Manning Construction Co. v. MCI Partners, LLC

419 S.W.3d 134, 2013 WL 5903179, 2013 Mo. App. LEXIS 1319
CourtMissouri Court of Appeals
DecidedNovember 5, 2013
DocketNo. WD 75284
StatusPublished
Cited by2 cases

This text of 419 S.W.3d 134 (Manning Construction Co. v. MCI Partners, LLC) 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
Manning Construction Co. v. MCI Partners, LLC, 419 S.W.3d 134, 2013 WL 5903179, 2013 Mo. App. LEXIS 1319 (Mo. Ct. App. 2013).

Opinion

ALOKAHUJA, Judge.

Appellant Manning Construction Company filed this suit in the Circuit Court of Platte County, seeking to foreclose on a mechanic’s lien arising out of construction work it performed on an office condominium project in Kansas City. Following a bench trial, the circuit court denied relief, based on its determination that Manning’s mechanic’s lien filing was untimely. Manning appeals. We affirm.

Factual Background

The proceedings in the trial court involved numerous parties and claims. On appeal, however, Manning challenges only the trial court’s rejection of its claim seeking to foreclose on its mechanic’s lien. We summarize only the evidence necessary to our disposition of the issues Manning raises.

Respondent MCI Partners, LLC was the owner of the Ambassador Drive Office Condominiums Project in Kansas City (the “Project”). MCI contracted with Watkins & Co. to serve as the broker and developer of the Project. An affiliate of Watkins & Co., Watkins Development Services, LLC (“Watkins”), contracted with Manning to construct three buildings on the Project, in two phases, on a cost-plus basis. Manning ultimately only built one building (Building # 2) before the Project was halted due to MCI’s inability to obtain additional financing. A certificate of substantial completion for Building # 2 was executed by Watkins, Manning and the Project’s architect [136]*136in August 2007. The testimony at trial indicated that Manning completed performance of “punch-list” items on Building # 2 in October 2007.

Manning submitted twelve pay applications for its construction work between January 25, 2007, and April 14, 2008. Manning received full payment on the first nine pay applications, but received only partial payment on applications ten, eleven, and twelve. Manning contends that the total value of its work (including its 3.5% fee) was in excess of $3.3 million, but that it was only paid slightly more than $3.1 million.

Tom Manning met with a representative of Watkins, Tim Ealey, in December 2008 to express his concerns regarding Manning’s unpaid invoices. Tom Manning told Ealey that Manning’s time to file a mechanic’s lien to protect its interests was running short. Ealey requested that Manning not file a mechanic’s hen, because doing so would interfere with Watkins’ efforts to sell condominium units in the Project, and to obtain financing for further construction. Rather than immediately filing a mechanic’s lien, Ealey and Tom Manning instead agreed that Watkins would hire Manning to perform mowing and weed-trimming work on the Project, at a cost of $1,400, to extend Manning’s lien rights. Change of Work Order # 10, reflecting this landscaping work, was issued by Manning and approved by Watkins on December 17, 2008.

Ealey and Tom Manning had a similar conversation in June 2009, when Manning again indicated that it was facing a deadline to file a mechanic’s hen for its unpaid work. Ealey and Tom Manning agreed to Change of Work Order # 11, which authorized Manning to perform landscaping and silt-fence repair at a cost of $1,490, to further extend Manning’s hen-filing deadline.

Manning filed its mechanic’s hen on November 19, 2009. Manning’s hen filing claimed that $195,800.45 remained unpaid for its work on the Project. The hen filing attached Manning’s twelve pay applications; it did not specifically refer to the work Manning performed under Change of Work Orders ## 10 and 11 in December 2008 and June 2009. The hen filing nevertheless claimed that “Manning last furnished labor, materials and services to the Project on June 1, 2009.”

Manning thereafter filed this suit in the Circuit Court of Platte County. Among other things, Manning’s Petition prayed that the court order foreclosure on its mechanic’s hen to enforce its right to payment for its unpaid fees.

The circuit court conducted a two-day bench trial on Manning’s claims. Following trial, the circuit court entered its Findings of Fact, Conclusions of Law and Judgment, which denied Manning’s request to foreclose on its lien. The circuit court held that Manning’s November 2009 hen filing was untimely because it did not comply with the six-month limitations period found in § 429.080, RSMo. The court rejected Manning’s claim that the work it performed under Change of Work Orders ## 10 and 11 extended the six-month hen-filing period. The Judgment explained: [137]*137tamed in two change orders that were not included in the mechanic’s lien. The first change order showed mowing and weed eating in mid-December of 2008. The second change order was for mowing, weed eating and maybe silt fence repair in June of 2009. Manning’s testimony was clear that this work was done solely for the purpose of attempting to extend the mechanic’s lien filing deadlines, by Mr. Manning’s calculation, for about 22 to 28 months after substantial completion of the work called for in the notice to proceed provided by Watkins prior to January 2007.

[136]*136Manning signed a certificate of substantial completion on August 6, 2007 for the work contemplated under the notice to proceed. Testimony at trial indicated that by October of 2007 all of the punch list items had been completed. The last pay application contained in the mechanic’s hen detailing any work on the project is pay application no. 12. The detail page for pay application no. 12 indicates that it was for a period ending March 27, 2008. The only other evidence of any work by Manning at the project after pay application no. 12 was con-
[137]*137The first change order work that Manning relies on to extend its lien rights was performed eight and a half months after the last date of work reflected in the filed mechanic’s lien and fifteen and a half months after the certificate of substantial completion was signed. This was after the lien rights had expired. The second change order was five and a half months later. None of this work was directly related to or improved the building on which Manning seeks to establish its lien. If this court were to establish a hen under these facts lien rights could be extended indefinitely against unsuspecting owners or lenders .... The failure to file the lien within six months of substantial completion bars a mechanic’s lien from being imposed on the completed structure.

The Judgment also finds that the change-order work could not extend Manning’s lien-filing deadline because the work was non-lienable, for the reason that it “did not result in any permanent benefit to the land.”

Manning appeals.

Standard of Review

“Because this is a court-tried case, our review is under the standard set forth in Murphy v. Carron, 586 S.W.2d 30, 32 (1976).” Urban Renewal of KC. v. Bank of N.Y., 289 S.W.3d 631, 634 (Mo.App.W.D.2009). “We will affirm unless the decision is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.” Id.

Analysis

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419 S.W.3d 134, 2013 WL 5903179, 2013 Mo. App. LEXIS 1319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manning-construction-co-v-mci-partners-llc-moctapp-2013.