Meco Systems2/14/2001
Appeal From: Circuit Court of Taney County, Hon. James L. Eiffert
Opinion Vote: AFFIRMED.
Prewitt, J., and Barney, C.J., concurs. Parrish, P.J., and Montgomery, J., recuses.
Opinion:
This appeal arises from a mechanic's lien case and suit for damages by MECO Systems, Inc. ("MECO") against Dancing Bear Entertainment, Inc. ("DBE"), owner of the Charley Pride Theater at Branson, Missouri. In a counterclaim, DBE sought liquidated damages per a contract clause because of MECO's alleged failure to timely complete construction. Other parties to this case who have filed briefs with this court are Empire Bank (holder of first deed of trust), its trustee, and some of MECO's subcontractors who joined the litigation as intervenors. The trial court (a) denied MECO's request for a mechanic's lien, (b) entered judgment for MECO against DBE for unpaid construction costs, (c) rendered money judgments for subcontractors against MECO, (d) awarded liquidated damages to DBE and against MECO, (e) gave some subcontractors first lien status, and (f) denied MECO's claim for unjust enrichment. MECO appeals advancing multiple claims of trial court error. We affirm.
REVIEW STANDARDS
Review of mechanic's lien and contract suits is under Rule 84.13(d). White River Dev. v. Meco Systems, 806 S.W.2d 735, 736 (Mo.App. 1991). As that rule is construed, we are to affirm the judgment unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, erroneously declares the law, or erroneously applies the law. Id. at 736-737. "A judgment is to be set aside because it is against the weight of the evidence only with caution and with a firm belief that the . . . judgment is wrong." Id. at 737.
The phrase "weight of the evidence" refers to "its weight in probative value, not its quantity." Id. The weight of evidence is determined by its effect in inducing belief, not by mathematics. Id.
Appellate courts give due regard to the trial court's determination on the credibility of witnesses. Id. "The trial judge as the trier of fact can disbelieve testimony even where uncontradicted." Id.
FACTUAL SYNOPSIS -- MECO'S MECHANIC'S LIEN CLAIM
On August 25, 1993, MECO and DBE entered into a contract under which MECO, a corporation, would build a theater at Branson, Missouri, for DBE, a corporation. The August 25, 1993, document (herein the "Main Contract") had two parts, namely, a "Standard Form of Agreement Between Owner and Contractor" produced by the American Institute for Architects ("AIA") and an "Amendment" prepared by DBE's lawyer. MECO's work under the Main Contract was described as "site preparation, parking lot paving, parking lot lighting, and construction of the Theater Building, complete." In return, DBE agreed to pay MECO for "Cost of the Work," defined as the cost of labor, materials, equipment, payments made under MECO's subcontracts, and incidental costs as described therein. Also, DBE agreed to pay MECO a contractor's fee of six and one-half percent of the total job cost.
When the AIA contract form was signed, the parties were awaiting a building permit from the city of Branson. Also, DBE's financing needs had not been met. The parties addressed these issues in the Amendment, as follows:
"2. . . . In the event building permit is obtained prior to the close of [DBE's] construction financing, the date of commencement shall be no later than five (5) days following the date of closing of [DBE's] construction financing.
"7. The parties . . . agree that the Agreement shall be contingent and conditioned upon the closing and funding of
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