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Kehrer Brothers Construction, Inc. v. Gire

Court of Appeals of Missouri, Southern District, First Division

November 21, 2014

KEHRER BROTHERS CONSTRUCTION, INC., Plaintiff-Appellant,
v.
EDWIN J. GIRE, and BANK OF VERSAILLES, and KENNETH L. MCCUTCHEON, JR., and BUSEY BANK, Defendants-Respondents

APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY. Honorable Kenneth M. Hayden, Circuit Judge.

For Appellant: Paul U. Puricelli, of St. Louis, Missouri.

Gire, Respondent, Pro se.

For Respondents Bank of Versailles and McCutcheon: Kenneth O. McCutcheon, Jr., of Versailles, Missouri.

Busey Bank, Respondent, Pro se.

WILLIAM W. FRANCIS, JR., C.J./P.J. - OPINION AUTHOR. JEFFREY W. BATES, J. - Concur. DANIEL E. SCOTT, J. - concur.

OPINION

WILLIAM W. FRANCIS, JR., C.J./P.J.

Page 821

Kehrer[1] Brothers Construction, Inc. (" Kehrer Brothers" ), appeals the judgment of the trial court denying its petition to enforce a mechanic's lien. Finding merit to one of Kehrer Brothers' points, we reverse and remand with instructions.

Facts and Procedural History

In March 2006, Edwin J. Gire (" Gire" ) executed two deeds of trust and two $200,000 promissory notes in favor of Busey Bank, an Illinois Banking Corporation, secured by the following described real estate:

All of Lot 9R of a subdivision of Lots 8, 9, and 10, amended plat to Harbor Heights Estates, a subdivision in Camden County, Missouri, according to the plat thereof on file and of record in the office of the Recorder of Deeds, Camden County, Missouri.

("the property").

On October 26, 2007, Kehrer Brothers, as " Contractor," entered into a " Subcontract Agreement" [2] with Gire, as " Subcontractor," to perform excavating work for Gire at a " Job Address" shown as " 1171 Greenwood Circle[,] Osage Beach, MO 65065" (" jobsite" ). There was no real estate description set forth in the Subcontract Agreement for the jobsite address.

On November 1, 2007, Kehrer Brothers began the excavation work and supplied the materials and machinery used in the excavation. The last work performed by Kehrer Brothers at the jobsite was on August 15, 2010. At that time, Kehrer Brothers claimed the sum of $480,637.50 was still due and unpaid by Gire.

On April 21, 2009, Busey Bank, by the terms of a subordination agreement, subordinated its two deeds of trust and promissory notes--secured by the property--to the Bank of Versailles. Thereafter, on April 30, 2009, the Bank of Versailles became the holder of a promissory note in the original principal amount of $1,650,000, and a deed of trust secured by the property, both executed by Gire.

On November 10, 2010, Kenneth L. McCutcheon, Jr. (" McCutcheon" ), in his capacity as trustee under the Gire deed of

Page 822

trust, foreclosed on the Gire promissory note and deed of trust on behalf of the Bank of Versailles. Thereafter, on November 12, 2010, a trustee's deed on the property was recorded on behalf of the Bank of Versailles.

On February 14, 2011, Kehrer Brothers filed its " Statement of Mechanic's Lien" (" mechanic's lien" ) with the Circuit Clerk of Camden County.

In the mechanic's lien, Kehrer Brothers claimed a lien

for work and labor performed and materials and services furnished by it under contract and/or pursuant to a continuous running account with Edwin J. Gire, upon and for the building and improvements in Camden County and described as follows:
All of Lot 9R of A SUBDIVISION OF LOTS 8, 9, AND 10, AMENDED PLAT TO HARBOUR [sic] HEIGHTS ESTATES, a subdivision in Camden County, Missouri, according to the Plat thereof on file and of record in the ...

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