Kirby Bldg. Systems, Inc. v. Independence Partnership No. One
| Decision Date | 05 October 1981 |
| Docket Number | No. 5500,5500 |
| Citation | 634 P.2d 342 |
| Parties | KIRBY BUILDING SYSTEMS, INC., a Texas Corporation, Appellant (Plaintiff), v. INDEPENDENCE PARTNERSHIP NO. ONE, a Wyoming partnership, Zions First National Bank, and Clydeco Building Supplies, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Daniel G. Blythe, Cheyenne, and C. Reed Brown (argued), Armstrong, Rawlings, West & Brown, Salt Lake City, Utah, and Bruce R. Barnard, Evanston, for appellant.
Dennis W. Lancaster, Phillips & Lancaster, P. C., Evanston, for appellees.
Before ROSE, C. J., RAPER, THOMAS and ROONEY, JJ., and SAWYER, D. J.
This appeal is from an order dismissing an action to foreclose a mechanic's lien. The issue before us concerns whether the district court correctly found as a matter of law that the notice requirement in § 29-2-110, W.S.1977, was not satisfied. That statute provided:
"Every person, except the original contractor, who may wish to avail himself of the benefits of the provisions of this act (§§ 29-2-101 to 29-2-124), shall give ten (10) days notice, in writing, before filing the lien, as herein required, to the owner, owners or agent, or either of them, that he or they hold a claim against such building or improvement, stating in said notice the amount of the same and from whom it is due." 1
We will reverse.
On October 30, 1980, appellant Kirby Building Systems, Inc. filed a complaint against appellee Independence Partnership No. One. The following were the relevant facts alleged in the complaint:
"2. Defendant, Independence Partnership No. One, is a Wyoming partnership with its principal place of business in Evanston, Uinta County, Wyoming.
3. Defendant, Independence Partnership No. One at the times relevant to this complaint are the owners of the real property described in paragraph 5 of this complaint.
Exhibit "A" which was attached to the complaint provided:
On November 13, 1980, appellee moved pursuant to Rule 12(b), W.R.C.P., for a dismissal of the complaint. In response thereto, appellant filed the affidavit of Norm Johnson its assistant credit manager. Accompanying this affidavit was a letter sent by Howard Hutson to Bell Construction Company. In this letter Mr. Hutson, acting on behalf of the Evanston Companies a partner in appellee, revoked the contract between appellee and Bell Construction. This letter was as follows:
On March 23, 1981, the district court granted the motion to dismiss. The court stated:
"That the Defendant's, Independence Partnership No. One, Motion to Dismiss should be granted since the Plaintiff's action purports to be a foreclosure upon a Mechanic's Lien; however, said Lien is invalid, since the Plaintiff has failed to comply with the requirements of W.S. Section 29-2-110, which required that the Plaintiff shall give ten (10) days notice, in writing, before filing the Lien; and since the Plaintiff has failed to comply with said requirement, said Lien is invalid and the Complaint to enforce the Lien should be dismissed."
When a motion to dismiss for failure to state a claim upon which relief can be granted is made, if matters outside the pleading are presented to and considered by the court, the motion should be treated as one for summary judgment. Rule 12(b), W.R.C.P. Summary judgments are appropriate only in cases in which there exists no question of material fact requiring resolution at trial. Madison v. Marlatt, Wyo., 619 P.2d 708 (1980). The burden is on the movant to demonstrate that this is the case. Shrum v. Zeltwanger, Wyo., 559 P.2d 1384 (1977). On appeal from a summary judgment, we look at the record from the point of view most favorable to the party opposing the motion, giving to him all the favorable inferences to be drawn from the record. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). In doing so in this case, we find no support in the record for the assertions of appellee. 2
First, in its brief, appellee argued that the notice was defective because it was "not addressed to Independence Partnership." However, the statute does not speak to whom the notice must be addressed. It merely states that before filing a lien, "every person, except the original contractor, * * * shall give ten (10) days notice, in writing * * * to the owner, owners or agent * * *." Section 29-2-110, W.S.1977. The letter was addressed to Howard Hutson. In another letter which was made part of the record, Mr....
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