Winters Excavating, Inc. v. Wildwood Development, L.L.C.
2011 Mo. App. LEXIS 717
Mo. Ct. App.2011Background
- Winters Excavating performed excavation work for Diamond Pointe development as a subcontractor to CED under time-and-materials and fixed-price subcontracts, with total due language of $520,084.95.
- Wildwood terminated CED as general contractor on October 19, 2005; CED notified Winters of termination and its own termination, requesting final invoicing.
- Winters continued work at Wildwood's direction after CED's termination, ultimately completing work through March 2007, with Winters invoicing Wildwood (and Diamond Pointe Development, LLC) but receiving payment from Wildwood.
- Winters began issuing computer-generated invoices in August 2006 that included a ten-point notice to owner on the reverse side, pursuant to section 429.012; prior invoices lacked such notice and were paid.
- Winters filed a mechanic's lien on June 21, 2007 for $268,381.06 against the property; the real estate later passed from Wildwood to First Bank and then to Reinvestment Enterprises, L.L.C.
- Trial court held Winters did not provide the required section 429.012 notice as an original contractor, rendering the lien invalid, and entered judgment in Winters' favor on quantum meruit against Wildwood for the excavating services.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Winters was an original contractor required to give notice to owner. | Winters claims it acted as original contractor after CED's termination and was not obligated to assign subcontracts. | Court found Winters remained under original contract framework, requiring owner notice under 429.012. | Winters failed notice; lien invalid. |
| Whether Wildwood assumed Winters's CED subcontracts after termination. | Winters argues Diamond Pointe Development, LLC or Wildwood assumed the CED subcontracts. | Evidence showed no assignment or assumption of CED subcontracts by Wildwood; Winters then acted as original contractor. | No evidence of assignment; no assumption; holding stands. |
| Whether the notice given on August 2006 invoices satisfied section 429.012 obligations. | Winters contends notice on new invoices, issued after CED termination, complied with requirements for original contractor. | Notice must occur prior to payment and within the original contractor framework; not properly established as to original contractor status. | Not sufficient to cure missing original-contractor notice. |
Key Cases Cited
- Bullmaster v. Krueger, 151 S.W.3d 380 (Mo.App.2004) (standard for reviewing mechanic's lien evidence)
- Dave Kolb Grading, Inc. v. Lieberman Corp., 837 S.W.2d 924 (Mo.App.1992) (notice requirements depend on contractor status)
- Glenstone Block Co. v. Pebworth, 264 S.W.3d 703 (Mo.App.2008) (appellate review of lien-law questions; substantial compliance standard)
- Lake Ozark Constr. Inds., Inc. v. Osage Land Co., L.L.C., 168 S.W.3d 471 (Mo.App.2005) (mechanic's liens; liberal construction but substantial compliance required)
- Midwest Floor Co. v. Miceli Dev. Co., 304 S.W.3d 243 (Mo.App.2009) (owner/contractor knowledge and lien rights; notice considerations)
- Bledsoe Plumbing & Heating, Inc. v. Brown, 66 S.W.3d 169 (Mo.App.2002) (owner notice and lien enforceability standards)