Meco Systems2/14/2001
uits, MECO urges remand of this case with directions to the trial court to transfer Subcontractors' mechanics' liens to MECO as a way to repay MECO "whatever amount it may be required to pay out under its appeal bond."
In response, Empire Bank argues, inter alia, that MECO's claim of entitlement to be subrogated to Subcontractors' mechanics' liens is moot. We agree. This conclusion stems from the fact that Subcontractors released their liens during the pendency of this appeal; consequently, Subcontractors no longer have an existing right or legal claim that can be subrogated to fulfill MECO's claim. It is fundamental that "in order to achieve subrogation, the subrogor [Subcontractors], must have some existing right or legal claim that can be subrogated to fulfill the claim of the subrogee [MECO]." Estate of Griffitts, 938 S.W.2d 621, 624 (Mo.App. 1997). Once Subcontractors released their mechanics' liens, nothing remained for MECO to be subrogated to; consequently, any discussion of the subrogation issue could only be advisory. "Appellate courts do not render advisory opinions or decide nonexistent issues." Hawkeye-Security Ins. Co. v. Davis, 6 S.W.3d 419, 427 (Mo.App. 1999).
When, as here, the question presented for decision cannot have any practical effect upon any existing controversy, the question is moot. Bank of Washington v. McAuliffe, 676 S.W.2d 483, 487 (Mo.banc 1984). Subcontractors' release of their liens is an intervening event which makes it unnecessary for us to address MECO's third point. This follows because MECO's third point no longer represents an actual controversy.
POINT IV: LIQUIDATED DAMAGES; WHEN DID WORK START UNDER CONTRACT?
The Amendment set April 1, 1994, as the "Substantial Completion" date for this project and required MECO to pay $5,000 per day as liquidated damages for each day of delay beyond April 1. However, the Amendment also provided if the "date of commencement later than September 1, 1993, the substantial completion date [would] be extended by an equal number of days corresponding to the delay in the date of commencement."
At trial, the parties stipulated that "substantial completion" was achieved May 30, 1994. Because this occurred after April 1, 1994, DBE sought liquidated damages per the contract.
MECO defended on two grounds. First, MECO asserted that the first work performed under the Main Contract never occurred until the financing contingency was released on September 29, 1993; accordingly, MECO argued the completion date should be extended to April 29, 1994. Second, MECO argued the substantial completion date should be pushed back even further due to adverse weather, job site conditions beyond MECO's control, and building permit delays.
The trial court rejected MECO's first argument and found MECO commenced work under the Main Contract September 1, 1993, not September 29, 1993. Second, the court found MECO was entitled to forty-five extra days, or until May 16, 1994, to complete the project due to delays caused by inclement weather, lack of building permit, and site conditions over which MECO had no control. Accordingly, the court awarded DBE $75,000 liquidated damages, i.e., 15 days x $5,000 per day.
On appeal, MECO's fourth point reprises MECO's earlier arguments that MECO never started to work under the Main Contract until September 29, 1993; consequently, the revised completion date came after May 30, 1994, i.e., April 29, 1994, plus forty-five days. Accordingly, MECO insists the court committed reversible error in awarding liquidated damages.
The premise of this argument that MECO never started work under the Main Contract until the financing
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