Frank Pisano & Associates v. Taggart

• Decision Date: 30 November 1972
• Citation: 29 Cal.App.3d 1,105 Cal.Rptr. 414
• Court: California Court of Appeals Court of Appeals
• Parties: FRANK PISANO & ASSOCIATES and Charles W. Davidson Co., Plaintiffs, Cross-Defendants, Appellants and Respondents, v. Robert C. TAGGART and Vada M. Taggart, Defendants, Cross-Defendants and Respondents, and Abe Hyman, Defendant, Cross-Complainant, Respondent and Appellant, Mabel Hyman, Cross-Complainant and Appellant. Civ. 28266.

Page 414

105 Cal.Rptr. 414

29 Cal.App.3d 1

FRANK PISANO & ASSOCIATES and Charles W. Davidson Co., Plaintiffs, Cross-Defendants, Appellants and Respondents, v. Robert C. TAGGART and Vada M. Taggart, Defendants, Cross-Defendants and Respondents, and Abe Hyman, Defendant, Cross-Complainant, Respondent and Appellant, Mabel Hyman, Cross-Complainant and Appellant.

Civ. 28266.

Court of Appeal, First District, Division 1, California.

Nov. 30, 1972.

Robert S. Sturges, San Jose, for appellants.

Abramson & Church, Salinas, for Abe Hyman and Mabel Hyman.

MOLINARI, Presiding Justice.

This is an appeal by plaintiffs Frank Pisano & Associates and Charles W. Davidson Co. (hereinafter collectively referred to as 'plaintiffs'), seeking reversal of a judgment denying them the right to foreclose a mechanic's lien, and by cross-complainants Abe Hyman and Mabel Hyman from a judgment denying them monetary damages on their cross-complaint.

The Facts

In 1962 Robert Taggart (hereinafter 'Taggart') was the owner of certain real property located in San Benito County. This property was subject to a deed of trust in favor of Abe Hyman and Mabel Hyman securing a loan in the sum of $57,981.97 On June 10, 1963, Taggart conveyed the property to Vada Price. Taggart married Miss Price in either 1963, 1964 or 1965. (For convenience in the narration of the facts, we shall continue to refer to Mrs. Taggart as 'Vada Price'.)

On November 4, 1963, Taggart entered into an agreement with Charles W. Davidson, an engineer, for engineering services incident to the subdivision of part of the subject property into 110 lots at a compensation of $150 per lot. In the performance of this work Davidson associated Frank Pisano, an engineer. According to Taggart, Davidson, in addition to the engineering work, agreed to procure the annexation of the subject property to the City of Hollister; he was to procure the installation of sanitary sewers; he was to attempt to have the City of Hollister install flood control sewers; and he was to secure the required bonds and the financing for the project. Vada Price knew of this agreement and was aware of the work that Davidson was to perform.

Vada Price had entered into an agreement to sell part of the property to Statewide Builders, a construction company owned by F. R. Wenzinger. This parcel was to be divided into 26 lots, referred to as 'unit one,' and Statewide Builders was to construct homes on these lots. Statewide Builders subsequently assigned its rights under the sales agreement to Wentag Construction Company (hereinafter 'Wentag'), a corporation in which Wenzinger was president, Vada Price was vice-president, and Taggart was secretary-treasurer. Wentag was to act as the general contractor in the construction of the homes on 'unit one.' By a deed recorded August 10, 1964, Vada Price conveyed 'unit one' to Wentag.

The subject property became annexed to the City of Hollister through Davidson's efforts. Davidson and Pisano made boundary and topographical surveys on the entire piece of property. A tentative map was prepared for 'unit one' and it was approved by the planning commission in the spring of 1964. Subsequently, a subdivision map was prepared for 'unit one.' It was approved by the city council on August 5, 1964, and was recorded on the same day. The subdivision map received approval by Davidson in his capacity as city engineer. A Federal Housing Administration (hereinafter 'FHA') plot plan was completed by March 10, 1964.

Davidson and Pisano made street and sewer plans for 'unit one.' Davidson testified that they also staked the unit for construction. It appears that this was only for the sewer lines. Davidson testified that they never staked for curb and gutters, or for rough grades, or for finished streets. It is unclear when the crews staked the sewer lines. Davidson stated that he recalled that the contractor was close to calling in the stake crew. He also stated that it must have been after August 1964 because taking cannot be done until after the subdivision map is recorded. Davidson testified that the time sheets would show when the staking was done, but Davidson did not have the time sheets with him at the trial. After August 5, 1964, an employee of Davidson worked on cost estimates. Davidson talked with Taggart regarding financing and referred him to the Sonoma Mortgage Company in Palo Alto.

Davidson testified that the development of 'unit one' did not pose flood control problems. However, the rest of the property could not be subdivided unless either an off-track storm line was run out or some of the property was used to pond the overflow storm waters. Davidson could not remember whether he had spoken with Taggart about this problem prior to the time he was engaged to do the work. Taggart testified that Davidson had told him at the time that he would try to get flood control sewers into the area but that he did not know the significance of this.

As a result of the flood control problems, the FHA gave only a tentative approval to the subdivision. Davidson's referral of the parties to the Sonoma Mortgage Company proved unproductive. Wenzinger finally obtained a tentative commitment from the Monterey Mortgage Company. As part of this commitment this lending institution stipulated that Hymans' deed of trust be subordinated to its loan. Abe Hyman refused to agree to the subordination because of the flood problem.

Wentag then reconveyed 'unit one' to Vada Price following which she conveyed 13 acres of her property to the Hymans by a deed recorded on October 14, 1965. On the following day, October 15, 1965, a deed of reconveyance releasing the Hymans' deed of trust was recorded. Apparently this was a compromise to avoid foreclosure. As part of this compromise the Hymans satisfied and discharged a second deed of trust on the Taggart property. The 13-acre parcel deeded to the Hymans included 'unit one.'

Early in 1964, Davidson had asked Taggart for a copy of a legal description of the property. Taggart sent him a preliminary title report which showed title vesting in Vada Price as of July 10, 1963. It also showed a first deed of trust held by the Hymans and a second deed of trust held by one Fanelli. Davidson testified that Taggart told him that Vada Price only held the property in trust and that it was his property. Taggart testified that he had deeded the property outright to Vada Price, who had loaned him money, upon the understanding that if a venture for which the money was loaned was successful and he was in a position to give Vada Price stock in said venture, she would reconvey the property to him. It should be noted here that after Vada Price conveyed the 13 acres to the Hymans she conveyed the remainder of the subject property to Taggart's son, Thomas. The deed was signed by Taggart pursuant to a power of attorney from Vada Price. Taggart testified he did not know if it was a general or special power of attorney but he understood that it gave him the power to deal with the property. Taggart had also given Davidson the agreement of sale between Vada Price and Statewide Builders. In addition, he had shown Davidson a financial statement, dated December 31, 1963, which showed a secured debt of $250,000 owing from Statewide Builders to Taggart. Davidson testified that he nevertheless understood that Taggart was the owner of the property. He stated that his dealings were solely with Taggart and although Vada Price had been present in his office at several meetings she had not participated in the discussions.

Davidson sent a notice of intention to lien, dated October 25, 1965, to Taggart, Hamilton Development Company (hereinafter 'Hamilton'), the City of Hollister, Blair Westfall Engineers, Abe Hyman and Western Title Company. Although Abe Hyman received a copy of the notice, it was not sent by registered mail and it was not in his name. Mabel Hyman did not receive a copy of the notice.

A mechanic's claim of lien, signed by Davidson, was recorded on November 23, 1965. It recited that 'All work and materials were furnished at the request of the owner or reputed owners of the said real property, ROBERT C. TAGGART and ABE HYMAN.'

Davidson testified that he had never had any discussions with the Hymans. He knew of the conveyance to the Hymans since he received a letter from Taggart dated October 22, 1965 in which he was so advised. He also knew of the deeds of trust on the subject property as disclosed by the preliminary title report Taggart had furnished him. He also stated that at the time he filed his claim of lien he was aware of some arrangement whereby Abe Hyman had acquired title to part of the property but that he did not know the details.

The record is somewhat inadequate with regard to the value of the services performed by Davidson and Pisano. Davidson did not bring any of his time sheets to the trial. He testified that $150 per lot was slightly less than the minimum fee recommended by the Association of Civil Engineers and Land Surveyors of Santa Clara County. He stated that there was less work required in Hollister and thus he charged less than the recommended fee. Davidson stated that they began charging in November of 1963 and that the last charge was made in February of 1966.

Davidson testified that he calculated his services to be worth $7,600 by first looking to the hours which had been put in and secondly by deducting from the agreed total the cost of finishing the job. Davidson introduced some boundary field notes dated January 28, 1964, and some topographical survey field notes dated January 29, 1964. He stated that he had a crew of four out on the topographical survey for two or more days. He stated that at the time the crew cost $41 per hour.

After August 5, 1964, one of Davidson's employees, whose wage rate was $12.50 per hour, spent 40 or 50 hours working on cost estimates. Davidson put in time attending meetings and conferences and attempting to secure...