Failure To Attempt Service On Defunct Canadian Sub-Contractor Within Statutory Six Month Period Results In Dismissal Of Mechanic's Lien - Supplier Must Affirmatively Plead Non-Payment By Owner For Unjust Enrichment
01/29/08
Supplier intervened in previously filed mechanic's lien action. Supplier did not attempt service of process on defunct Canadian sub-contractor with which it contracted on the project. Owner's motion for judgment on the pleadings was granted. Court of Appeals affirms that general contractor with which supplier did not have direct contract is not a necessary party. RSMO 429.109 mandates subcontractor, as a party to the contract with supplier, must be joined in any proceeding to adjudicate a mechanic's lien. Further, RSMO 429.170 provides that a petition to foreclose on a mechanic's lien shall be commenced within six months after filing the lien. The action is commenced within the statute by the filing a a petition and the issuance of the summons. The joining of a necessary party is mandatory and the six-month limitation period is not tolled, rather, it continues to run if when an action is commenced, proper service is not secured within the six-month limitation. Jurisdiction over a necessary party obtained after the lapse of the six-month limitation period bars recovery. Nothing in the record supports supplier's allegation that it attempted to commence the action by serving the defunct Canadian sub-contractor with the petition and issuing a summons. Even if the Canadian sub-contractor is defunct, supplier is not relieved from exercising due diligence in securing proper service over sub-contractor. By failing to so do, supplier has been barred from recovery. The responsibility to insure proper jurisdiction rests upon the lien claimant within the applicable six-month time limitation period. Failure to secure such proper jurisdiction is fatal to recovery. A lien claimant's lack of diligence in regard to obtaining proper service of process or some otherwise acceptable waiver of service and submission to jurisdiction bars recovery.
The essential elements of a quasi-contract or quantum meruit claim are that the plaintiff provided to the defendant materials or services at the defendant's request or with the acquiscence of the defendant, that the materials or services had reasonable value, and that the defendant, despite the demands of the plaintiff, has failed and refused to pay the reasonable value of such materials or services. A petition fails to state a cause of action based upon unjust enrichment if it fails to allege the property owners [against whom recovery is sought] did not pay the general contractor. Lee Deering Electric Company v. Ammonia Master Refrigeration, LTD., Docket No. ED8934 (Mo.Ct.App. 1/29/2008)
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