Builders Supply Co., Inc. v. Carr

• Citation: 276 N.W.2d 252
• Decision Date: 01 March 1979
• Docket Number: No. 12051,12051
• Parties: BUILDERS SUPPLY COMPANY, INC., a corporation of Witten, South Dakota, Plaintiff and Appellant, v. Robert CARR, Defendant and Respondent.
• Court: Supreme Court of South Dakota

Page 252

276 N.W.2d 252

BUILDERS SUPPLY COMPANY, INC., a corporation of Witten South Dakota, Plaintiff and Appellant, v. Robert CARR, Defendant and Respondent.

No. 12051.

Supreme Court of South Dakota.

Argued Dec. 2, 1977.

Decided March 1, 1979.

John J. Simpson, Winner, for plaintiff and appellant.

J. M. Grossenburg, of Day & Grossenburg, Winner, for defendant and respondent.

DUNN, Justice (on reassignment).

This case involves an action for foreclosure of a mechanic's lien and for judgment on a personal guaranty. Builders Supply Company, Inc. (Builders Supply), appeals from a judgment entered by the trial court on a jury verdict in favor of defendant Robert Carr (Carr). We affirm.

On November 1, 1974, Carr contracted with Robert Jones, d/b/a Artistan Masonry (Jones), for construction of a house upon land owned by Carr in Winner, South Dakota. Jones agreed to furnish all of the labor and materials for the house, and Carr agreed to pay $28,000 to Jones in three equal installments as follows: one-third upon completion of the footings or basement, one-third upon completion of the roof, and one-third upon completion of the entire project. Jones purchased the materials for the house from Builders Supply in Witten, South Dakota. All purchases by Jones were made by charging an open account in Jones' name. Charges were made by Jones on the Carr house project from November 6, 1974, to March 11, 1975.

By February 6, 1975, Carr had paid to Jones the first two installments due under the contract in the amount of $18,666.66. At this same time, Jones owed Builders Supply about $5,000 on open account on the Carr house project. Builders Supply and Jones signed an agreement wherein Jones promised to pay Builders Supply $5,000 out of the final installment of $9,333.33 due him upon completion of the Carr house. Representatives of Builders Supply discussed this agreement with Carr, and Carr orally agreed to withhold the $5,000 from the final installment payable to Jones upon completion of the house.

After the agreement between Builders Supply and Jones was entered into, Builders Supply continued to furnish materials to Jones. Jones then approached Carr three times in February for advances on the amount due upon completion of the house in order to meet his payroll demands, and Carr furnished advances totaling $1,650. On March 8, 1975, Jones again approached Carr for an advance of some $2,800 for payroll. This demand for an advance of $2,800 was getting into the last $5,000 of the final installment due Jones upon completion of the house, and Carr had orally agreed to withhold the final $5,000 for Builders Supply so Carr contacted Builders Supply for guidance. Carr testified that he got the approval of Builders Supply's court-appointed receiver, Leach, and its manager, Weatherman, to advance further amounts to Jones. Weatherman testified that he gave no such approval, while Leach testified that Carr did indeed call him and that if Weatherman said it was all right, then it was all right with him.

Builders Supply continued to furnish materials to Jones until March 17, 1975. By that time, Jones owed Builders Supply about $9,000. Builders Supply approached Carr and presented him with the bill. Carr testified that he advised Builders Supply at that time that if it would furnish what was needed to finish the project, he would pay for the materials. Builders Supply, however, did not extend further credit to Jones or supply more materials for the project based upon Carr's statement and filed a mechanic's lien against the Carr house on March 17, 1975, claiming a lien for the materials furnished to Jones. By April 6, 1975, Carr had advanced a total of $5,700 to Jones and his laborers for payroll expenses in addition to paying the first two installments of $18,666.66 due Jones. At that point in time, Jones defaulted on the contract by failing to complete the house project. Since the default, Carr has incurred an additional $9,200 in an effort to complete the project. This amounts to a total expenditure by Carr of approximately $34,000, plus Builders Supply's claim in this action for an additional $9,000 on a house which he had originally contracted to be built for $28,000.

On June 13, 1975, Carr made a written demand pursuant to SDCL 44-9-26 on Builders Supply to commence a suit to enforce the mechanic's lien it had filed. Builders Supply commenced this action seeking foreclosure of the lien and, alternatively, a personal judgment against Carr on the theory that Carr guaranteed payment of Jones' account with Builders Supply. The trial court dismissed Jones as a third-party defendant prior to the jury trial because Jones could not be located and did not answer the third-party complaint against him.

On February 27, 1976, the trial court dismissed the lien foreclosure action of Builders Supply because the lien upon which the complaint was based did not contain an itemized statement of the account upon which the lien was claimed as required by SDCL 44-9-16. The trial court also granted a motion by Builders Supply to file an amended complaint, denied its motion to file a reply to Carr's answer, and denied its motion for summary judgment on the action for personal judgment on the theory of guaranty. The case was tried before a jury as to the portion of Builders Supply's complaint praying for personal judgment on the guaranty theory. The jury returned a verdict for Carr on August 13, 1976, and the trial court entered its judgment on the verdict on August 24, 1976. On September 7, 1976, the trial court denied a motion for a new trial and Builders Supply filed this appeal.

Builders Supply first contends that the trial court erred in granting Carr's motion to dismiss the lien foreclosure action and argues that such dismissal was not proper because no findings of fact or conclusions of law were entered by the trial court. The requirements for a valid lien statement include an itemized statement of the account upon which the lien is claimed. SDCL 44-9-16(7). The lien statement filed by Builders Supply contained lump sum dollar amounts as follows:

                Brick, mortar, sand and freight        $1,252.06
                Lumber-siding and flooring, plumbing
                  electrical, etc.                     $7,784.23
                                                       ---------
                                                       $9,036.29
                

It can certainly be concluded that this does not constitute "(an) itemized statement of the account upon which the lien is claimed." See Crescent Electric Supply Co. v. Nerison, 1975, S.D., 232 N.W.2d 76. Builders Supply argues that it furnished a complete statement to Carr after commencement of this action pursuant to Carr's request for a bill of particulars. This is of no effect, however, because the statute requires an itemized statement to be filed with the register of deeds. That was not done in this case.

With regard to the lack of findings of fact and conclusions of law, we turn to SDCL 15-6-52(a) which states that findings of fact and conclusions of law are unnecessary on decisions of motions under SDCL 15-6-12 or 15-6-56 or any other motions. The record reveals that Carr specifically requested the trial court to treat his motion to dismiss the lien foreclosure action as a motion for judgment on the pleadings pursuant to SDCL 15-6-12(c). The trial court could properly treat the motion to dismiss as one for an order for judgment on the pleadings even though the motion was not in strict compliance with SDCL 15-6-12(c). Thies v. Renner, 1960, 78 S.D. 617, 106 N.W.2d 253. A motion to dismiss is an expeditious remedy to test the legal sufficiency of a pleading and deals only with questions of law arising thereon. Akron Savings Bank v. Charlson, 1968, 83 S.D. 251, 158 N.W.2d 523. It is a proper remedy only when no issue of fact is raised. Hauck v. Bull, 1961, 79 S.D. 242, 110 N.W.2d 506. Since the trial court had only to examine the lien statement which was attached to the complaint to decide whether the itemization was sufficient or insufficient pursuant to SDCL 44-9-16 and the Crescent Electric Supply standards, no issues of fact were decided; therefore, no formal findings of fact or conclusions of law were required, and the trial court did not err in granting the motion to dismiss the lien foreclosure action.

Builders Supply next contends that the trial court erred in refusing to allow its reply to Carr's amended answer. On July 26, 1976, Carr moved to file an amended answer to the amended complaint of Builders Supply and served a copy of the amended answer on counsel for Builders Supply. At a pretrial conference on the date of trial, the trial court accepted both the amended complaint and the amended answer. Carr's amended answer affirmatively pled that the alleged oral guaranty was not in writing which rendered it unenforceable. Builders Supply sought leave of the trial court to reply to the effect that Carr was estopped from pleading such because Builders Supply relied upon the oral guaranty to its detriment. SDCL 15-6-7(a) states that the court May order a reply to an answer. This indicates that the order is discretionary. We have stated that ordinarily a reply is not necessary where the answer does not contain a counterclaim or where the court does not order a reply to be made. Hauck v. Bull, supra. This reasoning was applied in Stenson v. Elfmann, 1910, 26 S.D. 134, 128 N.W. 588, where this court stated that a plaintiff suing for specific performance of a contract to convey real estate did not have the right to file a reply setting up matters of estoppel where the answer was a general denial and a defense not constituting a counterclaim. In any event, Builders Supply is not unduly prejudiced by the trial court's refusal to allow the reply because the allegations in Carr's amended answer are to be treated as denied. SDCL 15-6-8(d). In fact, estoppel was constructively raised in the amended complaint of Builders Supply where it pled that there was an...