Landmark Systems, Inc. v. Delmar Redevelopment Corp.

900 S.W.2d 257
CourtMissouri Court of Appeals
DecidedJune 27, 1995
DocketNo. 65297
StatusPublished

This text of 900 S.W.2d 257 (Landmark Systems, Inc. v. Delmar Redevelopment Corp.) 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
Landmark Systems, Inc. v. Delmar Redevelopment Corp., 900 S.W.2d 257 (Mo. Ct. App. 1995).

Opinion

WHITE, Judge.

Landmark Systems, Inc. (Landmark) brought an action against Taco Bell Corporation (Taco Bell) and others1 seeking to enforce a mechanic’s lien on real property located at 626 North Kingshighway in the City of St. Louis, Missouri. Landmark also sought recovery in quantum meruit for the reasonable value of the labor and materials supplied by Landmark for the improvement of the property. The trial court awarded judgment in favor of Taco Bell on the ground Landmark had not complied with the notice provisions of § 429.012 RSMo 1986 and found Taco Bell had not been unjustly enriched. Landmark appealed. We affirm.

For purposes of appeal, the facts are as follows. On June 13,1989, Taco Bell entered into a purchase agreement with Del-Mar Redevelopment Corporation (Del-Mar) for real property located in the City of St. Louis, Missouri. Taco Bell agreed to purchase the property for $300,000. Thereafter, Taco Bell engaged Giles Engineering Associates, Inc. to conduct soil tests at the property. The tests revealed a significant level of soil contamination. Upon discovery of the soil contamination, Taco Bell had the right to cancel the purchase agreement. However, Taco Bell and Del-Mar entered into renegotiations regarding the contamination problem and on December 20, 1989 entered into an Amendment to Purchase Agreement providing Del-Mar would contract for the clean-up of the contaminated soil. The amendment further provided Taco Bell would withhold $40,000 from the purchase price until receipt of notification from the Missouri Department of Natural Resources stating development could proceed on the property.

On the same day, Landmark entered into an agreement with Union Sarah Economic Development Corporation2 (Union Sarah) for removal and replacement of the contaminated soil on the property. The agreement did not have a fixed price. Instead it provided a price per cubic yard of soil with no amount of soil specified. It is undisputed Del-Mar was the owner of the property at the time the contract was executed. Taco Bell did not order the labor performed or materials supplied by Landmark. It did not negotiate for, authorize, supervise or monitor the same, or participate in any meaningful way in the contract formation or performance.

On December 22,1989, Taco Bell paid Del-Mar $260,000, withholding $40,000 as agreed, and purchased the property. Landmark began furnishing labor and materials on the property on January 2, 1990 and continued thereafter until January 15, 1990. On January 9,1990, representatives of Landmark and Del-Mar met at the property. As a result of this meeting, Landmark was authorized to remove and replace substantially more soil than originally contemplated. No representatives of Taco Bell were at this meeting.

On January 17,1990, Landmark presented Del-Mar with a final invoice in the amount of $110,295 based on the amount of contaminated soil actually removed from the property. On April 12, 1990, Del-Mar proposed a payment schedule to Landmark, which involved paying it the $40,000 previously withheld from the purchase price of the property and making three additional payments over a period of three months. On April 27, 1990, Taco Bell released the $40,000 previously withheld from the purchase price of the property and, at the request of Landmark, Taco Bell’s check was made payable to Del-Mar and Landmark jointly. Del-Mar did not make any additional payments to Landmark [261]*261pursuant to the letter of April 12, 1990. When additional payment was not forthcoming, Landmark filed a ten-day notice of intent to file a mechanic’s lien pursuant to § 429.012. This notice was timely served on Del-Mar and Taco Bell. Landmark subsequently filed a mechanic’s hen against the property and, on July 29, 1990, brought this lawsuit against Del-Mar and Taco Bell to recover the balance of $70,295 for soil removal and replacement on the property.

After a non-jury trial, the court found Landmark was not entitled to enforce its mechanic’s hen because it had failed to supply the statutory notice as required by § 429.012.3 The court also found Taco Bell was not unjustly enriched by Landmark’s performance and, therefore, Landmark was not entitled to rehef in quantum meruit.

Landmark argues, in its first point on appeal, the trial court erred in ruling the notice referred to in § 429.012 was required because Taco Bell is a large corporation sophisticated in the areas of real estate and construction. As such, Landmark contends, Taco BeU had knowledge of the mechanic’s hen law and, therefore, Landmark’s failure to comply with the statute’s notice provision should not bar a mechanic’s hen on the subject property. Landmark rehes primarily upon Overberg Decorating Center v. Selbah Properties, 741 S.W.2d 879 (Mo.App.E.D. 1987) in support of its argument. We find Overberg distinguishable from the present ease. Namely, in Overberg, notice substantially equivalent to the statutory language was given and this was the basis of our decision. Id. at 881. In the present case, Landmark does not contend it substantially complied with the mandated statutory language of § 429.012.4 In addition, this court’s noting in Overberg of the owner’s extensive involvement in real estate development was not dispositive, but merely provided “further support” for our holding. Id.

It is true, as Landmark suggests, the purpose of § 429.012 is to “warn inexperienced property owners of the danger to them which lurks in the mechanic’s lien statute.” BCI Corp. v. Charlebois Const. Co., 673 S.W.2d 774, 779 (Mo. banc 1984). However, this court is also aware the requirements of our statute are mandatory. White River Dev. v. Meco Systems, 806 S.W.2d 735, 738 (Mo.App.S.D.1991). The statute does not limit the necessity of this notice to those inexperienced with, or having lack of knowledge about, the mechanic’s lien laws. Id. The statute has no exceptions and this court will not accept the invitation to create an exception in this case. Additionally, as noted in White, allowing a hen where there was not substantial compliance with the notice provision contained in § 429.012 would add another issue to each mechanic’s hen case, namely the extent of the property owner’s knowledge [262]*262of the mechanic’s lien laws. Id. The fact such an exception was not incorporated into the statute indicates the legislature did not intend such a result. Id. Landmark failed to give the required statutory notice to Taco Bell and, therefore, the trial court properly found it was not entitled to a mechanic’s lien against the property. Point denied.

In its second point on appeal, Landmark argues “the trial court erred in ruling Landmark was an original contractor” and, as such, was required by § 429.012 to comply with the statute’s notice provision. Landmark specifically argues, instead, it was a subcontractor and, thereby, excused from the statute’s notice requirement.

An original contractor is one who makes a contract to perform labor or furnish materials with the then owner of the property. Morgan Wightman Supply Co. v. Smith,

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Related

White River Development Co. v. Meco Systems, Inc.
806 S.W.2d 735 (Missouri Court of Appeals, 1991)
Forry v. Department of Natural Resources
889 S.W.2d 838 (Missouri Court of Appeals, 1994)
Home Building Corp. v. Ventura Corp.
568 S.W.2d 769 (Supreme Court of Missouri, 1978)
Vasquez v. Village Center, Inc.
362 S.W.2d 588 (Supreme Court of Missouri, 1962)
BCI Corp. v. Charlebois Construction Co.
673 S.W.2d 774 (Supreme Court of Missouri, 1984)
International Paper Co. v. Futhey
788 S.W.2d 303 (Missouri Court of Appeals, 1990)
Overberg Decorating Center, Inc. v. Selbah Properties
741 S.W.2d 879 (Missouri Court of Appeals, 1987)
Morgan Wightman Supply Co. v. Smith
764 S.W.2d 485 (Missouri Court of Appeals, 1989)

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Bluebook (online)
900 S.W.2d 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landmark-systems-inc-v-delmar-redevelopment-corp-moctapp-1995.