FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable
Richard C. Bresnahan, Judge
Glass Company, Inc., appeals the circuit court's judgment
in favor of defendants on two claims: its mechanic's lien
claim for unpaid work on a construction project and its claim
that St. Louis County failed to require a public works
construction bond mandated by section 107.170. This Court granted transfer after opinion
by the court of appeals. Mo. Const. art. V, sec. 10.
defendants were not entitled to summary judgment on Brentwood
Glass's mechanic's lien claim against Cornerstone VI,
LLC. While a mechanic's lien may not attach to a
building, land, or improvements owned by a public entity,
Brentwood Glass may bring its mechanic's lien claim
against Cornerstone's leasehold interest. Additionally,
genuine issues of material fact exist regarding whether the
lien notice was timely and whether the lien statement
provided a just and true account of the demand due. As to
Brentwood Glass's bond claim against the County, judgment
was proper because Cornerstone was not a
"contractor" under section 107.170.1(1).
Furthermore, Brentwood Glass did not name a party against
whom it could recover on its bond claim.
judgment on Brentwood Glass's mechanic's lien claim
is reversed as to Cornerstone. In all other respects, the
judgment is affirmed. The cause is remanded.
and Procedural Background
Louis County council adopted a resolution expressing its
intent to issue industrial revenue bonds to finance the
County's purchase and development of a property known as
Six City Place Drive. The County planned to develop the
property for the headquarters of Smurfit-Stone Container
Enterprises, Inc. The resolution authorized two companies,
Smurfit-Stone and Cornerstone, to proceed with the
"purchase, construction and equipping" of the
development, "including the entering into of contracts,
" and expressed the County's intent to lease the
property to Smurfit-Stone and Cornerstone.
County ultimately passed an ordinance finalizing the
comprehensive plan to finance and develop the property. As
part of the plan, the County was to issue industrial revenue
bonds to finance the project, upon which only Cornerstone
could draw. Cornerstone and the County also executed a
"Lease Agreement." The agreement provided for more
than a lease and, therefore, will be referred to as a
contract required Cornerstone to construct the project
"on behalf of the County" and authorized
Cornerstone to act "as the agent of the County." As
the County's agent, the contract required Cornerstone to
"promptly notify the County of the imposition of [a
mechanic's] lien of which the Company is aware[.]"
Cornerstone deeded the property to St. Louis County; on the
same day, the County issued the industrial revenue bonds to
finance the project.
Inc., the general contractor for the project, subsequently
entered into a subcontract with Pal's Glass to supply
glass and glazing work. Pal's Glass, in turn, entered
into a sub-sub-contract with Brentwood Glass for some of this
work. Neither Cornerstone nor any contractor working on the
project obtained a bond that would comply with section
Glass initially agreed to pay Brentwood Glass a firm, fixed
price for the labor and material. Any changes to the
sub-subcontract were required to be made by a change order in
writing by the subcontractor. Pal's Glass and Brentwood
Glass revised the contract via change order once. Other
change orders, however, were proposed but not executed.
Brentwood Glass performed extra work not reflected in the
sub-subcontract price or a change order.
Glass was not paid for any work done after January 12, 2007,
but presented evidence that it continued to work on the
project after this date. On July 27, 2007, Brentwood Glass
served notice of its intent to file a mechanic's lien.
The notice was served on Cornerstone, not the County. Having
still not received payment, Brentwood Glass filed its
mechanic's lien. The lien listed Cornerstone as the owner
of the property and claimed $1, 061, 464.08 in unpaid work.
Glass then filed a nine-count petition against Pal's
Glass, Clayco, Cornerstone, the County, UMB Bank, National
City Bank of the Midwest, Paul M. Macon, and Victor
Zarilli. In Count I, Brentwood Glass
asserted a breach of contract claim against Pal's Glass.
In count VIII, Brentwood Glass asserted a mechanic's lien
claim against all defendants. In count IX, Brentwood Glass
asserted an action against the County for allegedly failing
to require a payment bond pursuant to section 107.170.
Pal's Glass admitted to owing $593, 261.47 and consented
to a judgment against it for that amount and costs.
defendants filed a motion for summary judgment on the
mechanic's lien claim. The County also asserted it was
entitled to summary judgment on the bond claim because
section 107.170 did not apply. The circuit court entered
judgment in favor of the defendants. Brentwood Glass
appeal, an appellate court reviews summary judgment de
novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine
Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
Summary judgment is proper when the movant "show[s] a
right to judgment flowing from facts about which there is no
genuine dispute." Id. at 378. A genuine dispute
exists when "the issue, or dispute, [is] a real and
substantial one - one consisting not merely of conjecture,
theory and possibilities." Id. Evidence in the
record is viewed "in the light most favorable to the
party against whom judgment was entered" with "the
benefit of all reasonable inferences from the record."
Id. at 376.
mechanic's lien is an equitable remedy with "the
purpose of giving security to mechanics and material[men] for
labor and materials furnished in improving the owner's
property." Bob DeGeorge Assocs., Inc. v. Hawthorn
Bank, 377 S.W.3d 592, 598 (Mo. banc 2012) (internal
quotations omitted). As such, "the provisions of the
mechanics' lien law should be interpreted so as to carry
out the object ... [of] the security of the classes of
persons named in the act, upon its provisions being in good
faith substantially complied with on their part."
Putnam v. Ross, 46 Mo. 337, 338 (Mo. 1870). "As
a general rule, statutes relating to mechanic's liens
should be liberally construed in favor of lien
enforceability." State ex rel. Springfield
Underground, Inc. v. Sweeney, 102 S.W.3d 7, 9 (Mo. banc
mechanic's lien filed by Brentwood Glass does not specify
whether it is seeking a lien against the County's
freehold property interest or against Cornerstone's
leasehold interest. But the mechanic's lien statutes do
not require such designation.
section 429.010, RSMo Supp. 2005, a mechanic's lien may
be brought against an owner's freehold interest in
[a]ny person who shall do or perform any work or labor ... or
furnish any material, fixtures, engine, boiler or machinery
for any building, erection or improvements upon land ...
under or by virtue of any contract with the owner or
proprietor thereof, or his or her agent, trustee, contractor
or subcontractor ... upon complying with the provisions of
sections 429.010 to 429.340, shall have for his or her work
or labor done ... a lien upon such building, erection or
improvements, and upon the land belonging to such owner or
proprietor on which the same are situated[.]
Public policy, however, prohibits the attachment of a
mechanic's lien on the buildings, land, or improvements
owned by a public entity. Redbird Eng'g Sales, Inc.
v. Bi-State Dev. Agency of Missouri-Illinois Metro.
Dist., 806 S.W.2d 695, 697 (Mo. App. 1991).
County owned the property at the time that Brentwood Glass
began working on the building, and the contract between the
County and Cornerstone provided that any improvements
installed in the building immediately became the property of
the County. As such, the County is protected by "the
general rule that property owned by a county or other
municipal corporation, and used for public purposes cannot be
sold on execution." Sec. State Bank v. Dent
Cnty., 137 S.W.2d 960, 961 (Mo. 1940) (internal
quotations omitted). Brentwood Glass may not, therefore,
perfect its mechanic's lien against the County.
429.070.2 also establishes a right to a mechanic's lien
against a leasehold interest:
Every mechanic, person or corporation who shall erect or
construct any building, plant, improvement, or erection, or
who shall furnish any material, ... or other personal
property upon either licensed or leased lots or lands under
or by virtue of any contract or account with the owner or
proprietor of the license or lease or with his or its agent,
..., upon complying with the provisions of sections 429.010
to 429.340, shall have a lien upon such building, plant,
improvement, erection, and also upon such materials,
fixtures, ... and such other personal property and also ...