Opinion
No. 75-865
Decided January 27, 1977. Rehearing denied February 24, 1977. Certiorari denied May 9, 1977.
In action by subcontractor to foreclose two mechanics' liens, trial court entered judgment foreclosing the liens, and claimant appealed.
Affirmed in Part, Reversed in Part.
1. MECHANICS' LIENS — Disallowance of Deadline Postponement — For Trivial Omissions or Imperfections — Applies to All Lien Claimants. The statute providing that the deadline for filing mechanics' liens shall not be postponed because of "trivial imperfections in or omissions from" the work for which the liens are claimed applies to all lien claimants; accordingly, in an action to foreclose a mechanic's lien, since the timeliness of the filing of the lien hinged on whether certain work performed was "trivial" within the meaning of the statute, and since the trial court failed to determine that fact, the matter must be remanded for a resolution of that issue.
2. "Triviality" Section — Applicable Only — Project Deemed Completed. The "triviality" section of the mechanics' lien law only comes into play when a project is deemed "completed"; accordingly, in an action by a subcontractor to foreclose a mechanic's lien, where the trial court found that such subcontractor had performed only 75 percent of the work contemplated on a project, and that such project was therefore not complete, the "triviality" section was not applicable.
3. Abandonment — Completion — Equivalent — No Abandonment — Performance Prevented By — Other Party to Contract. Although the mechanics' lien law provides that abandonment of all labor, work, services, and furnishing of materials under any unfinished contract shall be deemed equivalent to a completion thereof, since the trial court in an action by a subcontractor to foreclose a mechanic's lien properly found that, even though the subcontractor had performed only 75 percent of the work contemplated by a contract, the subcontractor's failure to complete the balance of the work was excused by conduct of the other party to the contract, no "abandonment" of work within the meaning of the statute occurred.
Appeal from the District Court of Larimer County, Honorable Francis L. Shallenberger, Judge.
Fischer Wilmarth, Elery Wilmarth, C. William Beardslee, for plaintiff-appellee.
Grant, McHendrie, Haines Crouse, John G. Salmon, for defendant-appellant.
This is an action by Donald Kehn, a subcontractor, to foreclose two liens under the mechanic's lien law. The liens were claimed for work performed for defendant Urban Development and Construction Company (UDCC) and defendant Colorado Plumbing on property owned by Spring Creek Village I. From a judgment foreclosing the liens, Spring Creek appeals. We affirm in part and reverse in part.
Kehn's first lien, filed January 2, 1974, is for work performed for Colorado Plumbing on the subject property. Kehn performed labor and provided equipment to Colorado Plumbing until September 22, 1973. He did nothing further for Colorado Plumbing until December 20, 1973, at which time he was requested by Colorado Plumbing to locate certain buried pipe he had previously placed for it. Kehn's employee attempted to locate the pipe during the afternoon of December 20, 1973, but was unsuccessful. Thereafter, Kehn filed his lien for services rendered in attempting to find the pipe and for all other unpaid work performed on the subject property for Colorado Plumbing.
The second lien in question, filed February 6, 1974, is for payment claimed due for work done on the property pursuant to a written contract between Kehn and UDCC. Kehn worked for UDCC until the last two weeks of October 1973, at which time he experienced difficulty in obtaining payments from UDCC, and refused to perform further. In mid-November 1973, Kehn met with the president of UDCC, was paid $13,000, and promised to renew work upon certain conditions being fulfilled by UDCC relative to preparation of the work area. The following morning, Kehn returned to the site to finish his job, but he left shortly thereafter since the conditions agreed to by UDCC had not been performed. He returned again the following morning, November 21, 1973, but found nothing changed, and again left. Thereafter, Kehn filed his lien, claiming payment due for all unpaid contractual work and certain extras.
The trial court found that Kehn's liens were timely filed, and awarded judgment in his favor against Colorado Plumbing and UDCC, and ordered foreclosure of the liens on the property owned by Spring Creek.
On this appeal, Spring Creek asserts that Kehn's liens were not timely filed, alleging that the trial court failed to apply § 38-22-109(7), C.R.S. 1973, and made no finding on whether that section applies here.
Section 38-22-109(7), C.R.S. 1973, provides that the statutory deadline for filing mechanic's liens shall not be postponed due to "trivial imperfections[s] in or omission[s] from" the work for which such liens are claimed. The trial court determined that this section applies only to "day laborers and piece laborers . . . whose lien times runs from the completion of the building," and not to subcontractors such as Kehn. We disagree with that interpretation.
Only one month after an improvement's completion is allowed for the filing of lien statements for "labor and work by the day or piece, but without furnishing materials therefor." Section 38-22-109(4), C.R.S. 1973. However, § 38-22-109(7) provides that "for the purposes of this section, abandonment of all labor, work, services, and furnishing of materials under any unfinished contract . . . shall be deemed equivalent to a completion thereof." (emphasis added)
[1] It is obvious that the legislature would not have spoken of the furnishing of materials in section (7) had it been its intent to limit the applicability of that section only to day and piece laborers who do not furnish materials. Our conclusion is buttressed by Kaibab Lumber Co. v. Osburne, 171 Colo. 49, 464 P.2d 294 (1970), wherein the Supreme Court applied the predecessor "trivial imperfections" statute, to wit, C.R.S. 1963, 86-3-9(8), to a materialman who filed his lien too late. We thus hold that § 38-22-109(7), C.R.S. 1973, applies to all lien claimants. See American Factors Associates v. Triangle Heating, 31 Colo. App. 240, 503 P.2d 163.
In view of our holding, it follows that the timeliness of the filing of Kehn's lien for his Colorado Plumbing work hinges on whether the work performed on December 20 was "trivial" within the meaning of § 38-22-109(7), C.R.S. 1973. Because of its misconstruction of that section, the trial court failed to determine that issue, and thus we are compelled to reverse the judgment and remand the matter for resolution of this issue.
In regard to Kehn's second lien based on the UDCC contract, the appellant contends that the work performed by Kehn on November 20, 1973, was also trivial in nature, and that this work would also not extend the time for filing the lien. However, regardless of the fact that the court did not apply § 38-22-109(7), C.R.S. 1973, its findings are dispositive on this issue, and we therefore affirm as to the UDCC lien.
[2] The "triviality" statute, § 38-22-109(7), C.R.S. 1973, only comes into play when a project is deemed "completed."
In the instant case, the trial court found that Kehn had only performed 75% of the work contemplated by the UDCC contract, and that his failure to complete the balance of the work was excused by the conduct of UDCC. The court further found that the last work done by Kehn for UDCC in connection with the lien was on November 20, 1973, when he left the job after finding the site not properly prepared. These findings by the trial court are adequately supported by the record and will not be disturbed on review. Broncucia v. McGee, 173 Colo. 22, 475 P.2d 336.
[3] Accordingly, Kehn's performance under his contract with UDCC having been prevented by UDCC, no "abandonment" of work within the meaning of § 38-22-109(7), C.R.S. 1973, occurred. Further, defendants asserted at the trial that Kehn had substantial work to do on the contract as of November 20, 1973, and therefore, under defendant's theory of the case, the project was not complete as of that date. Thus, the "triviality" section of the statute is not applicable.
Consequently, the lien filed on February 6, 1974, was within "three months after the day on which the last labor was performed," and the court properly determined that it was timely filed. Section 38-22-109(5), C.R.S. 1973.
Judgment affirmed in part, reversed in part, and cause remanded for further proceedings consistent herewith.
JUDGE KELLY and JUDGE STERNBERG concur.