Fasso v. Straten

• Decision Date: 14 January 1982
• Docket Number: No. 79CA1115,79CA1115
• Citation: 640 P.2d 272
• Parties: Pat FASSO, d/b/a Fasso Construction Company, Plaintiff-Appellee, v. Jack R. STRATEN and Mary Ann Straten, Defendants-Appellants. . III
• Court: Colorado Court of Appeals

Page 272

640 P.2d 272

Pat FASSO, d/b/a Fasso Construction Company, Plaintiff-Appellee, v. Jack R. STRATEN and Mary Ann Straten, Defendants-Appellants.

No. 79CA1115.

Colorado Court of Appeals, Div. III.

Jan. 14, 1982.

Sonheim & Helm, Dale H. Helm, Arvada, for plaintiff-appellee.

Brook W. Banbury, Littleton, for defendants-appellants.

SMITH, Judge.

Defendants, Jack and Mary Ann Straten, appeal from a judgment rendered in favor of Pat Fasso, d/b/a Pat Fasso Construction Company, for labor and materials supplied in a home remodeling project. We affirm.

The Stratens engaged Fasso as a building contractor to perform certain remodeling and construction work on their home. The work was made the subject of a written contract and was performed and paid for. Thereafter, the parties entered into a verbal agreement for certain refinishing work. Fasso advised Stratens what he estimated the job would cost. However, the parties' agreement was to the effect that Fasso would be compensated on a time and materials basis. While construction was under way it became apparent that costs would exceed the initial estimate. For this reason the parties met and discussed a possible solution, but at trial differed as to what was agreed. When presented with the final invoice, the Stratens refused to pay, alleging that Fasso had overcharged them, contrary to the agreement reached at the last meeting conducted by the parties.

Thereafter, Fasso commenced suit for the unpaid balance and for foreclosure of a mechanic's lien in the same amount against the Stratens' property. The court found the amount claimed by Fasso to have been substantiated by the evidence and upheld the lien.

I.

Defendants first contend that the trial court erred in granting foreclosure of the mechanic's lien because the action was filed by a fictitious party.

Fasso is a sole proprietor doing business under the name of Pat Fasso Construction Company. However, the caption of his lis pendens incorrectly designated the business as a corporation. All pleadings were also incorrectly styled. When the error became apparent at trial, Fasso requested and was granted leave to amend all captions.

Defendants now contend that Fasso failed to comply with § 38-22-110, C.R.S.1973, regarding the filing of his lis pendens and that the lis pendens is a nullity because it was filed by a fictitious entity. We do not agree.

Fasso's name appeared correctly on the statement of lien and in the body of the lis pendens. The designation of the proprietorship as a corporation appeared only on the caption of the lis pendens and was remedied by amendment. Moreover, the defendants have not shown they were prejudiced in any fashion by the erroneous caption, that is, they received notice as is the purpose of the lis pendens. Hammersley v. District Court, 199 Colo. 442, 610 P.2d 94 (1980). Accordingly, we hold that such an error, when remedied by amendment, is not fatal to plaintiffs' foreclosure action.

We are guided by a similar decision in Marsh v. Coleman, 93 N.M. 325, 600 P.2d 271 (1979). There the claim of lien designated lien claimant simply as a business rather than stating that the claimant was a partnership. The court said:

"There is no requirement under (the applicable statute) that the claim of lien contain a description of a type of entity that filed it. It is only necessary that the name of the claimant appear on the claim of lien, the courts have been liberal in upholding claims or statements in this respect. (citations omitted). Defendants do not contend that the failure of the claim of lien to describe (the lien claimant) as a partnership prejudiced them in any way."

See also City Ironworks, Inc. v. Frank Badstuebner Post No. 2090, 22 Conn.Sup. 230, 167 A.2d 462 (1960). This rule applies a fortiori to the case at bar where the only error in designation occurred in the caption.

II.

Defendants next contend that the trial court erred in denying their motion to compel Fasso to answer one of their written interrogatories. We do not agree. The factual matters sought to be explored by the interrogatory in question were explored at trial. Even if the trial court erred in denying the motion to compel discovery, defendants cannot demonstrate any prejudice thereby. Thus, no reversible error occurred. McCray v. Boulder, 165 Colo. 383, 439 P.2d 350 (1968).

III.

Defendants' third contention of error concerns the trial court's limitation of Mrs. Straten's testimony regarding the quality of Fasso's work. The trial court sustained Fasso's objection to the testimony as being beyond the scope of the pleadings. Defendants did not thereafter make an offer of proof as to what was sought to be proven by the rejected evidence or what benefit would be obtained from its admission. We are unable to determine in what way, if any, defendants were prejudiced. We conclude therefore that the...