Federal Lumber Co. v. Wheeler, 80SA202

• Citation: 643 P.2d 31
• Decision Date: 05 October 1981
• Docket Number: No. 80SA202,80SA202
• Parties: FEDERAL LUMBER COMPANY, Plaintiff-Appellee, v. Edmon C. WHEELER and Melody H. Wheeler, Defendants-Appellants.
• Court: Supreme Court of Colorado

Page 31

643 P.2d 31

FEDERAL LUMBER COMPANY, Plaintiff-Appellee, v. Edmon C. WHEELER and Melody H. Wheeler, Defendants-Appellants.

No. 80SA202.

Supreme Court of Colorado, En Banc.

Oct. 5, 1981.

Stark & Ker, Steven W. Stark, Durango, for plaintiff-appellee.

Nunn & Dunlap, Leslie E. Nunn, Farmington, N. M., for defendants-appellants.

ROVIRA, Justice.

This is an appeal by Edmon and Melody Wheeler (Wheelers) from a judgment of the district court foreclosing a mechanic's lien in favor of Federal Lumber Company (Federal Lumber). The case was transferred to this court from the Colorado Court of Appeals because of the constitutional issue raised by the appellants. ¹ We affirm.

The Wheelers entered into an agreement with Steve Alton to construct a residence. Alton, who was in the construction business, had an open account with Federal Lumber and purchased some of the materials for the Wheeler residence from Federal Lumber.

A dispute arose between the Wheelers and Alton over the quality of the work performed and the price. When the dispute could not be resolved, Alton ceased work on the house. At a meeting between Alton and the Wheelers on August 17, 1977, Alton accepted a final payment for work performed, signed a lien waiver, and advised the Wheelers that he still had a balance due at Federal Lumber.

Subsequently, Federal Lumber gave the Wheelers notice of its intent to file a lien and filed a lien with the clerk and recorder. Federal Lumber then filed a complaint against the Wheelers, Alton, and Mesa Verde Savings and Loan Association in which it sought a personal judgment against the Wheelers and Alton for $10,631, foreclosure of its lien, and a determination that its lien had priority over the deed of trust held by Mesa Verde Savings and Loan.

Alton admitted the allegations of the complaint but claimed that he was unable to make payment because the Wheelers had not paid him. He filed a cross claim against the Wheelers alleging in the alternative that he was owed money upon either a fixed sum contract, an implied agreement to pay a reasonable amount, or quantum meruit.

The Wheelers denied all claims of Federal Lumber and, by way of affirmative defense, urged that Federal Lumber was estopped from any recovery. They also cross claimed against Alton alleging breach of contract for the construction of their home, breach of express and implied warranties, and fraud. By way of relief, they requested that if they were held liable to Federal Lumber then Alton be held liable to them for the same amount, general and exemplary damages, attorneys fees, and costs. In a pretrial order prepared by all counsel, the Wheelers notified the court of their contention that the mechanic's lien law was unconstitutional.

The Wheelers filed a demand for a jury trial, and in the pretrial order they agreed that the jury would decide the amount of money, if any, owed to Federal Lumber by Alton and the Wheelers and the court would decide, as a matter of law, the timeliness of the notice of lien and the priority of the lien. The trial court on its own motion, however, ordered that a jury be dispensed with and removed the case from the jury trial calendar.

After a bench trial, the court found that the materials sold by Federal Lumber were charged to Alton's account, were delivered and incorporated into the Wheelers' house, and that Federal Lumber had a valid lien for $8,944. The court entered judgment against Alton and the Wheelers, authorized foreclosure pursuant to the mechanics' lien laws, and determined that the lien had priority over the deed of trust held by Mesa Verde Savings and Loan. ²

As to the agreement between Alton and the Wheelers, the court found that there was no specific contract for the construction of a house between the parties and that any sum due Alton for work performed would be based on quantum meruit. The court concluded that the payment made to Alton on August 17, 1977, amounted to an accord and satisfaction between the parties and was a complete release by the parties of all claims one against the other.

The trial court also concluded that the Wheelers should have judgment against Alton for any payments they might make on Federal Lumber's judgment; that there was no evidence to support the estoppel argument raised by the Wheelers against Federal Lumber; and that the mechanic's lien law is constitutional.

The Wheelers have raised twenty separate issues on appeal. For the purposes of this opinion they will be considered in five classifications: (1) whether the trial court erred in dispensing with a jury; (2) the constitutionality of the mechanic's lien law; (3) evidentiary rulings of the trial court; (4) whether the trial court erred in finding that Federal Lumber was not estopped from claiming a mechanic's lien against the Wheelers; (5) whether the trial court erred in finding that the final transaction between the Wheelers and Alton amounted to an accord and satisfaction and a complete release of all claims by both parties. We conclude that there was no error below and affirm the decision of the trial court.

I.

The Wheelers contend that the trial court erred when, on its own motion, it struck the case from the jury trial calendar and ordered that it be tried to the court without a jury.

The Wheelers made a demand for jury trial pursuant to C.R.C.P. 38, claiming they were entitled to a jury trial on all issues raised in the pleadings. The proposed pretrial order approved by all counsel provided that a jury would decide the issue of the amount of money owed as between the parties and the court would "decide as a matter of law the timeliness of the notice of lien, the lien and the lis pendens and the priority of the liens."

The trial court determined that the complaint fixed the nature of the suit and character of the action; and since a mechanic's lien case is equitable in nature, a right to a jury trial did not exist. See C.R.C.P. 39(a). We agree.

The statutory proceedings to enforce rights under the mechanics' lien law are equitable in nature. Kern v. Guiry Bros. Wall Paper Co., 60 Colo. 286, 153 P. 87 (1915); Williams v. Uncompahgre Canal Co., 13 Colo. 469, 22 P. 806 (1889). When the action is an equitable proceeding, the issues joined are to be tried by the court. Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964).

The Wheelers argue that trial by a jury is mandated in an equitable action when no party objects and that, by denying them a jury trial, the court denied them an inalienable right guaranteed by the constitution. The latter argument was resolved in Setchell v. Dellacroce, 169 Colo. 212, 454 P.2d 804 (1969), where we held that there is no constitutional right to a trial by jury in civil actions. The right to a jury trial in a civil case is derived from C.R.C.P. 38.

In answering the Wheelers' claim that if the parties agreed to a jury trial the trial court was without authority to rule otherwise, we have but to look to C.R.C.P. 39(a), which provides that a jury trial shall be had if demanded unless "the court upon motion or of its own initiative finds that a right of trial by jury of some or all of these issues does not exist ...." Thus, the trial court is not bound by the agreement of the parties if no right to a jury trial exists.

II.

The Wheelers argue that the mechanics' lien laws, article 22 of title 38, C.R.S.1973, are unconstitutional as applied to them and that, therefore, the trial court erred in denying their motion to dismiss the complaint.

The record reflects that, prior to calling their first witness, the Wheelers presented the argument that the mechanics' lien laws were unconstitutional. The argument was not included in the transcript; thus, we are unable to evaluate it. The trial court denied the motion, holding that there were sufficient safeguards in the law regarding notice and that the statute of limitations provided protection to the owner of property.

In their brief filed in this court, the Wheelers have failed to provide us with any reasoned argument to support their claim. They state a few well known maxims (due process is guaranteed by the Fourteenth Amendment; the right to due process is absolute; due process requires prior notice) and then conclude that, since only the general contractor knows who supplied labor and materials, the requirement of the mechanic's lien law which requires the owner of property to get a release from those persons who supplied labor and materials places the owner in a position of impossibility.

It is well settled that a party cannot challenge the constitutionality of a statute as applied unless he can demonstrate that the statute adversely affects his own rights. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Heninger v. Charnes, Colo., 613 P.2d 884 (1980); Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975); Pueblo v. Pullaro, 130 Colo. 354, 275 P.2d 938 (1954). When, as in the case at hand, a party claims that a statute is unconstitutional for lack of notice, it must be shown that the party suffered injury due to the lack of notice. American Power & Light Co. v. SEC, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946).

An examination of the record reveals that the Wheelers knew that Alton was purchasing construction materials from Federal Lumber and that he still owed money to Federal Lumber when they made the final payment to him. Thus, they present an argument not based on the facts when they claim that the mechanic's lien law places them in a position of impossibility because only the contractor knows who supplied the labor and materials.

Based upon their failure to demonstrate that the statute was unconstitutional as applied to them, the paucity of information contained in the record, and the inadequacy of their brief, ³ we decline to consider the constitutional issue raised by them.

III.

The Wheelers next challenge several evidentiary rulings of the trial court. They...