Opinion
No. C1-98-236.
Filed June 2, 1998.
Appeal from the District Court, Ramsey County, File No. C4-96-7267.
John L. Lindell, Halstad and Larson, PLC, (for appellants)
John E. Daubney, Daubney Law Office, (for respondent)
Considered and decided by Crippen, Presiding Judge, Davies, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. sec. 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Homeowners appeal from summary judgment for subcontractors in subcontractor's mechanic's lien foreclosure action. We affirm and remand.
FACTS
On December 7, 1995, Scott and Theresa Montgomery purchased a home. Shortly thereafter, they hired Thomas Tarlizzo to improve the home, and Tarlizzo contracted with subcontractor Linoleum Sales Company (Linoleum) to install carpet and padding. Linoleum was not paid the $891 due for its labor and materials.
On July 23, 1996, Linoleum served a complaint for mechanic's lien foreclosure on the Montgomerys and Tarlizzo. The Montgomerys answered, and both parties moved for summary judgment. On December 6, 1996, the district court entered default judgment against Tarlizzo, and ordered a money judgment for Linoleum against the Montgomerys personally.
On September 15, 1997, Linoleum moved for foreclosure of its mechanic's lien and sale of the premises. The district court ruled for Linoleum, ordering a $891 judgment lien against the property, a sheriff's sale of the property, and $400 attorney fees. The Montgomerys appeal.
DECISION 1. District Court Jurisdiction
We review de novo a trial court's jurisdiction to issue an order. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n , 358 N.W.2d 639, 642 (Minn. 1984).
The Montgomerys contend that once the 90-day appeal period expired from the December 6, 1996, summary judgment, the district court lost jurisdiction in the action. The Montgomerys therefore argue that Linoleum could not obtain relief through its foreclosure motion. We disagree.
In its complaint, Linoleum demanded recovery of the debt and foreclosure of its mechanic's lien.
A party may maintain concurrent actions to recover on the underlying debt and to foreclose on a mechanic's lien. Kenko, Inc. v. Lowry Hill Constr. Co. , 392 N.W.2d 18, 21 (Minn.App. 1986), review denied (Minn. Oct. 22, 1996). The district court's ruling on Linoleum's foreclosure motion was not an amendment of the December 12, 1996, summary judgment against the Montgomerys. Instead, the court simply granted Linoleum the statutory means to enforce its claim by foreclosure as Linoleum had requested in its complaint. The district court had jurisdiction to allow Linoleum's mechanic's lien foreclosure motion.
2. Summary Money Judgment
The Montgomerys also assert that if the district court had jurisdiction to rule on Linoleum's foreclosure motion, the summary judgment should be vacated due to lack of contractual privity between the Montgomerys as project owners and Linoleum as a subcontractor. Apparently the Montgomerys did not assert this defense either in responding to Linoleum's motion for summary judgment or within the appeal period thereafter.
In general, a property owner is not liable to a subcontractor for work or materials where the owner is not a party to the contract between the contractor and the subcontractor. Skjod v. Hofstede , 402 N.W.2d 839, 841 (Minn.App. 1987). In Kenko , a subcontractor sought recovery from a contractor, and thus had a contractual basis to establish liability of the contractor, in addition to the mechanic's lien action. 392 N.W.2d at 19. Here, unlike the subcontractor in Kenko , the Montgomerys were not parties to the contract with Linoleum.
We need not consider whether the privity defense remains viable in this appeal, however, because Linoleum cannot lawfully obtain a double recovery through a two-step money judgment/lien foreclosure procedure. We affirm the district court as to its jurisdiction of the foreclosure, but, in order to ensure against double recovery, we remand to the district court with instructions to include in its mechanic's lien foreclosure order confirming sale (or such other contemporary order) a provision declaring that the prior money judgment is automatically satisfied upon the completion of the mechanic's lien foreclosure action.