Daniels v. Deseret Federal Sav. & Loan Ass'n
| Decision Date | 05 April 1989 |
| Docket Number | No. 880135-CA,A-O,880135-CA |
| Parties | Jack C. DANIELS, Third-Party Plaintiff and Appellant, v. DESERET FEDERAL SAVINGS & LOAN ASSOCIATION,ne Construction, Inc., Miller Brick Sales, Eugene E. Doms, and Michael R. McCoy, Respondents. CEN CORPORATION, Plaintiff, v. Jack C. DANIELS, Debra Estes, Scott Berry, Debra Ann Sitzberger, and Amy Stanton Eagleson, Defendants. |
| Court | Utah Court of Appeals |
Gordon A. Madsen, Murray, and Robert C. Cummings, Salt Lake City, for third-party plaintiff and appellant.
David R. Olsen, Carl F. Huefner, and Charles P. Sampson, Salt Lake City, for respondents.
Before DAVIDSON, GARFF and JACKSON, JJ.
Jack C. Daniels appeals from a summary judgment in favor of Deseret Federal Savings & Loan Association, dismissing his notice to hold and claim a lien on property for which he was both a co-owner and the general contractor. Daniels' claim concerned the timeliness of filing his notice and the profits owed to him as a limited partner in Park Avenue Development Company ("Park Avenue"). The trial court held that his lien was both untimely and invalid. We affirm.
In 1980, Daniels invested approximately $28,000 in the development of an eight-unit condominium project in Park City, Utah, thereby acquiring an interest through a limited partnership in Park Avenue. The agreement between Park Avenue and Daniels provided that Daniels would receive approximately $80,000 for his share in the profits from the sale of the condominiums and for overhead. Park Avenue also hired Daniels to serve as the general contractor for the condominium project and agreed to pay him approximately $15,000 for his services.
On August 14, 1980, Deseret approved a construction loan to Park Avenue and construction on the project commenced. By the end of July 1981, Daniels had completed all of the construction required pursuant to the construction contract and Park City issued certificates of final inspection and occupancy for the project. Daniels was paid $15,000 for services and labor, but was not paid his promised share of the profits from the sale of the condominiums.
Apparently, Daniels intended to file a notice to hold and claim a lien on the project, for the $80,000 "profit," within the statutory period required for filing. However, the owners of the project were trying to obtain refinancing and they requested Daniels not to file his mechanic's lien for the profit and overhead. In return, the owners promised Daniels that they would allocate his share of the profits to him within two weeks. In reliance on this promise, Daniels did not file his mechanic's lien within the requisite 100 day period. However, the promised payment was not made.
On December 1, 1981, several water pipes in the condominiums froze. The owners called Daniels to inspect the pipes and to make repairs. Daniels inspected the pipes and made phone calls to subcontractors in order to facilitate repairs. On February 3, 1982, Daniels filed a notice of lien against the project, claiming a lien for the $80,000 "profit." He listed December 1, 1981, as the last day labor had been furnished on the project.
In October 1983, Daniels filed a complaint against Deseret to foreclose his claimed lien on the property. Deseret's construction loan to Park Avenue was secured by deeds of trust which Deseret executed February 22, 1982, and recorded March 1, 1982. Deseret subsequently moved to dismiss Daniels' complaint on the basis that Daniels' lien was not filed in a timely fashion as required by Utah Code Ann. § 38-1-7 (1988) and therefore, Daniels had no cause of action as a matter of law. CEN Corporation, subsequent owner of the real property, also moved to declare Daniels' lien void. The trial court agreed that Daniels had not timely filed a mechanic's lien and therefore granted summary judgment in favor of Deseret and CEN Corporation.
Daniels raises two issues on appeal: Did the trial court err when it found Daniels' work on December 1, 1981, did not extend the time limit for filing a notice to hold and claim a lien? Did the trial court err when it held Deseret is not estopped from raising the affirmative defense that the mechanic's lien was not timely filed?
A court may grant summary judgment if the evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R.Civ.P. 56(c). Because a summary judgment is a matter of law, the appellate court gives the trial court's conclusions no particular deference but rather applies the same standard as that applied by the trial court. Briggs v. Holcomb, 740 P.2d 281, 283 (Utah App.1987). However, "[o]n appeal from a summary judgment, we review the evidence in a light most favorable to the losing party." Atlas Corp. v. Clovis Nat'l Bank, 737 P.2d 225, 229 (Utah 1987); Geneva Pipe Co. v. S & H Ins. Co., 714 P.2d 648, 649 (Utah 1986).
A general contractor must record a mechanic's lien within 100 days after completion of the contract. Utah Code Ann. § 38-1-7 (1988). Completion is marked by the end of a related series of tasks required for substantial completion of the contract. "Trivial or minor adjustments made casually or long after the main work is completed cannot be used to tie on to as the last labor done or materials furnished." Wilcox v. Cloward, 88 Utah 503, 56 P.2d 1, 6-7 (1936).
Well over 100 days after completion of the contract, Daniels spent a day inspecting the damage from the frozen water pipes and calling subcontractors in order to make repairs. Daniels contends that this extends the period for filing his mechanic's lien. However, the trial court found:
The work the owners wanted done in December of 1981 was not a continuation of the...
To continue reading
Request your trial
-
2 Ton Plumbing, L. L.C. v. Thorgaard
...of the statute's attorney fees provision.” (citation omitted) (internal quotation marks omitted)); Daniels v. Deseret Fed. Sav. & Loan Ass'n, 771 P.2d 1100, 1103 (Utah Ct.App.1989) (“The profits a person is entitled to as the result of an investment do not constitute improvements to the rea......
-
Kitchen v. Cal Gas Co., Inc.
...R.Civ.P. 56 (1991). We review a trial court's grant of summary judgment under a "correctness" standard. Daniels v. Deseret Fed. Sav. & Loan Assoc., 771 P.2d 1100, 1101-02 (Utah App.), cert. denied, 783 P.2d 53 (Utah 1989). We accord no deference to the trial court's conclusion that the fact......
-
2 Ton Plumbing, L.L.C. v. Thorgaard
...of the statute's attorney fees provision.” (citation omitted) (internal quotation marks omitted)); Daniels v. Deseret Fed. Sav. & Loan Ass'n, 771 P.2d 1100, 1103 (Utah Ct.App.1989) (“The profits a person is entitled to as the result of an investment do not constitute improvements to the rea......
-
Interiors Contracting, Inc. v. Smith, Halander & Smith Associates
...opposed to something merely minor or trivial which might be used as a pretext to extend the lien period."); Daniels v. Deseret Fed. Sav. & Loan Ass'n, 771 P.2d 1100, 1102 (Utah App.) ("Completion is marked by the end of a related series of tasks required for substantial completion of the co......