must show the trial court’s decision was against the logic of the
circumstances and so arbitrary and unreasonable as to shock one’s sense of justice.” Berry v.
Volkswagen Grp. of Am., Inc., 397 S.W.3d 425, 431 (Mo. banc 2013) (citing Western Blue Print
Co., LLC v. Roberts, 367 S.W.3d 7, 23 (Mo. banc 2012)).
“The general rule in Missouri is that attorney fees are not awarded to every successful
litigant.” Lucas Stucco & EIFS Design, LLC v. Landau, 324 S.W.3d 444, 445 (Mo. banc 2010)
24 (citing Harris v. Union Elec. Co., 766 S.W.2d 80, 89 (Mo. banc 1989)). “Attorney fees are
recoverable in two situations: when a statute specifically authorizes recovery and when the contract
provides for attorney fees.” Lucas Stucco, 324 S.W.3d at 445 (citing Essex Contracting, Inc. v.
Jefferson Cnty., 277 S.W.3d 647, 657 (Mo. banc 2009)).
Here, there is no contract providing for attorneys’ fees. The applicable statute is Section
431.180, which provides:
1. All persons who enter into a contract for private design or construction work after August 28, 1995, shall make all scheduled payments pursuant to the terms of the contract.
2. Any person who has not been paid in accordance with subsection 1 of this section may bring an action in a court of competent jurisdiction against a person who has failed to pay. The court may in addition to any other award for damages, award interest at the rate of up to one and one-half percent per month from the date payment was due pursuant to the terms of the contract, and reasonable attorney fees, to the prevailing party.
This section provides the trial court with the authority, in its discretion, to award attorneys’
fees. Structure & Design, Unlimited, Inc. v. Contemp. Concepts Bldg. & Design, Inc., 151 S.W.3d
904, 910 (Mo. App. W.D. 2004); see also Lucas Stucco, 324 S.W.3d at 445–46. This Court must
give the statutory language its plain and ordinary meaning. Brock v. Dunne, 637 S.W.3d 22, 28
(Mo. banc 2021). “When the words are clear, there is nothing to construe beyond applying the
plain meaning of the law.” Id. (quoting Bateman v. Rinehart, 391 S.W.3d 441, 446 (Mo. banc
2013)). Specifically, subsection 2 of Section 431.180 states the “court may in addition to any other
award for damages, award . . . reasonable attorney fees, to the prevailing party.” Based on the
entire record and the invoices submitted, the trial court found the fees were reasonable and
necessary, and resulted from HH St. Louis’s failure to make scheduled payments under Section
431.180. HH St. Louis has not shown the trial court’s award of attorneys’ fees to Concrete
25 Strategies, Cannon, and B&P Construction was an abuse of discretion. See Berry, 397 S.W.3d at
431. Point V is denied.
Point Six
Lastly, HH St. Louis argues the trial court erred in awarding Geotechnology attorneys’ fees
because Geotechnology was not entitled to attorneys’ fees under the terms of their contract. HH
St. Louis did not raise this issue before the trial court, the issue is not preserved for appeal, and we
do not consider it. See Ford, 599 S.W.3d at 268–69.
HH St. Louis’s Point VI is denied.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed in part and reversed
in part. We reverse that portion of the judgment enforcing Custom Construction’s lien on the
Railway Exchange Building and parking lot. We remand the cause to the trial court with
instructions to vacate only that portion of the judgment enforcing Custom Construction’s lien
against the Railway Exchange Building and parking lot. The remainder of the judgment is
affirmed.
Cristian M. Stevens, J.
Robert M. Clayton, III, P.J., and Philip M. Hess, J. concur.