Editor:Kenneth A. Slavens, Esquire
Award of attorney's fee under the Private Prompt Pay Act
(PPPA) upheld where requested in prayer for relief with requisite
specificity. Lucas Stucco & EIFS Design, LLC v. Landau, No.90771 (Mo. banc S.C., October 26, 2010), Russell, J.
The contractor's suit sought recovery of the contract balance of
$4,900.00 in a suit against the owner of project. At trial, the
contractor asked the court to award attorney's fees pursuant to the
Private Prompt Pay Act. The trial court awarded $10,567.04 in fees.
The owner appealed and argued that the petition made no mention of
PPPA and did not set forth any basis for the recovery of attorney's
The Supreme Court held that there are only two requirements for
pleading a violation of the PPPA: (1) the parties entered into a
private construction contract, and (2) one or more payments were not
made pursuant to the contract. The Court found that both elements were
pleaded in the contractor's petition. The prayers for relief associated
with each count requested a judgment for the contract balance with
interest and attorney's fees.
The PPPA does not require specific reference to the statute in the
pleading the Court decided. A court may award any relief the PPPA
provides, including attorney's fees, as long as the party has pleaded
the necessary elements of the act and has requested that relief in the
Held: In a suit by a contractor to recover an unpaid
contract balance on a construction contract, the Supreme Court held
that the award of attorney's fees under the Private Prompt Pay Act
(PPPA), if requested in the prayer, is appropriate as long as the
pleading sets out the necessary elements and that specific reference in
the pleading to the PPPA is not necessary.
River City Drywall, Inc. and Ambassador Floor Company, Inc.,
lien claimants in this consolidated appeal, sought to enforce liens
relative to a subdivision development. River City Drywall sought to
enforce a lien on one lot and Ambassador Floor sought to lien two lots.
Because the two entities were essentially one and the same, 10 day
notice to sub-contractors required by mechanics lien statute held not
required. River City Drywall, Inc., et al. v. Raleigh Properties, Inc., et al., Nos. 94990 and 94991 (Mo. App. E.D., May 17, 2011), Mooney, J.
The subdivision was Hillington Estates. The subdivision had its
beginnings in 2004. In August 2004, the tract of land which would
become the subdivision was transferred by general warranty deed to
Raleigh Properties, Inc. (Properties). Properties transferred the land
by quit claim deed in December 2004 to Raleigh Development
(Development). In January of 2005, Properties recorded a subdivision
plat. The plat identified Properties as the owner despite the fact that
Properties had transferred its ownership interests to Development
Both Properties and Development were owned by one person, Richard
Raleigh. Mr. Raleigh testified that Development was set up to hold the
ownership of the real estate. Properties were set up for the marketing,
selling and contracting associated with the subdivision. Mr. Raleigh
testified that Development was a holding company for Properties.
In addition, Mr. Raleigh admitted that due diligence was not
exercised in maintaining separation, between the two companies. The
roles of the two were confused and interchanged. Mr. Raleigh admitted
that, in practice, Properties acted as and was treated as the owner
with respect to the construction activities at the subdivision.
Properties entered into the sales contracts for the homes in the
subdivision even though Development held the titles. There were no
formal contracts between Properties and Development covering the
transfer of titles of the subdivision's lots.
The trial court found that the lien claimants were subcontractors and
not original contractors because the respective contracts were between
the claimants and Properties and Development was the owner. The trial
court refused to enforce the liens because neither lien claimant had
given the required 10 Day Notice under Section 429.100, RSMo which is
required of subcontractor lien claimants.
The appellate court reversed. The court of appeals noted that the
mechanic's lien statute affords the right to a mechanic's lien to any
party that contracts with the owner or the owner's agent. Under the
mechanic's lien statute the term "agent" is interpreted much more
broadly and the required proof is less stringent to show agency than in
The court of appeals said:
As used in our mechanic's lien law, an "agent" may be "a person
with such limited authority as to be unable to bind his principal
personally for the work, but who at the same time, by an exercise of
the limited authority given, will transmit to the persons furnishing
the materials a right to a lien upon the owner's premises." (citations
The purpose of the 10 day notice required of subcontractors is
solely to benefit the owner of the property and to afford the property
owner notice of an outstanding claim of a subcontractor so payment may
be withheld from the direct contractor to avoid double payment. In this
dispute, the lien claimants contracted with an agent as defined under
the mechanic's lien statute. The "agent" and the "owner" were
substantially the same. The court noted that Properties and Development
had the same person as the owner, sole employee and sole decision
maker. The court concluded that the 10 day notice to the owner would
serve no purpose because, in effect, the owner would know all the same
things the agent would know under this scenario.
Held: In an action by two contractors to enforce mechanic's
liens, in response to the question of whether the claimants were
original contractors or subcontractors, the court concluded that under
these factual circumstances where one company owned the real estate and
another had contracted with the lien claimants, but the two entities
were essentially one and the same, the lien claimants should be treated
as original contractors and, therefore, were not required to give the
10 day notice.
The Missouri Bar Courts Bulletin, 11-Jul