Gamboa v. Urena, No. 23,104.

• Docket Nº: No. 23,104.
• Citation: 135 N.M. 515, 2004 NMCA 53, 90 P.3d 534
• Case Date: March 04, 2004
• Court: Court of Appeals of New Mexico

90 P.3d 534
135 N.M. 515
2004 NMCA 53

Daniel O. GAMBOA and Paula J. Gamboa, Plaintiffs-Appellees,
v.
Sal URENA d/b/a Urena Custom Cabinets, Defendant-Appellant

No. 23,104.

Court of Appeals of New Mexico.

March 4, 2004.

Certiorari Denied May 11, 2004.

90 P.3d 535

Henry F. Narvaez, Ernestina R. Cruz, Narvaez Law Firm, P.A., Albuquerque, NM, for Appellees

Shane A. English, Keithly & English, P.C., Anthony, NM, for Appellant.

Certiorari Denied, No. 28,554, May 11, 2004.

OPINION

FRY, Judge.

{1} In this case we consider the reach of the Construction Industries Licensing Act (CILA), NMSA 1978, §§ 60-13-1 to -59 (1967, as amended through 2003), which precludes an unlicensed contractor from seeking compensation for construction work that can only be performed by a licensed contractor. Defendant Sal Urena appeals from partial summary judgment voiding his materialman's lien and dismissing his claim for compensation related to the fabrication and installation of cabinets and countertops in the home of Plaintiffs Daniel and Paula Gamboa. Under the circumstances of this case, we hold that permitting Urena to assert his claims and lien would violate the strong public policy articulated in the CILA and the case law interpreting it. We therefore affirm the district court's partial summary judgment.

BACKGROUND

{2} The Gamboas hired Urena, an unlicensed contractor, to make custom cabinets and countertops for their new home. At the same time, according to the Gamboas, Urena also agreed to install the completed cabinets and countertops. Urena and the Gamboas signed a written agreement (the contract) providing: "We, Sal Urena, Daniel O. Gamboa, Paula J. Gamboa and [the general contractor] do agree that cabinets, carvings, and countertops will be produced and installed by Urena's Custom Cabinets." The contract then went on to list each cabinet and countertop with a corresponding price. Following the list, the contract stated, "Includes: Doors, cabinets, installation and hardware[.]"

{3} Despite the written contract, Urena has a different view of the agreement. While he agrees that he signed the contract, he contends that he and the Gamboas initially agreed only that he would produce the cabinets and countertops; there was no mention of installation. He claims he memorialized this agreement in a draft proposal listing the same cabinets, countertops, and prices listed in the contract. However, the proposal is silent on the question of whether the price included installation. Later, according to Urena, the Gamboas asked Urena if he would install the cabinets and countertops and he told them he could not because he was not a licensed contractor. The Gamboas persisted in urging Urena to install the items; there is no dispute that Urena ultimately agreed to and did install the cabinets and countertops. However, he maintains that he did not charge the Gamboas anything for the installation. He claims he charged only for the manufacture of the cabinets and countertops at the prices listed in his original proposal.

{4} The Gamboas contend Urena never completed the work. Although the Gamboas had paid Urena $46,727.21, Urena claims the Gamboas still owed him $18,666.11 for work he completed. Because he believed the Gamboas still owed him money, Urena filed a lien on the Gamboas' house. The Gamboas then sued Urena seeking cancellation of the lien, damages, and other relief. Urena filed a counterclaim for breach of contract and foreclosure of his lien.

{5} The Gamboas filed a motion for partial summary judgment, arguing that the CILA required Urena to be a licensed contractor in order to perform the work he had agreed to do. Consequently, they argued, because Urena was not a licensed contractor, his lien was invalid. Urena responded that the CILA does not require a supplier of materials to be licensed. Because he sought payment only for supplying the cabinets and countertops and did not charge for installation, he claimed it was not necessary for him to be licensed.

{6} The district court granted partial summary judgment to the Gamboas, holding that

90 P.3d 536

Urena contracted without a license in violation of the CILA and thus, that Urena's lien was void ab initio. The district court dismissed Urena's counterclaim with prejudice and, pursuant to Rule 1-054(B)(1) NMRA 2004, found there was no just reason for delay in entering a final order on the issues of the validity of Urena's lien and the viability of Urena's counterclaim. Urena appealed

DISCUSSION

{7} Summary judgment is properly granted when there are no genuine issues of material fact. Cuevas v. State Farm Mut. Auto. Ins. Co., 2001-NMCA-038, ¶ 6, 130 N.M. 539, 28 P.3d 527. We review the application of the law to the undisputed facts de novo. Id.

{8} The district court concluded that Urena had contracted without a license in violation of the CILA, which provides:

A. No contractor shall act as agent or bring or maintain any action in any court of the state for the collection of compensation for the performance of any act for which a license is required by the Construction Industries Licensing Act ... without alleging and proving that such contractor was a duly licensed contractor at the time the alleged cause of action arose.

B. Any contractor operating without a license as required by the Construction Industries Licensing Act shall have no right to file or claim any mechanic's lien as now provided by law.

§ 60-13-30.

A "contractor" is

any person who undertakes, offers to undertake by bid or other means or purports to have the capacity to undertake, by himself or through others, contracting. Contracting includes ... constructing, altering, repairing, installing or demolishing any:

...

(2) building,

...