Meco Systems2/14/2001
g and work under the contract[,]" (c) authorized work to proceed "pursuant" to the Main Contract for three ten-day periods, (d) continued to defer all performances under the Main Contract except those described by the letter agreements, and (e) abrogated the Main Contract's financing contingency for work accomplished under the letter agreements. Even more compelling is evidence that MECO did not conduct itself as if the letter agreements were separate independent agreements. For instance, MECO labeled its November 4, 1993, billing as Invoice 2. Thereafter, it numbered monthly invoices in the same sequence. From such conduct, it is reasonable to infer that MECO viewed its October 4, 1993, billing as Invoice 1 under the Main Contract and its performances under the letter agreements as occurring under a modified Main Contract, not separate contracts. A similar inference can be drawn from mechanic's lien statements, filed by MECO, one dated August 30, 1994, and another dated October 11, 1994. Each statement included MECO's invoice sums for its September 1993 work and material. Also, these documents contained MECO's sworn statement that the mechanic's lien it sought was for labor and materials furnished "under one general contract," which was identified as the Main Contract. In addition, MECO's requests to extend the completion date beyond April 1, 1994, because of adverse weather, job site conditions, and building permit delays, consistently included September dates. If as MECO now contends, the September work was covered by separate contracts, there was no reason for MECO to request additional days for completion due to weather or other delays occurring before September 29, 1993. Testimony by MECO's corporate officers and employees about September 1993 events, such as, MECO's work on the theater site, efforts to obtain plans and specifications from the architect, ordering of steel for the theater, and subcontractor negotiations, supports the conclusion that MECO and DBE consistently viewed themselves as performing under the Main Contract in September 1993, not separate contracts. Further support for this conclusion is found in the testimony by Wayne Towe, president of MECO. When asked if MECO was able to start work on the Main Contract on September 1, 1993, Towe answered: "In essence, yes."
In summary, ample evidence exists to support a finding that, by mutual assent, MECO and DBE modified the Main Contract by the three ten-day letter agreements. Earlier, we found the Main Contract not only came into existence but was consummated and enforceable upon its execution on August 25, 1993. Accordingly, MECO's failure to include the obligatory section 429.012.1 notice on its October 4, 1993, invoice precluded it from asserting a statutory lien against the DBE property. See Gauzy, 934 S.W.2d at 304-06; White River, 806 S.W.2d at 738. The trial court did not err in so finding. Point denied.
POINT II: AMBIGUITY AFFECTING SUBCONTRACTS' "PAY IF PAID" CLAUSE?
Subcontractors who entered this litigation to seek mechanics' liens against the theater property, judgments against MECO for breach of contract, and who remain as respondents on appeal, include Artisan Construction Services, Inc. ("Artisan"), Delvan Mitchell Ceiling Company ("Mitchell"), John O'Neal, d/b/a O'Neal Sheet Metal, Inc. ("O'Neal"), Table Rock Asphalt Construction Company, ("Table Rock"), and William J. Zickel Company ("Zickel").
The trial court entered money judgments against MECO and for Subcontractors as follows: Artisan ($82,778.54), Mitchell ($34,062.22), O'Neal ($22,871.87), Table Rock ($151,759.28), and Zickel ($34,929.49). Additionally, the trial court imposed first and equal priority mechanics' liens against the
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Employee Leasing Services
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