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Meco Systems2/14/2001
ient to cover its actual damages. Id.
As to MECO's claim that the trial court erred by not imposing an equitable lien on the theater property in MECO's favor, we reject it for several reasons. The first and foremost of the reasons is that MECO never sought an equitable lien via its pleadings, never requested an equitable lien at trial via witnesses or request of counsel, and failed to present any evidence on at least one of the elements of an equitable lien.
"The doctrine of 'equitable lien' applies only in cases where the law fails to give relief and justice would suffer without the equitable remedy, but the doctrine has prescribed boundaries and generally there must be an express agreement, or conduct or dealings of the parties from which an intention may be implied, that some specific property shall be appropriated as security for a debt . . . before equity will consider that a lien should be declared on the property.
"An equitable lien cannot be based on moral obligations alone but must rest on established equitable principles, and a failure to repay money as agreed, standing alone, is not sufficient reason for equity to intervene to declare an equitable lien." Wilkinson v . Tarwater, 393 S.W.2d 538, 542 (Mo. 1965) (citations omitted) (emphasis supplied).
MECO relies heavily upon Willman v. Beheler, 499 S.W.2d 770 (Mo. 1973), and Miller v. Heisler, 187 S.W.2d 485 (Mo.App. 1945), to support its claim of entitlement to an equitable lien. However, in Miller the plaintiffs clearly presented the equitable lien issue to the trial court by their pleadings. Id. at 486. No such pleading exists in this case. In Willman, the court observed that " nce having acquired jurisdiction equity will retain it, under a prayer for general relief (there was such a prayer in this petition), to administer full and complete justice, within the scope of the pleadings and evidence, between the parties." 499 S.W.2d at 778. There are, however, two reasons why Willman does not aid MECO. First, MECO's only prayer for general equitable relief is found in its unjust enrichment count. We explained earlier in this point why the trial court did not err in ruling the unjust enrichment count against MECO. Second, and more fundamental, MECO adduced no evidence from which the trial court could have found an essential element of equitable estoppel, either an express agreement between MECO and DBE that the theater property was to serve as security for DBE's debt to MECO, or conduct or dealing between DBE and MECO from which such an intention could be implied. To the contrary, DBE vigorously resisted MECO's efforts to have its judgment against DBE secured by a lien. Under the circumstances, MECO is urging this court to convict the trial court of an issue which was not put before it to decide, either by pleadings, evidence, or oral request at trial. This we will not do. See In re Marriage of Wormington, 957 S.W.2d 812 (Mo.App. 1997); Boatmen's Bank v. Foster, 878 S.W.2d 506 (Mo.App. 1994).
Finally, we note that MECO's ability to obtain a mechanic's lien on the theater property precluded it from obtaining an equitable lien. Campbell v. Rickert, 938 S.W.2d 282, 286 (Mo.App. 1997). MECO cites no authority for the proposition that due to its failure to comply with the statute, it is entitled to an equitable lien. Campbell teaches that unless a lien applicant demonstrates its inability to obtain a mechanic's lien despite compliance with the statute, a trial court does not err in denying its request for an equitable lien. Id. Point denied.
The judgment is affirmed.
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