Johnson-Voiland-Archuleta, Inc. v. Roark & Associates, JOHNSON-VOILAND-ARCHULET

• Decision Date: 06 December 1979
• Docket Number: INC,JOHNSON-VOILAND-ARCHULET,No. 78-061,78-061
• Parties: , a Colorado Corporation, Plaintiff-Appellant, Cross-Appellee, v. ROARK & ASSOCIATES, a partnership, Defendant-Cross-Appellant, and Pacific Mutual Life Insurance Company, Defendant-Appellee, and Steele Park Associates, a partnership consisting of Louise Vigoda and Samuel Gray; Mary G. McCormick, and Virginia K. Schneider; Ralph S. Craner, Inc., a Colorado Corporation, Trustee; Kate Ferretti, Inc., and Great Western Building Specialties, Inc., Defendants. . III
• Court: Colorado Court of Appeals

Page 818

608 P.2d 818

43 Colo.App. 370

JOHNSON-VOILAND-ARCHULETA, INC., a Colorado Corporation, Plaintiff-Appellant, Cross-Appellee, v. ROARK & ASSOCIATES, a partnership, Defendant-Cross-Appellant, and Pacific Mutual Life Insurance Company, Defendant-Appellee,

and

Steele Park Associates, a partnership consisting of Louise

Vigoda and Samuel Gray; Mary G. McCormick, and Virginia K.

Schneider; Ralph S. Craner, Inc., a Colorado Corporation,

Trustee; Kate Ferretti, Inc., and Great Western Building

Specialties, Inc., Defendants.

No. 78-061.

Colorado Court of Appeals, Div. III.

Dec. 6, 1979.

Rehearings Denied Jan. 10, 1980.

Certiorari Denied April 7, 1980.

Hutchinson, Black, Hill, Buchanan & Cook, Robert G. Mistler, Boulder, for plaintiff-appellant, cross-appellee.

Weltzer & Worstell, Louis A. Weltzer, Denver, for defendant-cross-appellant.

Towey & Zak, James G. Benjamin, Denver, for defendant-appellee.

KELLY, Judge.

Johnson-Voiland-Archuleta, Inc., instituted this action against Roark & Associates, and others, seeking the collection of engineering fees. The plaintiff asserted a mechanic's lien against real property owned by Steele Park Associates, upon which improvements resulting from the plaintiff's services were erected. In addition, Johnson-Voiland-Archuleta asserted liability against Pacific Mutual Life Insurance Company in its capacity as disburser of the construction loan on the project.

The trial court entered judgment in favor of the plaintiff against Roark & Associates in the amount of $33,050.50 together with accrued interest and costs. The court further determined that Johnson-Voiland-Archuleta had a valid and enforceable mechanic's lien on the property, but dismissed the claim against Pacific Mutual Life Insurance Company.

Johnson-Voiland-Archuleta appeals the dismissal against Pacific Mutual, and Roark & Associates cross-appeals the judgment entered against it. We reverse in part and affirm in part, and remand with directions.

I.

In dismissing the action against Pacific Mutual Life Insurance Company, the trial court found that Johnson-Voiland-Archuleta failed to establish that Pacific Mutual received the notice required by § 38-22-126, C.R.S.1973. Under § 38-22-126(5), C.R.S.1973, notice to the disburser in a mechanic's lien action "shall be served upon the disburser by certified mail." The statute further provides that upon receipt of such notice, the disburser must pay a claimant the amount due under a mechanic's lien out of any undisbursed funds, or, if the amount is disputed, impound the funds pending agreement or final judicial determination. If the disburser fails to comply with this statute, it is liable to the claimant for the amount which it should have paid to the extent of the claimant's loss.

The trial court found that the required notice was mailed to Pacific Mutual by certified mail on January 25, 1975. It further found that a United States Post Office return receipt, which was admitted in evidence, and was purportedly signed by an agent for Pacific Mutual, constituted an acknowledgment of receipt of the notice. Johnson-Voiland-Archuleta argues that these findings of the trial court require the application of a presumption that Pacific Mutual received the notice.

Pacific Mutual, however, relying on Olsen v. Davidson, 142 Colo. 205, 350 P.2d 338 (1960), argues that the presumption of receipt does not arise because Johnson-Voiland-Archuleta has failed to show that the notice contained the proper postage and the proper address. Pacific Mutual's reliance on Olsen for this proposition is misplaced. The notice in Olsen was sent by regular mail. Where, as here, notice is sent by certified mail, as expressly authorized by statute, § 38-22-126(5), C.R.S.1973, a showing of certification substitutes for a showing of proper postage. See Ford v. Genereux, 104 Colo. 17, 87 P.2d 749 (1939); cf. Tobias v. State, 41 Colo.App. 444, 586 P.2d 669 (1978).

Similarly, a return receipt showing delivery to the named addressee, which has been properly postmarked by the postal service in the regular manner, supplants a showing of a proper address on the mailed document. Accordingly, here, the return receipt for certified mail raises the presumption of receipt by the addressee, and, since Pacific Mutual offered no evidence to rebut this presumption, its mere denial of receipt in its pleading is insufficient. See Olsen v. Davidson, supra.

Pacific Mutual argues that the receipt for certified mail and the return receipt were inadmissible because the plaintiff failed to establish the relationship between the receipt and the letter it purported to accompany. If the return receipt were inadmissible, there would be no competent evidence to...