In this mechanic’s hen action, the parties appeal from the trial court’s judgment entered in favor of the hen claimant. The trial court awarded the claimant a mechanic’s hen, but awarded a hen amount that was less than requested. The excluded amount, found nonhenable by the trial court, represents charges for grading and excavating equipment while such equipment sat idle due to a shut-down caused by nonpayment by the general contractor. In addition to the mechanic’s hen, the trial court also awarded the claimant interest on the hen amount. The bank, which holds an interest in the land that is inferior to claimant’s, appeals. The hen claimant cross-appeals. The parties present a number of issues for our determination, including a matter of first impression. To guide the reader, we set out the parties’ challenges in some detail, here at the outset.
The appellant bank alleges error in both the trial court’s award of a mechanic’s hen *494 and its award of interest. As to the trial court’s award of a mechanic’s hen, the bank raises two general, multi-faceted, challenges. First, the bank contends the trial court erred in not vitiating the claimant’s lien in its entirety. It maintains that the hen claim is not a “just and true account,” as required by Missouri’s mechanic’s hen statute, because the claimant could not provide a consistent, total principal amount of the hen and because the claimant included nonlienable items in its claim. Second, the bank alternatively argues that if the claim is not entirely disallowed, then the principal amount of the hen should be reduced. It argues for both a lower starting-point for the calculations of the principal hen amount as well as an increased value of the excluded “downtime” charges. As to the trial court’s award of interest, the bank first contends that trial court erred in awarding any prejudgment interest because the hen claim was unliquidated. Secondly, the bank alternatively argues that even if an award of interest is proper, the trial court nevertheless chose an incorrect date from which to calculate the interest due.
The hen claimant cross-appeals, challenging the trial court’s exclusion of the “downtime” charges as part of the awarded lien. The claimant argues that the charges are henable through retroactive application of the amended mechanic’s hen statute. The claimant also contends that the charges are henable as “labor,” and urges us to hold, as an issue of first impression, that charges for equipment during periods of nonuse are henable under Missouri law as labor costs.
We reject each and every contention raised by the parties and affirm the trial court’s judgment.
Factual and Procedural Background
Missouri Land Development Specialties, LLC, the hen claimant in this ease, is an excavating and blasting company. The company was retained in August of 2004, on a time-and-material basis, to render grading, excavating and other land-related construction services on a certain tract of land being developed as the Woods Mill Subdivision in St. Charles County. The tract of land was owned at that time by Woods Mill Development Company, LLC, which retained Concord Excavating Company, LLC, as the general contractor on the project. Concord Excavating, in turn, with the knowledge and consent of the landowner, retained the hen claimant as a subcontractor on the project. The hen claimant worked on the Woods Mill Subdivision project from mid-August 2004 until October 22, 2004. It then shut down work on the project due to nonpayment by the general contractor, but kept its equipment onsite for a period of time. No operators were present on the jobsite during this shutdown time. The hen claimant eventually moved the equipment off the jobsite, doing no further work on the property after the shutdown.
The hen claimant filed its mechanic’s hen claim on January 5, 2005, approximately one month after serving the landowner with a ten-day notice of intent to hen. On the face of the hen claim, the claimant stated that it was filing the attached account “for work and labor done and material furnished” by the claimant under contract with the general contractor, “upon, to and for the buddings and improvements” at the Woods Mill Subdivision. The hen claimant attached the contract and a number of unpaid invoices with supporting documentation to its hen claim. The claimant listed the principal amount due as $628,595.43.
Over one month later, on February 14, 2005, the hen claimant filed its petition to enforce its mechanic’s hen claim. The *495 claimant named the landowner and the general contractor as defendants. The claimant also named FirstService Bank, cestui que trust, and Thomas Cummings, trustee, as defendants having an interest in the real estate at issue. FirstService Bank was the lender for the project. FirstService Bank, cestui qui trust, and Thomas Cummings, trustee (hereinafter collectively referred to as FirstService Bank or bank) held a Construction Deed of Trust and a Modification of Deed of Trust on the parcel of land at issue. The claimant’s petition included three counts related to the Woods Mill subdivision project: (1) a breach-of-contract action against the general contractor; (2) a mechanic’s lien action; and (3) a quantum-meruit action against the landowner. As to the mechanic’s lien action, the claimant alleged that the amount due for the labor and materials it furnished under contract with the general contractor for the project, after allowing all just credits and setoffs, was $628,595.48.
After a period of discovery, the parties proceeded to a bench trial. The lien claimant presented the live testimony of Clayton Francois, its president. The claimant also introduced the lien claim with all the attached invoices and supporting documentation. FirstService Bank presented neither live witnesses nor deposition testimony in its defense and introduced only one document into evidence — a one-page, undated and untitled document resembling a statement, which the lien claimant had produced in response to the bank’s discovery request. The document lists a number of invoices, dated September through November of 2004, for blasting and excavating services. The document reflects partial payment of the invoices and then shows the grand total of the invoices to be $615,021.92.
Mr. Francois, for the lien claimant, began his testimony by explaining the type of work his company was hired to provide at the Woods Mill subdivision project under its contract with the general contractor. He then went through each of the invoices attached to the claimant’s lien claim, explaining the charges, and confirming the unpaid amount due on each invoice. Of particular importance is an invoice dated November 20, 2004, on which the following notation appears at the top of the second page:
Losses due to shut down of job. Expenses remaining on standby per Eric due to payment not yet received.
The bottom of the second page of this invoice shows a subtotal due of $62,288.65. Mr. Francois stated that of all the listed invoice items, only the first four line-items on the second page were from the shutdown. These charges are ascribed to one dozer, two thirty-ton trucks, one excavator, and one 953 high lift. Mr. Francois testified that although this machinery was sitting idle on the jobsite, with no operators, the claimant was still paying rent on the machinery. Mr. Francois further testified that Eric Johnson, on behalf of the general contractor, had told him that the general contractor would pay the claimant’s expenses, including the rent on the machines, while the claimant awaited payment. Mr. Francois also acknowledged that this equipment was later moved off the jobsite, doing no further work on the property after the shutdown. The charges for these particular pieces of equipment total $50,538.65.
As to the total amount of the lien claimant’s claim, Mr. Francois initially testified that the claimant was requesting a mechanic’s hen on the Woods Mill subdivision in the principal amount of $627,987.92, the same amount reflected on a trial exhibit prepared by counsel for the hen claimant. Later during trial, the parties recalculated the various invoices included in the hen *496 claim, and agreed that the sum of the unpaid invoices was $624,987.92.
The trial court entered judgment in favor of the hen claimant. The trial court first entered a money judgment against the general contractor for $953,106.58, representing the balance due on the lien claimant’s unpaid invoices, plus interest and attorney’s fees. Secondly, the trial court awarded the lien claimant a mechanic’s hen on the real estate at issue. The trial court found that the charges hsted on the unpaid invoices attached to the claimant’s hen claim were all reasonable, except for $50,538.65 which the court found was not lienable. Consequently, the trial court awarded a mechanic’s hen, in accordance with the unpaid invoices, in the lesser principal sum of $574,449.27, not $624,987.92 as requested. The excluded amount of $50,538.65 equals the total of charges for the above-described pieces of equipment during “downtime” — the period during which the equipment sat idle and shut down because of nonpayment by the general contractor. Lastly, the trial court awarded the hen claimant interest at 9% per annum on the hen amount of $574,449.27, calculated from October 22, 2004 through November 15, 2006, the date of judgment.
FirstService Bank, which holds an interest inferior to the hen claimant, appeals the decision of the trial court; and the hen claimant cross-appeals. 1 As noted above, the parties advance multi-faceted challenges to the trial court’s award of a mechanic’s hen.
Discussion
Standard of Review
As this is a court-tried case, our review is under the principles articulated in
Murphy v. Carron,
Mechanic’s Lien
Just and True Account
We first address FirstService Bank’s initial contention that the trial court erred in *497 not vitiating the claimant’s mechanic’s lien in its entirety. The bank contends the lien claim should be entirely disallowed because it was not a “just and true account” as required by Missouri’s mechanic’s lien statute in that: (1) the claimant could not provide a true, consistent, total principal amount of the lien; and (2) the claimant included nonlienable items in its claim.
Chapter 429 of Missouri’s Revised Statutes addresses Missouri’s mechanic’s hen law. Section 429.080 requires, in part, that to obtain a valid hen, a claimant must file a “just and true account” of the demand due the claimant.
2
Dave Kolb Grading, Inc. v. Lieberman Corp.,
A “just and true account,” as that term is used in Section 429.080, is not defined by statute. Nor is there a precise definition of this statutory requirement in prior appellate decisions that have considered the question. Rather, whether a lien statement is a “just and true account” depends on the particular facts of each case.
Sears, Roebuck & Co. v. Seven Palms Motor Inn, Inc.,
Stated Amount of Lien
FirstService Bank first contends that the claimant did not provide a “just and true account” of its lien claim because the claimant was unable to provide a consistent principal amount for which it sought a lien. The bank complains that when the claimant filed its lien claim, the face of the claim showed a balance due of $628,595.43, but that the claimant then provided a discovery response showing the amount due and owing for the hen as $615,021.92. Continuing, the bank then notes that, without supplementing its discovery response, the claimant produced a *498 trial exhibit, and corresponding testimony at trial, indicating a principal lien amount of $627,987.92, but then reduced that amount to $624,987.92 upon cross-examination. The bank insists that the claimant’s inability to provide a consistent lien amount left the bank and the trial court with “little idea” as to the “true amount” of the claimant’s lien. The bank contends that the claimant’s lien claim should be entirely disallowed due to these changing lien amounts. We reject the bank’s argument.
The claimant submitted a total of eighteen invoices, with supporting documentation, when it filed its hen claim. The exact principal sum of those invoices is $624,987.92. Moreover, to the extent FirstService Bank complains about the claimant providing a lien amount of $615,021.92, the bank is complaining about a discovery response, not the hen claim filed by the claimant. And any complaint by the bank about the claimant’s failure to amend its discovery response is not preserved for appeal because no such complaint was lodged in the trial court until after trial. Furthermore, Mr. Francois, on behalf of the claimant, testified that the discovery response was missing a notation as to just one invoice, which was for various hours of machine work. This invoice had been included in the hen claim filed by the claimant, and showed a total amount due of $9,966. Adding this amount due to the $615,021.92 shown due on the discovery response renders a grand total due of $624,987.92, the exact amount of all the unpaid invoices attached to the hen claim. As to the claimant’s trial exhibit, counsel acknowledged that he had made mathematical errors in preparing the exhibit, which summarized the various invoices included in the hen claim. Counsel stated he prepared the exhibit merely as an aid and courtesy for the court, to help it keep track of the various invoices while listening to the trial testimony. Again, during trial, the parties recalculated the various invoices included in the hen claim, and agreed that the sum of the unpaid invoices was $624,987.92.
Arithmetic errors, errors of computation, inadvertence, or mistake in the preparation of the account, where there is no showing of the lienor’s bad faith, should not defeat the hen.
Banner Lumber Co. v. Robson,
Inclusion ofNonlienable Items
FirstService Bank also contends that the claimant’s hen claim was not a “just and true account” because the claimant included nonlienable items in its hen claim. In particular, the bank complains *499 about the claimant’s inclusion of a $62,288.65 charge for the time that the claimant’s equipment sat idle on the property, with no operators, and without doing any grading or excavating. The bank argues that this “downtime” charge is non-lienable because the claimant was neither performing “work or labor upon” the property, nor providing any “benefit or improvement” to the property, as required by Missouri law. The bank contends that the claimant’s lien claim should be entirely disallowed due to the inclusion of this non-lienable charge. We reject the bank’s flawed and insufficient argument.
The parties ardently dispute whether the complained-of “downtime” charges are lienable. We are called upon to decide the issue, but need not reach it here to resolve the bank’s assertion because even if we presume that the charges are nonlienable, it has long been recognized that including nonlienable items in a lien statement does not necessarily vitiate the entire lien. A lien statement may be regarded as “ ‘just and true,’ so as not to vitiate the entire lien, if the inclusion of a nonlienable item is the result of honest mistake or inadvertence without intent to defraud and if the nonlienable [item] can be separated from the lienable items.”
Seven Palms Motor Inn,
“Downtime” Charges
While it was unnecessary for us to address the issue of the lienability of the “downtime” charges in order to dispose of the bank’s claim, we must confront the question to decide the hen claimant’s cross-appeal. Essentially, the hen claimant advances two arguments as to why the “downtime” charges are henable in this case. First, the claimant contends that the charges are henable through retroactive application of the amended statutory language of Section 429.010. Second, the claimant contends that the charges are henable as “labor.” We address each contention in turn.
Retroactive Application of Statute
Mechanic’s hens were unknown at common law and exist purely as a creature of statute.
Bush Construction Machinery, Inc. v. Kansas City Factory Outlets, L.L.C.,
*500 Section 429.010 delineates the circumstances that create a Hen. When the Hen at issue accrued in 2004, the statute provided, in relevant part, as follows:
Any person who shaH do or perform any work or labor upon, or furnish any material, ... for any building, erection or improvements upon land, or for repairing the same, ... under or by virtue of any contract with the owner ... thereof, or his ... contractor ... upon complying with the provisions of sections 429.010 to 429.340, shall have for his work or labor done, or materials, ... furnished, ... a Hen upon such building, erection or improvements, and upon the land belonging to such owner ... on which the same are situated, ... to secure the payment of such work or labor done, or materials ... furnished ....
Section 429.010 RSMo (2000). The General Assembly, however, amended this section in 2005, to read in relevant part, as follows:
Any person who shall do or perform any work or labor upon, rent any machinery or equipment, or furnish any material, ... for any building, erection or improvements upon land, or for repairing, grading, excavating, or filling of the same, ... under or by virtue of any contract with the owner ... thereof, or his ... contractor ... upon complying with the provisions of sections 429.010 to 429.340, shall have for his ... work or labor done, machinery or equipment rented or materials ... furnished, ... a Hen upon such building, erection or improvements, and upon the land belonging to such owner ... on which the same are situated, ... to secure the payment of such work or labor done, machinery or equipment rented, or materials ... furnished .... For claims involving the rental of machinery or equipment, the lien shall be for the reasonable rental value of the machinery or equipment during the period of actual use and any periods of nonuse taken into account in the rental contract, while the equipment is on the property in question. There shall be no lien involving the rental of machinery or equipment unless:
(1) The improvements are made on commercial property;
(2) The amount of the claim exceeds five thousand dollars; and
(3) The party claiming the lien provides written notice within five business days of the commencement of the use of the rental property to the property owner that rental machinery or equipment is being used upon their property. Such notice shall identify the name of the entity that rented the machinery or equipment, the machinery or equipment being rented, and the rental rate.
Section 429.010 RSMo (2005 Supp.). 3 We have emphasized the amendments to the statute; in all other respects, the language of the amended statute is the same as the prior version of the statute.
The legislature’s amendment to Section 429.010 followed at some distance the appellate court’s decision in
Bush Construction Machinery, Inc. v. Kansas City Factory Outlets, L.L.C.,
The lien claimant here urges for retroactive application of the amended statute to the instant case, and argues that the amended statute supports its contention that the contested “downtime” charges in this case are lienable. The claimant argues that the statute means that charges for a period of nonuse of equipment are lienable by the equipment lessor. The claimant acknowledges that this case does not involve an equipment lessor, but nevertheless argues, in conclu-sory fashion, that the amendment should be applied here, where there is a contract for labor and equipment and not just the provision of the rented machinery. We are unpersuaded.
We need not embark on a protracted analysis of whether the amended statute may be applied retroactively. For, even if we were to conclude that the amended statute could be so applied, this would provide no assistance to the claimant in its quest to have the “downtime” charges included in the awarded lien. We initially note that, as written, the language at the beginning of the amended statute — “[a]ny person who shall ... rent ... ” — could be viewed as applying to both lessors and lessees of machinery and equipment. Such is the nature of the word “rent.” Given, however, that the legislature amended the statute following this court’s call in Bush for the legislature to consider whether a hen for lessors of machinery is desirable, it is arguable that the amended language was meant to provide hens only for the lessors of equipment. And in this case the hen claimant is not a lessor, but rather a lessee. However, even if we did read the amended statutory language as encompassing lessees, the hen claimant still cannot escape the language in the latter part of the amended statute. This language provides that the hen shall be “for the reasonable rental value of the machinery ... during the period of actual use and any periods of nonuse taken into account in the rental contract.” (Emphasis added). The statute plainly and clearly refers to the rental contract — or in other words, the contract between the lessor and lessee, not the contract at issue between the hen claimant, as a subcontractor, and the general contractor. Indeed, the rental contract here is not even a part of the record. In sum, the amendments to Section 429.010, even should they apply retroactively, still would not allow the charges at issue to be henable in this case. This does not conclude our consideration of the issue, however, for we must proceed to determine if the statute otherwise provides that the “downtime” charges are henable as “labor.”
“Downtime” Charges as “Labor”
The hen claimant aheges that the costs for “downtime” or nonuse of machinery and equipment, when provided for in a contract, are henable as “labor” that is used, entered or consumed in the improvement of real estate subject to a mechanic’s lien. We reject the claimant’s contention because the “downtime” charges here do not come within the plain and ordinary-meaning of the term “labor,” and because we find the facts of this case distinguishable from those cases that find equipment or “downtime” charges henable as labor costs.
Broadly stated, Section 429.010 provides that any person who performs “labor upon ... any building, erection or improvements upon land ...” shah have a hen for his labor done. When interpreting a statute, we are to “ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordi
*502
nary meaning.”
State ex rel. Evans v. Brown Builders Elec. Co., Inc.,
It is well-established that the mechanic’s hen law of Missouri is remedial in nature.
R.L. Sweet Lumber Co. v. E.L. Lane, Inc.,
The claimant argues this is a “labor and machinery” case. Specifically, the claimant contends that the courts of this state have consistently ruled that the costs for equipment in excavation work are lienable, where the contract also called for the provision of labor. The claimant notes that, under its contract with the general contractor, it provided labor along with the excavating equipment. Thus, the claimant argues, the “downtime” costs for equipment are lienable because the value of the equipment furnished, including the value of the time of nonuse, was a part of the labor cost that ultimately produced the improvements to the property.
We recognize there is precedent for the proposition that a lien is permissible for equipment where both labor and machinery are furnished on a construction site. Liens for grading and excavating work, held proper by the court, have included the costs of equipment.
See Vasquez v. Village Center, Inc.,
The lien claimant cites decisions from other states to support their argument that the “downtime” charges in this case should be lienable as “labor.” Our Supreme Court has warned of the danger of relying upon decisions of other states in interpreting Missouri’s mechanic’s hen law. As the Court cogently cautioned, “[t]he points of dissimilarity [between the law of Missouri and the laws of other states] must be clearly borne in mind to avoid the error of applying, to the interpretation of our own statute, decisions of other states construing language quite different.”
Henry & Coatsworth Co. v. Evans,
The claimant principally relies on the federal court’s decision in
Prepakt Concrete Co. v. Fidelity & Deposit Co. of Md.,
$45.00 per hour after the claimant moved its men and equipment onto the site for any time during which the claimant was unable to work because of circumstances beyond its control.
Prepakt,
The hen claimant here also relies on the Texas court’s decision in
McClellan v. Haley,
We also note the decision of the Kansas Supreme Court in
Skinner v. Quadrangle Oil Co.,
It is further understood and agreed, by and between the parties to this contract, that in the event of a shutdown, at the request of the parties of the second part, the first parties shall receive the sum of $30.00 per day, provided, however, that the shutdown is cause by the failure of the parties of the second part to furnish the necessary equipment such as casing, and other necessary equipment to be furnished by the parties of the second part; then and in that event said parties of the first part shall receive $80.00 per day during such shutdown or delay.
Skinner,
The defendants in Skinner argued that because liens are given for improvements made to property, no lien could attach because nothing was added to the well during the “waiting time.” The court rejected this argument, holding that compensation for “waiting time” may be included in a lien, where the contract provides that the driller shall be paid for such time. The court stated that “[tjime must be considered as a part of the labor necessary to drill the well.” Id. The court reasoned that “[i]n such work, delays must occur, and labor, not directly connected with the well, must be performed before the well can be completed. All becomes a necessary part of the labor in putting down the well, and the statute contemplates that a lien shall attach for all that is necessary to be done, including waiting for supplies and time lost when operations are shut down on account of the fault of the owner.” Id.
We set forth these decisions in some detail to highlight three significant circumstances that render these out-of-state cases readily distinguishable from our circumstances. First, in these other cases the contracts directly spoke to payment for periods of inactivity. Specifically, in the Prepakt and Skinner cases, the contracts provided for an hourly or daily rate to be paid for any downtime periods. 4 Contrary to the lien claimant’s assertions, the contract in our case is unlike these other contracts. 5 The contract here reads, in pertinent part, as follows:
*505 (12) If equipment is stopped for insufficient payment reasons, substantial restart or remobilization fees will apply to compensate Missouri Land Development for lost time, movement of equipment and explosives, and re-permitting
The lien claimant contends this provision shows that charges for “downtime” are provided for in the contract. But it is a far leap to conclude that “downtime” charges should be classified as “labor” from this contractual provision. This contract provides for restart fees after a shutdown; it does not otherwise provide for payment for periods of inactivity. It certainly does not speak to any hourly or daily rates to be paid for any downtime periods, as was present in the out-of-state cases. We cannot say, based on the language of this contract provision, that the parties contemplated payment for charges that accrued during periods of inactivity.
The contractual language is not the only point of distinction. We also note that in Prepakt, the men were on-site during the downtime; that is not the case here. And thirdly, the lien claimants in these other cases resumed work after the period of inactivity; that is also not our case. In light of these distinctions, we do not conclude that the value of downtime here was “part of the labor cost which ultimately produced the building under construction,” as held by the Prepakt court. Nor can we say that the downtime here was merely a “delay” that “must occur” as a “necessary part of the labor” in completing the project, as held by the Skinner court.
The bank contends the accrued charges are not lienable because the lien claimant was neither performing “work or labor upon” the property, nor performing a service during the shut-down time that provided a “benefit or improvement” to the property. After all, the bank argues, the machines were sitting idle, without any operators, and then were removed from the job site, performing no further work on the property. Considering the general principles of mechanic’s hen law, this argument is sound. Broadly stated, in order for a person to have a mechanic’s hen upon a particular property, the work, labor, and materials comprising the source of the hen provided to the property must have “actually entered” or “went into” or were “used in” the construction of an improvement on the property that is the subject of the hen.
Kansas City Elec. Supply Co. v. Bomar Elec. Co., Inc.,
We note the Arizona Supreme Court’s decision,
Kerr-McGee Oil Industries, Inc. v. McCray,
The Arizona Supreme Court held that he claimant was not entitled to a lien for this stand-by time.
Kerr-McGee,
We are mindful that Missouri’s mechanic’s lien laws are remedial in nature and should be liberally construed in favor of the one seeking the lien. However, there are limits to this policy of liberal interpretation. Such interpretation comes only after it is clear that a mechanic’s lien is appropriate.
Bush,
Principal Amount of Lien
We are left, then, with the question regarding the principal amount of the lien. The bank contends that in the event the claimant’s mechanic’s lien is not vitiated in its entirety, then the principal amount of the lien should be reduced. The bank argues for both a lower starting-point for the calculations of the principal lien amount as well as an increased value of the excluded “downtime” charges — the effect of both would be to reduce the *507 amount of the mechanic’s lien awarded. The bank first contends that, because the lien claimant never supplemented its discovery responses, the trial court should have limited the principal amount of the lien to the amount shown on the alleged discovery response — $615,021.92—before making deductions for nonlienable items, rather than using $624,987.92 as the starting point for the court’s calculations of the lien award. Again, the bank’s complaint regarding the lien claimant not amending its discovery responses is not preserved for appeal. A value of $624,987.92 is supported by the evidence, as well as the parties’ agreement at trial. As to the value of the excluded “downtime” charges, the bank maintains that the trial court erred in finding the nonlienable items to be valued at only $50,538.65. The bank maintains that the evidence at trial indicated the value of the nonlienable items to be $62,288.65. The bank’s argument is without merit. Mr. Francois testified that only four items had to do with the shutdown. The sum total of these “downtime” charges comes to $50,538.65.
Thus, the trial court did not err in not vitiating Missouri Land Development’s mechanic’s lien in its entirety for failure of the lien claimant to file a just and true account. Nor did the trial court err in excluding the $50,538.65 “downtime” charges as nonlienable. And lastly, the trial court’s calculations as to the principal amount of the lien, and the amount of the excluded charges is supported by substantial evidence.
Prejudgment Interest
We now turn to the issue of prejudgment interest, which was to accrue at 9% simple interest per annum on the hen balance due, calculated from October 22, 2004 through November 15, 2006, the date of judgment. Again, FirstService Bank first alleges that the trial court erred in awarding any prejudgment interest at ah; and second, the bank alleges that even if the trial court properly awarded interest, the trial court erred in its choice of October 22nd as the date from which to calculate the interest due.
Award of Interest
FirstService Bank alleges that the trial court erred in awarding prejudgment under Section 408.020 because the claimant’s hen claim was unliquidated in that it was not fixed and determined, readily determinable, or ascertainable by computation.
6
However, first, there is simply no indication that the trial court awarded prejudgment interest pursuant to Section 408.020. And second, the bank ignores the mechanic’s hen law of this state, in particular, Section 429.210. That section provides that the trial court may render judgment “in any sum not exceeding the amount claimed in the demand filed with the hen,
together with interest
and costs.... ” Section 429.210 (emphasis added). An award of prejudgment interest on a mechanic’s hen claim is mandatory once the trial court assesses the principal amount due on such a claim.
Monia,
Date for Interest
FirstServiee Bank next alleges that the trial court erred in awarding prejudgment interest from October 22, 2004, because proper demand was not made until the claimant filed its mechanic’s lien on January 5, 2005. The bank did not advance this argument to the trial court. At no time did the bank suggest, request, or argue that prejudgment interest should be calculated from January 5th. Rather, the bank argued in its post-trial memorandum that interest calculations should commence from December 20, 2004. We will not convict the trial court of error on an issue that was never presented to the trial court for its consideration.
McMahan v. Mo. Dep’t of Soc. Servs.,
We affirm the judgment of the trial court.
Notes
. The lien claimant and FirstService Bank entered into a pre-trial stipulation agreeing that if the lien claimant was awarded a mechanic’s lien, then that lien would have priority over FirstService Bank’s interest as to the land and its improvements.
. Section 429.080, in its entirety, reads as follows:
It shall be the duty of every original contractor, every journeyman and day laborer, and every other person seeking to obtain the benefit of the provisions of sections 429.010 to 429.340, within six months after the indebtedness shall have accrued, or, with respect to rental equipment or machinery, within sixty days after the date the last of the rental equipment or machinery was last removed from the property, to file with the clerk of the circuit court of the proper county a just and true account of the demand due him or them after all just credits have been given, which is to be a lien upon such building or other improvements, and a true description of the property, or so near as to identify the same, upon which the lien is intended to apply, with the name of the owner or contractor, or both, if known to the person filing the lien, which shall, in all cases, be verified by the oath of himself to some credible person for him.
. The General Assembly again amended this statutoiy section, in 2007, providing that the three requirements for a lien involving the rental of machinery equipment, enumerated at the close of the statutory section, shall not apply to persons who use rented machineiy or equipment in performing the work or labor described earlier in the section.
. We recognize that the terms of the parties’ contract in the McClellan case are not provided in the court’s decision. However, it is apparent from the court’s language that the parties specifically contracted against lost time.
. Specifically, the lien claimant states that its contract is the same as the contract in the *505 Prepakt case. Clearly, this is not the case. We remind counsel of their duty of candor to this Court.
. Section 408.020 provides that creditors will be allowed to receive interest “for all moneys after they become due and payable, on written contracts ... after they become due and demand of payment is made....” As a general rule, in order for prejudgment interest to be awarded under this section, the claim for damages must be liquidated.
Watters v. Travel Guard, Int’l,