Court of Appeals of Missouri, Southern District, Second Division
FOUR STAR ENTERPRISES EQUIPMENT, INC., RGH, LLC, Plaintiffs-Appellants,
EMPLOYERS MUTUAL CASUALTY COMPANY, Defendant-Respondent and COUNTY OF GREENE/GREENE COUNTY COMMISSION, EX REL, AND FOR THE USE AND BENEFIT OF FOUR STAR ENTERPRISES EQUIPMENT, INC., AND RGH, LLC, Plaintiffs,
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable J. Dan Conklin, Circuit Judge.
REVERSED AND REMANDED WITH DIRECTIONS.
For Appellants: Steven E. Marsh of Springfield, MO.
For Respondents: Christopher J. Stark of Springfield, MO.
Before Sheffield, P.J., Rahmeyer, J., and Lynch, J.
This case involving section 107.170 comes to us on a $20,000 claim, with two separate lawsuits and seventeen years of litigation. Under section 107.170, " [s]tatutory payment bonds shift the ultimate risk of nonpayment from [eligible] workman and suppliers to the surety on public work projects," and offer eligible " laborers and materialmen some assurance of payment." City of Kansas City, Missouri ex rel. Lafarge North America Inc. v. Ace Pipe Cleaning, Inc., 349 S.W.3d 399, 403-04 (Mo.App. W.D. 2011). In Missouri, public property " is protected from," and " cannot be encumbered by," mechanic's liens. Id. Four Star Enterprises Equipment, Inc. (" Four Star" ) claims it rented equipment to a subcontractor on a public work project and, as a result, was eligible to seek recovery under the general contractor's section 107.170 statutory payment bond for items covered by the bond. Id. at 404-07. Four Star obtained a default judgment against the subcontractor, and then filed suit against Employers Mutual Casualty Company (" EMC" ), the surety for the statutory payment bond. The trial court, however, denied Four Star's claim for collection of the judgment. We reverse and remand.
Factual and Procedural Background
From what can be gleaned from the record, Four Star sold and rented equipment -- " mainly" construction equipment. The underlying cause of action began when Four Star leased construction equipment to Fred and Mark Townlian doing business as T & T Construction (collectively, " T & T" or " Subcontractor" ), which Four Star alleged was for use on Greene County's Plainview Road project. D & E Plumbing and Heating, Inc. (" D & E" or " General Contractor" ) was the general contractor for the project and hired T & T. As required by section 107.170, D & E issued a payment bond for the road project with EMC as surety. T & T did not fully pay Four Star for the rental of the equipment. In May 1997, Four Star sued T & T, D & E, and EMC to recover payment for rental of the equipment. All three defendants were served with a summons.
Subcontractor did not appear or file an answer. General Contractor and EMC appeared, filed and argued several motions, and engaged in discovery before filing answers in June 2003. After General Contractor and EMC filed answers in June 2003, Four Star filed an affidavit of Fred Townlian and an affidavit of a representative of Four Star that same month. After filing answers, General Contractor and EMC also requested and were granted two changes of judge, engaged in further discovery, and requested and were granted at least one continuance of trial.
On September 1, 2005, the case was set for trial before a jury on November 21, 2005. At Four Star's request, and apparently without any advance notice to D & E or EMC, the trial court then ...