Aztec Wood Interiors, Inc. v. Andrade Homes, Inc.

• Decision Date: 25 March 1986
• Docket Number: No. 15972,15972
• Citation: 104 N.M. 45,1986 NMSC 20,716 P.2d 236
• Parties: AZTEC WOOD INTERIORS, INC., Plaintiff-Appellant, v. ANDRADE HOMES, INC., Jerry Alcone and Pat Alcone, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 236

716 P.2d 236

104 N.M. 45

AZTEC WOOD INTERIORS, INC., Plaintiff-Appellant, v. ANDRADE HOMES, INC., Jerry Alcone and Pat Alcone Defendants-Appellees.

No. 15972.

Supreme Court of New Mexico.

March 25, 1986.

Daniel E. Duncan, Eileen Paez, Albuquerque, for plaintiff-appellant.

Glass & Fitzpatrick, Charles N. Glass, Albuquerque, for defendants-appellees.

OPINION

FEDERICI, Justice.

Plaintiff-appellant, Aztec Wood Interiors, Inc. (Aztec) brought suit in the District Court of Bernalillo County against Andrade Homes, Inc. (Andrade) and Jerry Alcone and Pat Alcone (Alcones) for debt and money due and to foreclose on a materialmen's lien. The trial court dismissed the complaint and cancelled the lien against the Alcones. Aztec appeals. We affirm.

The Alcones purchased a single family residence built by Andrade. Aztec had a subcontract for cabinet work to be done on the Alcones' home while it was being constructed. Aztec completed its subcontract work on November 27, 1984. The Alcones made the final payment to Andrade on December 11, 1984, at which time Andrade gave to the Alcones an affidavit stating that there were no outstanding liens on the property. Aztec filed its lien on December 28, 1984, thirty-one days after it completed its cabinet work.

The trial court found that NMSA 1978, Section 48-2-10.1 (Cum.Supp.1985) was applicable and made the following conclusions: there was no duty on the property owner (Alcones) to give notice to the subcontractor (Aztec) that final payment was going to be made; the owner is entitled to rely upon the affidavit of the original contractor (Andrade); and, it is the duty of the original contractor to give notice to the subcontractors. The court further concluded that it is the duty of the subcontractor to file a lien in a timely manner, prior to final payment, and that this statute was intended to protect the owner against liability for double payment.

There is no question of fact, and the issue on appeal is whether the trial court erred in its interpretation of Section 48-2-10.1.

Section 48-2-10.1, in pertinent part, states:

A. Payment by the owner * * * to any person entitled to such payment of all amounts due and owing for any construction, improvement * * * the performance of which could give rise to a lien Section 48-2-2 NMSA 1978 * * * upon a residence containing not more than four dwelling units shall discharge all such liens unless prior to such payment any person who is entitled to such lien has filed for record his lien pursuant to Section 48-2-6 NMSA 1978. For the purposes of this section, the original contractor shall not be the agent of the owner.

B. When an original contractor entitled to payment presents his bill for final payment, or an agreement for the sale of the premises, he shall notify the owner * * * in writing that liens may be filed within ... twenty working days. * * * [H]e shall notify in writing all persons * * * whom he has not paid in full that the twenty-day period has commenced and the day upon which it will expire. He shall furnish to the owner * * * an affidavit of mailing * * * of such notification. * * * Upon receipt of the notification, any subcontractor * * * shall, within five days of receipt thereof, certify to the general contractor in writing that his * * * suppliers have been notified. If notice has been given to the owner, * * * payment in full prior to the expiration of the twenty-day period shall not avail the owner * * * of the benefits of Subsection A of this section.

There is no need for us to construe Subsection (A) of Section 48-2-10.1, because the language is clear and unambiguous. Montoya v. McManus, 68 N.M. 381, 362 P.2d 771 (1961). According to Subsection (A), in order to achieve its protection, Aztec must have filed its lien prior to the time the Alcones made the final payment. Since Aztec filed its lien after the Alcones made the final payment on the property, Subsection (A) discharges the Alcones from the lien, unless notice was given under Subsection (B).

Aztec relies upon Subsection (B) of Section 48-2-10.1 in support of its claim that its lien is valid. Aztec suggests that since a subcontractor has ninety days to file a lien pursuant to NMSA 1978, Section 48-2-6 (Cum.Supp.1985), the only way an owner may reduce the lien period to twenty days is to comply with Subsection (B). Aztec contends that before the Alcones could avoid the materialmen's lien, it was their duty to obtain from Andrade an affidavit stating that the subcontractors had been notified that the twenty-day period for filing liens had commenced. Aztec suggests that even though the Alcones obtained and relied upon an affidavit stating that there were no outstanding liens, they are not relieved of the lien because the affidavit failed to contain the language required by Subsection (B), and...