Opinion
No. C4-98-1588.
Filed May 18, 1999.
Appeal from the District Court, Blue Earth County, File No. C898807.
Silas L. Danielson, (for respondent).
Michael A. Broback, (for appellant).
Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant challenges the trial court summary judgment that appellant must remove its mechanic's lien from respondent's property because appellant filed the lien after the deadline for filing had passed. Because appellant failed to produce evidence of any work that extended the filing period, we affirm.
FACTS
In December 1996, appellant Stang Concrete Co., Inc. was hired by general contractor Stahl Construction Company to perform concrete and masonry work on real estate belonging to respondent Phenix Manufacturing, Inc. Appellant performed work at the property until April 4, 1997, when the project was postponed due to financing difficulties. Appellant never billed for any work done after April 1997.
Having not received complete payment, appellant filed a mechanic's lien on respondent's property on January 28, 1998. The Bill of Particulars noted that the money owed was for work done prior to or during April 1997. Respondent brought suit against appellant, seeking to have the lien removed. Appellant counterclaimed, seeking to have the lien foreclosed. Respondent brought a motion for summary judgment, claiming the lien was not valid because it was filed more than 120 days after April 4, 1997.
In response, David Stang, president of appellant Stang Concrete, claimed in an affidavit that he continued to attend meetings and provide "pricing, estimation, and material selection services" until November 18, 1997. The trial court granted summary judgment in favor of respondent and ordered appellant to remove the lien because "[t]he record is devoid of support for [appellant's] claim that it continued to work on the project after April 4, 1997."
DECISION
On appeal from a summary judgment, we ask two questions: (1) whether the evidence raises any genuine issues of material fact and (2) whether the district court erred in applying the law. State by Cooper v. French , 460 N.W.2d 2, 4 (Minn. 1990). The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn. 1993).
Minnesota law provides lien rights for one who, under an appropriate contract, "contributes to the improvement of real estate by performing labor, or furnishing skill, material or machinery." Minn. Stat. § 514.01 (1998). This lien "ceases at the end of 120 days after doing the last of the work, or furnishing the last item of skill * * * unless within this period * * * a statement of the claim is filed for record with the county recorder * * * ." Minn. Stat. § 514.08 (1998).
Appellant argues that the lien was timely filed because David Stang attested that he provided "pricing, estimation, and material selection services" until November 18, 1997 and the lien was filed within 120 days of that date. But appellant has failed to show, either in the lien statement, the Bill of Particulars, or David Stang's affidavit, any more substantial information on these services. On this record, there is no basis for finding that the services after April 4, 1997, constituted anything more than de minimus activity, notwithstanding unsupported arguments that the activity was more considerable. Under these circumstances, the trial court correctly ordered appellant to remove the lien. Kahle v. McClary , 255 Minn. 239, 242, 96 N.W.2d 243, 246 (1959) (de minimus operations will not suffice to extend the lien filing period); see also Hayle Floor Covering, Inc. v. First Minn. Constr. Co ., 253 N.W.2d 809, 813 (Minn. 1977) (incidental work not relating to the project itself is not sufficient to extend deadline); Dayton v. Minneapolis Radiator Iron Co ., 63 Minn. 48, 48, 65 N.W. 133, 133 (Minn. 1895) (two hours' work fitting doors, three and one-half months after apparent completion of the contract, not sufficient to extend deadline). Cf. Poured Concrete Found., Inc. v. Andron, Inc ., 529 N.W.2d 506, 512 (Minn.App. 1995) (acid wash done two years after masonry project was otherwise completed served to extend lien period where acid wash was customary process, not nominal or insignificant, and there was no evidence that subcontractor intended to extend lien), review denied (Minn. May 31, 1995).
Appellant asserted at oral argument that it provided little proof of post-April work because there was no factual dispute about this issue and that any factual dispute was "judge created." But in motion proceedings at the trial court, appellant argued that there was a dispute, stating, "Phenix appears to assert that Stang provided no services at all between April 4, 1997 and November 18, 1997 * * *. These representations, the provision of these services and the existence and the nature of the contract under which Stang was operating constitute material fact issues precluding summary judgment on the lien claim."
Equally important, appellant has not shown that the "pricing" and "material selection" services provided after April constitute the basis for a lien because appellant has not shown that they contributed to the improvement of the real estate as required by Minn. Stat. § 514.01.
Appellant also argues that a "subcontractor's lien rights are not extinguished merely because the owner, due to no fault of the subcontractor, chooses to delay or interrupt the work." But the cases cited by appellant merely stand for the proposition that if the owner interrupts the project, prior work done by the lien claimant, even if incomplete, may still constitute an improvement to real estate. See Lamoreaux v. Andersch , 128 Minn. 261, 267, 150 N.W. 908, 911 (1915). Appellant provides no authority for the proposition that interruption of the work will extend the time to file the subcontractor's lien.