Barlow's, Inc. v. Bannock Cleaning Corp.

• Decision Date: 13 May 1982
• Docket Number: No. 13632,13632
• Citation: 647 P.2d 766,103 Idaho 310
• Parties: BARLOW'S, INCORPORATED, an Idaho corporation and Dean Rowsell, d/b/a Rowsell's True Value Home Center, Plaintiffs, Counter-Defendants and Respondents, v. BANNOCK CLEANING CORPORATION, Defendant, Cross-Defendant and Respondent, The ESTATE OF Marc WUTHRICH, Deceased and Karl Wuthrich, Personal Representative of the Estate of Marc Wuthrich, Defendants, Counter-Claimants, Cross-Plaintiffs, Third-Party Plaintiffs and Appellants, v. BANNOCK CLEANING CORPORATION and Richard B. Welch and Janice Welch, and Leo R. Ladle, individually and as Trustees for Bannock Cleaning Corporation, a defunct corporation, and John Doe I through XIII and Jane Doe I through XIII, Cross-Defendants, Third-Party Defendants and Respondents.
• Court: Idaho Court of Appeals

Page 766

647 P.2d 766

103 Idaho 310

BARLOW'S, INCORPORATED, an Idaho corporation and Dean Rowsell, d/b/a Rowsell's True Value Home Center, Plaintiffs, Counter-Defendants and Respondents, v. BANNOCK CLEANING CORPORATION, Defendant, Cross-Defendant and Respondent, The ESTATE OF Marc WUTHRICH, Deceased and Karl Wuthrich, Personal Representative of the Estate of Marc Wuthrich, Defendants, Counter-Claimants, Cross-Plaintiffs, Third-Party Plaintiffs and Appellants, v. BANNOCK CLEANING CORPORATION and Richard B. Welch and Janice Welch, and Leo R. Ladle, individually and as Trustees for Bannock Cleaning Corporation, a defunct corporation, and John Doe I through XIII and Jane Doe I through XIII, Cross-Defendants, Third-Party Defendants and Respondents.

No. 13632.

Court of Appeals of Idaho.

May 13, 1982.

Rehearing Denied June 29, 1982.

Petition for Review Aug. 30, 1982.

R. M. Whittier, Whittier & Souza, P. A., Pocatello, for defendants, counter-claimants, cross-plaintiffs, third-party plaintiffs and appellants.

Ronald J. Jarman of Pocatello, for plaintiffs, counter-defendants and respondents Barlow's, Inc., and Dean Rowsell.

Keith A. Zollinger, McDermott & McDermott, Pocatello, for cross-defendants, third- party defendants and respondents Richard B. Welch and Janice Welch.

BURNETT, Judge.

This case arises from failure by a general contractor, Bannock Cleaning Corporation, to pay for subcontracted labor and materials on a home repair project. Two subcontractors, Dean Rowsell and Barlow's, Inc., filed liens against the subject property and commenced this action to foreclose their liens. The personal representative of Marc Wuthrich, deceased owner of the property, counterclaimed against the subcontractors for filing allegedly invalid liens; and he cross-claimed against the corporate general contractor. He also filed a third-party action against the corporation's officers, Richard and Janice Welch, alleging fraud and failure to comply with bulk sales laws in transferring corporate assets. ¹

The district court entered summary judgment in favor of the subcontractors on their liens, in favor of the property owner on his claim against the corporate general contractor, and in favor of the corporate officers on the claim made against them. The property owner has appealed the rulings in favor of the subcontractors and corporate officers. When the issues are consolidated, we are asked to decide three principal questions: (1) Do any procedural obstacles, or genuine issues of material fact, preclude summary judgment for the subcontractors? (2) Has the property owner established a genuine issue concerning his allegations of fraud and violation of bulk sales laws? (3) Are any of the parties entitled to attorney fees on appeal?

We affirm the judgment for the corporate officers and one of the subcontractors, Barlow's, Inc. As to the other subcontractor, Dean Rowsell, we vacate the judgment and remand for further proceedings to resolve a genuine issue of material fact concerning the validity of his lien.

I

The property owner challenges summary judgment for the subcontractors on both procedural and substantive grounds. We examine the procedural question first. Prior to entering summary judgment, the district court had denied a motion by the subcontractors for summary judgment on their claims. Later, the property owner and corporate officers filed similar motions of their own. Following a hearing on those motions, the district court entered summary judgment on all claims, including those of the subcontractors. The property owner now argues that the court improperly "revived" the subcontractors' prior motions for summary judgment.

We do not accept this characterization of the district court's decision. More precisely stated, when the property owner made his motion, the district court granted summary judgment against him as the moving party and in favor of the subcontractors as non-moving parties. The result undoubtedly disturbed the property owner, but the court acted within its authority.

A motion for summary judgment urges the trial court to hold that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c). However, if the court determines, after a hearing, that no genuine issues of material fact exist, the court may enter judgment for the parties it deems entitled to prevail as a matter of law. Thus, in appropriate circumstances, the court is authorized to enter summary judgment in favor of non-moving parties. E. g., Rasmuson v. Walker Bank & Trust Co., 102 Idaho 95, 625 P.2d 1098 (1981); Just's, Inc. v. Arrington Const. Co., Inc., 99 Idaho 462, 583 P.2d 997 (1978). Similar authority exists under the federal counterpart to I.R.C.P. 56. See generally 10 C. Wright & A. Miller, Federal Practice and Procedure § 2720 (1973). The court's power to enter summary judgment is not diminished by the mere fact that a prior motion for summary judgment has been denied. A denial of summary judgment does not reach the merits of the case. It is not final. The court may consider motions for summary judgment on more than one occasion, and may be persuaded to grant relief formerly denied. Cf. 10 C. Wright & A. Miller, supra § 2717, at 445-46; Brawner v. Martin & Jones Produce Co., Inc., 116 Ga.App. 324, 157 S.E.2d 514 (1967).

We turn now to the substantive question of whether genuine issues of material fact precluded summary judgment for the subcontractors. In early 1978, the property owner's home was partially destroyed by fire. His insurance company engaged the general contractor to repair the damage. The general contractor subcontracted with Barlow's to perform electrical work, and with Rowsell to perform carpentry work as well as to furnish some building supplies.

From the subcontractors' affidavits and attached documentation, it appears that Barlow's performed most of its services during the summer of 1978. However, Barlow's did not complete the electrical work until January, 1979, when certain modifications were made at the direction of the state electrical inspector. It further appears that Rowsell also performed most of his services, and supplied materials, during the summer of 1978, but did not complete certain carpeting and cabinetry work until November, 1978. The property owner's insurance company paid the general contractor, but the contractor discontinued business in December, 1978, without fully paying the subcontractors. Rowsell filed a labor and materialmen's lien against the property approximately fifty-six days after his November work, and Barlow's filed a similar lien approximately eleven days after its work in January.

The property owner argues that neither lien was timely filed. Idaho Code § 45-507, as applied to a subcontractor, requires that his lien be filed for record within sixty days:

(a)fter the completion of any building, improvement or structure, or after the completion of the alteration or repair thereof, or in case he cease to labor or perform professional services thereon before the completion thereof, then after he so ceases to labor or to perform professional services or after he has ceased to labor or to perform professional services thereon for any cause, or after he has ceased to furnish materials therefor ....

The statute is not a model of clarity, but it has been interpreted to mean that the time for filing a lien starts to run when the claimant performs his last substantial work or makes his last substantial delivery of materials. See Gem State Lumber Co. v. Witty, 37 Idaho 489, 217 P. 1027 (1923). The time for filing a lien is not extended by performing a service, nor by furnishing an article, that is trivial in character. Pierson v. Sewell, 97 Idaho 38, 539 P.2d 590 (1975); Gem State Lumber Co. v. Witty, supra; cf. Mitchell v. Flandro, 95 Idaho 228, 506 P.2d 455 (1973).

In this case, the property owner's personal representative filed an affidavit generally alleging that all work by the subcontractors had been completed by October 1, 1978. No basis or factual support for this allegation was stated. Neither did the personal representative's affidavit contain any specific facts controverting those set forth in the subcontractors' affidavits and documentation. To the contrary, another affidavit by the same personal representative referred to work by Rowsell in November, 1978, and by Barlow's in January, 1979, and said merely that the personal representative had not authorized such work.

The district court held that the property owner had not raised a genuine issue as to when the subcontractors' work actually was performed. On appellate review, it is axiomatic that we must construe the record favorably to the party resisting summary judgment. E. g., Intermountain Business Forms, Inc., v. Shepard Business Forms Co., 96 Idaho 538, 531 P.2d 1183 (1975). However, this axiom does not blind us to the difference between a factual showing and a bare allegation. Affidavits containing general or conclusory allegations, unsupported by specific facts, are not sufficient to preclude entry of a summary judgment where, as here, the opposing affidavits set forth specific and otherwise uncontroverted facts. See Roper v. Elkhorn at Sun Valley, 100 Idaho 790, 605 P.2d 968 (1980); Casey v. Highlands Ins. Co., 100 Idaho 505, 600 P.2d 1387 (1979). We hold that the personal representative's self-contradictory and unsupported allegation, that all work was completed by October 1, 1978, did not raise a genuine issue as to when the work actually was done.

The property owner next focuses particularly upon Rowsell's lien and contends that the November work was outside the scope of Rowsell's agreement with the general contractor. The issue is framed by one of Rowsell's own affidavits, in which he stated:

I was advised by both the owner of Bannock Cleaning (general contractor) and Mark (sic) Wuthrich (property owner) that the check for payment for my...