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E.A. MARTIN MACHINERY CO. V. LINE ONE, INC. 111 S.W.3d 924 (2003) Missouri Court of Appeals PHILLIP R. GARRISON, JUDGE. This case involves a contract dispute arising out of a public works project. On June 20, 1997, Public Water Supply District Number 2 of McDonald County, Missouri ("the District") entered into a contract ("Bonded Contract") with Still Construction Company, Inc. ("Still") whereby Still was to serve as the general contractor responsible for building water distribution lines for a public works project owned by the District. The same day, a payment bond in the amount of $1,735,878 was executed by the District, Still, and Ohio Casualty wherein Ohio Casualty agreed to serve as surety for the project. Ohio Casualty apparently also executed a performance bond guaranteeing completion of the project, although the record does not indicate when this occurred. In preparation for work on the project, Still entered into a subcontract with Line One, Inc. ("Line One") for the excavation and installation of the pipeline. Line One, in turn, entered into at least two contracts with E.A. Martin Machinery Co. ("Martin"), on June 10,1998 and again on July 20, 6 AIA A312-2010 Payment Bond \$5.1.1. 7 ALA A312-2010 Payment Bond $12. 21 1998 , for the rental of heavy construction equipment to complete Line One's work on the project. Line One failed to pay Martin a significant portion of the rent due under these contracts, as well as for repair services provided by Martin during the course of Line One's work. This past due amount, some $28,120.49, plus interest, served as the basis for the suit underlying this appeal. In or around February 1998, Still informed the District and Ohio Casualty of financial difficulties it was experiencing which could jeopardize its ability to complete the project. Eventually, Still was defaulted by the District when Still acknowledged its inability to complete its work. As a result of Still's default, Ohio Casualty, as surety for the project, entered into an agreement ("Completion Agreement") with Hartec Corporation ("Hartec"), by which Hartec committed "to complete the Project pursuant to the terms and conditions of the Bonded Contract." On July 17, 1998, the substitution of Hartec as the general contractor for the project was ratified by the District and Ohio Casualty in a document entitled "Contract Takeover Agreement" ("Takeover Agreement"). On March 18, 1999, Martin presented a written claim against the payment bond to Ohio Casualty in which Martin sought payment of Line One's indebtedness from the rental contracts and repairs performed by Martin. No written notice or request for payment was sent to Hartec or the District. On January 18, 2000, Martin filed a petition in the trial court naming Line One, Hartec, and Ohio Casualty as defendants and seeking damages in the amount of Line One's indebtedness, plus interest and attorney fees. [Martin filed suit seeking, among other things: payment for work performed under the performance bond issued by Ohio Casualty. Ohio Casualty responded to the lawsuit are argued that it should be dismissed because Martin failed to comply with the payment bond's notice requirements prior to filing a complaint. [The trial judge held that Ohio Casualty was liable to Martin in the amount of $44,203.37 under the terms of the payment bond. Ohio Casualty appealed.] Ohio Casualty alleges that the trial court erred in granting judgment against them because Martin failed to submit substantial evidence that it complied with the express notice provisions of the payment bond. Specifically, [Ohio Casualty contends] that notice of Martin's claim 212 Chapter 10 against Line One on their rental agreements was not presented within ninety days to at least two of the three parties to the payment bond and that Martin could not, therefore, commence any action seeking payment of Line One's debt. The payment bond contains the following provision: PROVIDE[D] FURTHER, that no suit or action shall be commenced hereunder by any claimant: (a) Unless claimant . . shall have given written notice to any two of the following: [the general contractor], the [District] or [Ohio Casualty] . . . within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed. In order to comply with this provision, Martin must have provided written notice to either Hartec, as the completing general contractor, or the District in addition to its notice to Ohio Casualty. This did not occur. On March 18, 1999, Martin presented a written claim against the payment bond to Ohio Casualty in which Martin sought payment of Line One's indebtedness for the rental contracts and repairs performed by Martin. No written notice or request for payment was sent to Hartec or the District. Moreover, in order to comply with the express qualifications of the payment bond, Martin must have done or performed the last of its labor or provided the last of the materials to Line One on or later than December 19, 1998. The last of Line One's work on the project was completed on November 19, 1998. Martin's invoices to Line One indicate the last of Martin's equipment was returned on December 1, 1998. An invoice dated December 31, 1998 indicates that repair work on the returned equipment was completed on December 2, 1998. It does not appear from the record that Martin provided any equipment or services on or later than Decembe 19,1998 , ninety days prior to Martin's written notice to Ohio Casualt Based on the foregoing, we are persuaded by [Ohio Casualt argument] that Martin failed to provide substantial evidence proving it complied with the terms of the payment bond. The judgment of the trial court is reversed. CASE DISCUSSION QUESTIONS 1. Identify the principal, obligee, surety and claimant in this case. 2. What party makes a claim on the surety bond? Was the claim on a payment bond or performance bond? 3. Was Martin's claim on the bond allowed? Why or why not