Govert Copier Painting v. Van Leeuwen

• Decision Date: 08 November 1990
• Docket Number: No. 890538-CA,890538-CA
• Citation: 801 P.2d 163
• Parties: GOVERT COPIER PAINTING, a Utah partnership, Plaintiff, Appellant and Cross-Appellee, v. Craig VAN LEEUWEN, Defendant, Appellee and Cross-Appellant.
• Court: Utah Court of Appeals

Page 163

801 P.2d 163

GOVERT COPIER PAINTING, a Utah partnership, Plaintiff Appellant and Cross-Appellee, v. Craig VAN LEEUWEN, Defendant, Appellee and Cross-Appellant.

No. 890538-CA.

Court of Appeals of Utah.

Nov. 8, 1990.

Cass C. Butler (argued), Watkiss & Campbell, Salt Lake City, for plaintiff, appellant and cross-appellee.

Kendall S. Peterson (argued), Tibbals, Howell, Wilkins & Oritt, Salt Lake City, for defendant, appellee and cross-appellant.

Before BENCH, BILLINGS and ORME, JJ.

OPINION

BILLINGS, Judge:

Appellant Govert Copier Painting ("Copier Painting") appeals from a summary judgment dismissing its suit to recover for painting the interior of appellee Craig Van Leeuwen's ("Van Leeuwen") home.

In the summer of 1985, Van Leeuwen and Fred Copier discussed the interior painting of a home Van Leeuwen was constructing for himself. After several conversations, Van Leeuwen entered into an oral agreement with Fred Copier to paint the home. Fred Copier purchased the materials and began painting on December 3, 1985.

Fred Copier ceased painting on February 14, 1986, before the interior painting was finished, because the house was not yet completed. Fred Copier and Van Leeuwen agreed that Fred Copier would leave materials so Van Leeuwen could complete the painting himself. Fred Copier delivered a bill to Van Leeuwen on February 14, 1986, and a dispute arose concerning the amount owed. It is unclear exactly when the painting of the home was completed. Fred Copier contends he saw subcontractors working at the home after July 1, 1986, and infers from that fact that the painting must have been completed after July 1, 1986.

On February 25, 1986, Fred Copier filed a notice of mechanics' lien under the name of Govert Copier Painting ("Copier Painting"), listing himself as "Managing partner for Govert Copier Painting." In the notice of lien, Fred Copier listed the date the last labor was performed and materials furnished as February 14, 1986.

Copier Painting purports to be a Utah partnership consisting of two partners, Govert Copier and his son, Fred Copier. The partnership is not registered to do business in the State of Utah, nor is the partnership licensed by the State of Utah as a painting contractor. Govert Copier has been a licensed painting contractor in Utah continuously since 1958. Fred Copier is not and has never been a licensed painting contractor.

On June 23, 1987, Copier Painting commenced this action, requesting (1) foreclosure of its mechanics' lien, (2) compensation on the oral contract, and (3) in the alternative, compensation under the theory of unjust enrichment. The trial court granted summary judgment on the mechanics' lien claim finding it untimely. The court later dismissed the remaining claims, finding that an unlicensed contractor is barred from suing for compensation by Utah Code Ann. § 58A-1a-13 (1986).

Copier Painting appeals, claiming the trial court erred in (1) its calculation of the one-year statute of limitations period under the Utah Mechanics' Lien Act; (2) barring the company's contract claim because Govert Copier was a duly licensed painting contractor; and (3) dismissing the unjust enrichment claim. Van Leeuwen also appeals the amount of attorney fees awarded by the trial court and requests attorney fees incurred on appeal. We affirm in part and reverse and remand in part.

Summary judgment is appropriate only when "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Utah R.Civ.P. 56(c). "When reviewing an appeal from summary judgment, we construe the facts and view the evidence in the light most favorable to the losing party." Parents Against Drunk Drivers v. Graystone Pines Homeowners' Assoc., 789 P.2d 52, 54 (Utah Ct.App.1990); see also Washington Nat'l Ins. Co. v. Sherwood Assocs., 795 P.2d 665, 666 (Utah Ct.App.1990). Thus, if the parties dispute a genuine issue of material fact, we must reverse a summary judgment and remand for a determination of that issue. Parents Against Drunk Drivers, 789 P.2d at 54; see also Atlas Corp. v. Clovis Nat'l Bank, 737 P.2d 225, 229 (Utah 1987). We may also reappraise a trial court's legal conclusions as summary judgment is a matter of law, not fact. Parents Against Drunk Drivers, 789 P.2d at 54; see also Atlas Corp., 737 P.2d at 229.

STATUTORY BAR TO RECOVERY BY UNLICENSED CONTRACTOR

Copier Painting claims Fred Copier and his father, Govert Copier, have a painting partnership and because Govert Copier is a licensed painting contractor, Fred can perform work under his father's license. Copier Painting thus claims the district court erred in finding Utah Code Ann. § 58A-1a-13 (1986) was a bar to its suit to recover on its painting contract. ¹ Van Leeuwen concedes only for purposes of Copier Painting's appeal of Van Leeuwen's successful summary judgment motion that Copier Painting is a partnership and was the contractor which performed the painting contract at issue. He does so because he claims this court can affirm the summary judgment, even conceding these disputed issues of fact, because the contractor, Copier Painting partnership, was unlicensed, the only person licensed being Govert Copier individually.

The dissent accepts the facts that a partnership exists with Fred and Govert Copier as partners and that this partnership was the painting contractor which performed the work on Van Leeuwen's home. Based on these facts the dissent would hold, as a matter of law, that the statutory bar preventing unlicensed contractors from recovering, § 58A-1a-13 (1986), does not apply. The dissent finds that since Fred Copier performed the work and claims to be a partner with his father, a licensed contractor, Fred is a licensed contractor not subject to the statutory bar. The dissent decides an issue that is simply not properly before us on this appeal from the court's grant of summary judgment.

Van Leeuwen did not concede before the trial court that Copier Painting is in fact a partnership with Fred Copier as one of its partners. Rather, Van Leeuwen hotly contested these facts. On appeal, he cites facts from the record before the trial court to support the contrary conclusion: that Copier Painting was not registered to do business as a partnership; that he was never told of any partnership, but rather assumed he was dealing solely with Fred Copier; that he in fact understood Govert Copier had retired and was no longer involved with painting; that Fred Copier never held himself out as a member of a partnership or any other business entity. We disagree with the dissent that parties may not concede certain disputed factual issues merely to expedite the resolution of a legal issue and then re-assert these factual issues if the legal ruling on a motion for summary judgment is not in their favor.

Van Leeuwen's position before the trial court was that the painting contract was entered into and performed by Fred Copier and the attempt to use Govert Copier's individual license was an afterthought to avoid the statutory bar. The trial judge in his oral ruling granting Van Leeuwen's motion for summary judgment states "the court is of the opinion that the motion for summary judgment should be granted at this time. I think the records-affidavit support the defendant's proposition in regards to the fact that Fred Copier is not a partnership." The court continues "Fred Copier himself contracted with Van Leeuwen and he is not a licensed contractor and so he cannot sue under the statute."

We believe the dissent's contention that the trial court's denial of Van Leeuwen's earlier motion to dismiss on the grounds that Fred Copier, not Copier Painting, was the real party in interest establishes as the law of the case the fact that Copier Painting, not Fred Copier, was the contractor is incorrect. The denial of a motion to dismiss with no findings or statement of grounds establishes no law of the case such that all facts which may have been relevant to the decision are afterwards undisputed. The dissent's conclusion that the denial of this motion to dismiss eliminates all the disputed issues of fact concerning who the contractor actually was is simply an inappropriate reaching out to support a desired result on appeal and to inappropriately restrict a trial court's actions on remand.

In conclusion, we believe the dissent misconstrues the record before us and thus erroneously concludes that the undisputed facts demonstrate that Copier Painting, a Utah partnership, was the contractor and "was 'properly licensed' and is therefore not barred by section 58A-1a-13."

To resolve this dispute, we analyze the regulatory scheme which bars unlicensed contractors from recovering.

Utah Code Ann. § 58A-1a-13 (1986) provides:

No contractor may act as agent or commence or maintain any action in any court of the state for collection of compensation for the performance of any act for which a license is required by this chapter without alleging and proving that he was a properly licensed contractor when the contract sued upon was entered into and when the alleged cause of action arose. ²

Under this statute, Copier Painting has the burden to prove it is a properly licensed contractor before it can sue for compensation. Utah Code Ann. § 58A-1a-13 (1986).

Copier Painting argues that the partnership complied with section 58A-1a-13 because its partner, Govert Copier, was licensed and he supervised the work of his partner and son, Fred Copier. Copier Painting claims that forfeiture of a valid claim for failure to obtain a contractor's license should not be mechanically applied. It cites several Utah Supreme Court cases which have refused to apply the common law rule of non-recovery developed under the previous statute, Utah Code Ann. § 58-23-1 (1967). ³ See Loader v. Scott Constr. Co., 681 P.2d 1227, 1230 (Utah 1984) (non-recovery rule not imposed because the defendant was a licensed contractor so was not...