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Meco Systems2/14/2001
ts between MECO and its subcontractors.
The cessation of payments led to a morass of litigation and ultimately to the judgment summarized in the opening paragraph of this opinion. Additional facts are given when needed to analyze points relied on.
MECO'S FAILURE TO COMPLY WITH BRIEFING REQUIREMENTS OF RULE 84.04
At the outset, we are confronted with motions and argument by several respondents to strike or dismiss four of MECO's five points on appeal for failure to comply with the briefing requirements of Rule 84.04. Those motions, taken with the case, are denied.
We caution, however, this ruling does not mean we find that the points in MECO's brief comply with Rule 84.04. They do not comply. This excerpt from another mechanic's lien case, Norman v. Ballentine, 627 S.W.2d 83 (Mo.App. 1981), explains our decision to address MECO's claims of trial court error:
"Inadequate briefs of counsel are a disservice to parties so represented and a burden on the system of justice. See Thummel v. King, 570 S.W.2d 679, 686 (Mo.banc 1978). Because of the result here reached, however, suspension of strict application of Rule 84.04 will work no hardship on the respondent. Our jurisdiction is apparent from the record, and we have been able to determine the facts of the case and the issues to be decided from the briefs and transcript. A punitive order of dismissal would serve no purpose here, but we trust that members of the bar will take heed of the warning implicit in our discussion of this matter." Id. at 85.
DISCUSSION AND DECISION
POINT I: DENIAL OF MECO'S REQUEST FOR MECHANIC'S LIEN
The trial court denied MECO'S claim for a mechanic's lien because it found MECO did not comply with section 429.012. Specifically the court found MECO failed "to provide the required notice with the first invoice."
In pertinent part, section 429.012.1 provides:
"1. Every original contractor, who shall do . . . work . . . or furnish any material . . . for any building . . . under or by virtue of any contract . . . shall provide to the person with whom the contract is made . . . prior to receiving payment in any form . . . from such person, (a) either at the time of the execution of the contract, (b) when the materials are delivered, (c) when the work is commenced, or (d) delivered with first invoice, a written notice which shall include the following disclosure language in ten point-bold type . . . ." (Emphasis supplied).
Subsection 2 then states:
"2. Compliance with subsection 1 of this section shall be a condition precedent to the creation, existence or validity of any mechanic's lien in favor of original contractor."
In Gauzy Excav. and Grading v. Kersten Homes, 934 S.W.2d 303 (Mo.banc 1996), the supreme court emphasized the mandatory nature of the section 429.012 notice and the reasons therefor:
"By its unambiguous terms, these sections require all original contractors to provide a specific notice to the person with whom the contract for work is made before suit can be brought. The notice is designed 'to warn inexperienced property owners of the danger to them which lurks in the mechanics' lien statute.' Our courts have demanded strict compliance with the notice provision and have been reluctant to allow exceptions other than those provided by the statute itself.
"[The requirement of strict compliance with section 429.012.1] is based in part on a concern that recognition of exceptions to the statute that excuse knowledgeable developers and others who are sophisticated in the areas of real estate and construction will likely result in a pleth
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