Diehl Lumber Transp. Inc. v. Mickelson

• Decision Date: 21 November 1990
• Docket Number: No. 890179-CA,890179-CA
• Citation: 802 P.2d 739
• Parties: DIEHL LUMBER TRANSPORTATION INC., Plaintiff and Appellant, v. Glen J. MICKELSON d/b/a Glen's Service Company, Defendant and Appellee, Glen J. MICKELSON d/b/a Glen's Service Company, Third-Party Plaintiff and Appellee, v. HERITAGE CORPORATION, a Utah corporation; Comtel, a Utah corporation; American West Mortgage Corporation, a Utah corporation; Zions First National Bank, a Utah corporation; and Far West Savings & Loan, Third-Party Defendants and Appellant.
• Court: Utah Court of Appeals

Page 739

802 P.2d 739

DIEHL LUMBER TRANSPORTATION INC., Plaintiff and Appellant, v. Glen J. MICKELSON d/b/a Glen's Service Company, Defendant and Appellee, Glen J. MICKELSON d/b/a Glen's Service Company, Third-Party Plaintiff and Appellee, v. HERITAGE CORPORATION, a Utah corporation; Comtel, a Utah

corporation; American West Mortgage Corporation, a Utah

corporation; Zions First National Bank, a Utah corporation;

and Far West Savings & Loan, Third-Party Defendants and Appellant.

No. 890179-CA.

Court of Appeals of Utah.

Nov. 21, 1990.

Richard A. Rappaport (argued), Keith W. Meade (argued), Cohne, Rappaport & Segal, Randy B. Coke, Beaslin, Nygaard, Coke & Vincent, Salt Lake City, for Diehl Lumber & Zions First Nat. Bank.

M. Richard Walker (argued), M. Richard Walker & Associates, Salt Lake City, for respondent Mickelson.

Before BENCH, GREENWOOD and JACKSON, JJ.

OPINION

GREENWOOD, Judge:

Appellants Diehl Lumber Transportation, Inc. (Diehl) and Zions First National Bank (Zions) appeal the trial court's judgment for appellee Glen J. Mickelson d/b/a Glen's Service Company (Mickelson) authorizing Mickelson to foreclose his mechanic's lien as against Diehl and Zions. We reverse.

FACTS

The property that is the subject of this litigation is a building in Murray, Utah, referred to as the "Comtel building," owned and constructed by Heritage Corporation for Comtel Corporation, the building's intended lessee. Heritage hired Mickelson to provide electrical materials, equipment and labor for the Comtel building. Financing for building construction was obtained from American West Mortgage, which assigned its interest to Far West Savings and Loan. Zions obtained title to the property after default and foreclosure under Far West's trust deed. Diehl purchased the property from Zions, with Zions retaining a trust deed interest.

Prior to the foreclosure sale, Heritage had failed to pay the sum of $27,026.46 owing to Mickelson pursuant to the contract between them. Mickelson filed a lien against the property, which was recorded August 21, 1986, and stated, "Last Labor/Material provided on or about: 05/15/86." The lien did not specify a dollar amount.

Diehl commenced this action on October 28, 1986. Diehl's complaint sought only a restraining order to prevent Mickelson from entering the Comtel building and removing property that Mickelson had installed. Mickelson filed an answer and counterclaim, claiming he retained title to materials he had installed because he had not been paid. On November 12, 1986, Mickelson filed a motion for a writ of replevin, alleging he had installed items of personal property and equipment in the Comtel building.

On June 12, 1987, Mickelson filed, without prior leave of court, a proposed third-party complaint seeking for the first time to foreclose a mechanic's lien against Heritage, Comtel Corporation, American West, and Zions. On June 18, 1987, Mickelson filed a "Motion for Leave to File Third Party Complaint," and a notice of hearing designating June 29, 1987 as the hearing date on the motion. On June 29, 1987, the court entered a minute entry which stated that "Based on the Defendant's Motion Court orders the Defendant's Motion for Leave to File Third Party Complaint be continued to July 6, 1987 at 2:00 p.m." Nothing in the record indicates the motion was actually considered and/or ruled upon on either June 29 or July 6, 1987. On November 25, 1987, the court entered a nunc pro tunc order stating that Mickelson's motion "came on regularly for hearing on the 29th day of June, 1987," and that Mickelson "is hereby granted [sic] to amend and file the Third Party Complaint herein, effective as of the date of filing." The order was apparently entered without further motion, notice, or hearing. On February 1, 1988, Mickelson filed a "Motion for Leave to Amend Counterclaim" against Diehl to conform to the third party complaint issues, namely the foreclosure action. This motion was granted.

After trial, the court denied Mickelson's claim that he had a valid security interest in the items installed, but ordered that he could foreclose his mechanic's lien against Zions and Diehl, finding Mickelson had priority over their interests. Diehl and Zions appeal on several bases, including an assertion that the foreclosure action against each of them was untimely. We agree and therefore reverse.

NUNC PRO TUNC ORDER

A defendant must obtain leave of court to file as a plaintiff, a third-party complaint more than ten days after service of its original answer. Utah R.Civ.P. 14(a). The parties dispute the date upon which Mickelson last worked on the Comtel building. However, the court found that Mickelson provided labor, materials and equipment until June 10, 1986, when he suspended work. That date is substantially later than that indicated in the recorded lien (May 15, 1986) or claimed by Diehl and Zions. However, for purposes of our nunc pro tunc analysis, we will accept the trial court's determination that June 10, 1986 was the last day Mickelson provided work or materials to the project.

In order to foreclose a mechanic's lien, a claimant must commence court action within twelve months after (a) completion of the contract, or (b) suspension of work for thirty days. Utah Code Ann. § 38-1-11 (1988); Mickelsen v. Craigco, Inc., 767 P.2d 561, 563 (Utah 1989). Therefore, Mickelson was required to commence his foreclosure action within twelve months plus thirty days after June 10, 1986, which Mickelson contends gave him until July 9 1987. Failure to commence a timely mechanic's lien foreclosure action divests the court of jurisdiction. AAA Fencing Co. v. Raintree Dev. & Energy Co., 714 P.2d 289 (Utah 1986) (per curiam).

Mickelson commenced the foreclosure proceeding against Zions by filing his third-party complaint on June 12, 1987. Because June 12 was more than ten days after filing Mickelson's answer, he was required to obtain leave of court to file the third-party complaint. The motion for leave was filed June 18, 1987, and, as explained previously, was not actually granted until November 25, 1987, by the court's nunc pro tunc order, to be effective as of the date of filing. The court's findings of fact state that the leave to file the third-party complaint "was given by stipulation of the plaintiff's attorney and a subsequently signed Nunc Pro Tunc Order of the Court."

The only evidence in the record of a stipulation is a letter dated November 24, 1987, from Diehl's former counsel, stating as follows:

Dear Judge Sawaya:

Pursuant to the request of Richard Walker, Esq., I wanted to advise the Court that in June of 1987, Mr. Walker asked if I would oppose his Motion to Amend his pleadings to file a Third-Party Complaint. At that time I informed him that Diehl Lumber Transportation would not oppose the Motion, feeling that the Court would grant the motion irrespective of opposition.

The Utah Supreme Court has stated that a nunc pro tunc order's function is "not to make an order now for then, but to enter for then an order previously made." Preece v. Preece, 682 P.2d 298, 299 (Utah 1984). There are two types of nunc pro tunc orders: (1) to correct a clerical error; or (2) to provide a remedy when a party dies after submission of a case but before judgment is entered. Where the order is to correct a clerical error, the court's act is effective earlier so that the record accurately reflects what happened. "A motion nunc pro tunc is used to make the record speak the truth; it may not be used to correct the court's failure to speak." Id. Therefore, the nunc pro tunc order is designed to reflect the existence and content of a previous order.

The function of a nunc pro tunc order is not to correct some affirmative action of the court which ought to have been taken, but its purpose is to correct the record which has been made, so that it will truly express the action taken but which through inadvertence or mistake was not truly recorded.

Application of Bower, 171 Neb. 452, 106 N.W.2d 689, 691 (1960) (quoting Akins v. Chamberlain, 164 Neb. 428, 82 N.W.2d 632, 633 (1957)).

Courts have taken different positions regarding permissible means of proving clerical error. Some hold that an order nunc pro tunc cannot be based merely upon recollection of the judge or other persons nor on ex parte affidavits or testimony. O'Dell v. Dowd, 102 Ill.App.3d 189, 57 Ill.Dec. 650, 652, 429 N.E.2d 548, 550 (1981). Others have held that the personal recollection of the court, records, or witness testimony may be used, but not for the purpose of correcting an erroneous judgment. Ruby v. Wolf, 39 Ohio App. 144, 177 N.E. 240 (1931). Whatever type of evidence is considered sufficient, however, "[t]here must be some evidence that the fact which is being recorded now existed previously." Huffman v. Huffman, 424 N.E.2d 456, 460 (Ind.Ct.App.1981).

In Schmorrow v. Sentry Ins. Co., 138 Wis.2d 31, 405 N.W.2d 672, 674-75 (Ct.App.1987), the court indicated that where statutory jurisdiction is at issue, strict compliance would be required. The court noted that a nunc pro tunc order

is an entry made now of something actually previously done, to have the effect of the former date.... Its office is not to supply omitted action, but to rectify an inadvertent or mistaken omission in the record of an action actually taken.... A court's nunc pro tunc authority is limited to rectifying what might be termed mechanical errors; it is appropriately exercised to conform an order or judgment to that actually pronounced.

Id. 405 N.W.2d at 675 (citations omitted). Similarly, in Kettner v. Snow, 13 Utah 2d 382, 375 P.2d 28, 30 (1962), our supreme court held that using nunc pro tunc power,

clerical errors may be corrected or omissions supplied so the record will accurately reflect that which in fact took place. However, this device cannot properly be used in the manner resorted to here to revive the time for taking a required step in a legal proceeding after...