Kirby Bldg. Systems, Inc. v. Independence Partnership No. One, No. 5500

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore ROSE; RAPER
Citation634 P.2d 342
Decision Date05 October 1981
Docket NumberNo. 5500
PartiesKIRBY 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).

Page 342

634 P.2d 342
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).
No. 5500.
Supreme Court of Wyoming.
Oct. 5, 1981.

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.

RAPER, Justice.

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

Page 343

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.

"5. Plaintiff's cause of action is to foreclose a mechanic's lien on that certain real property located in Uinta County, State of Wyoming more particularly described as follows:

"Lot 2 in Block 2 of the Evanston Industrial Center Addition to the City of Evanston, Uinta County, Wyoming, as said lot and block are laid out and described on the official map of said Addition now on file and of record in the office of the County Clerk and Ex-Officio Register of Deeds in and for said Uinta County, Wyoming.

"6. On or before the 27th day of February, 1980, the owners or agents of the owners of the real property described in paragraph 5 did enter into an express agreement with the Bell Construction Company, Inc. of Salt Lake City, Utah, for the construction of a structure upon the described real property.

"7. That said construction company, Bell Construction Company, Inc., entered into an express agreement with plaintiff to have plaintiff supply a pre-fabricated metal building and component parts and accessories thereof to be used in construction on and improvement of the premises described in paragraph 5 of this complaint.

"8. That pursuant to the terms of the agreement with Bell Construction Company, Inc., plaintiff furnished materials to the above described real property for use in construction and improvement and said materials were used and incorporated into the above described real property, to the benefit of defendants herein.

"11. That by letter dated April 17, 1980 from plaintiff to Howard Hudson (Hutson) of the Evanston Companies, a partner of defendant, Independent (Independence) Partnership No. 1, defendant was informed that Bell Construction Company, Inc. had not paid plaintiff the full amount of the material furnished. A copy of said letter is attached as Exhibit 'A' and made a part hereof; that on or about April 18, 1980, defendant, Independent (sic) Partnership No. 1 was notified by letter from Bell Construction Company, Inc., a copy of said letter marked Exhibit 'B' is attached hereto and by reference made a part hereof, that payment for the materials supplied by plaintiff and to be used on the above described real estate was to be made directly to plaintiff.

* * * "

Exhibit "A" which was attached to the complaint provided:

"April 17, 1980

"Mr. Howard Hutson

"Evanston Companies

"730 17th Street Suite 840

"Denver, Colorado 80202

"Dear Mr. Hutson:

"In response to your telephone request this afternoon, please be advised that we have not received payment from Bell

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Construction Company for the metal building we supplied to your company.

"The amount owed to Kirby Building Systems is $55,151.00.

"If we can be of further assistance please do not hesitate to call.

"Very truly yours,

"/s/ N B Johnson

"Norman B. Johnson

"Assistant Credit Manager

"cc: R. Fletcher

"Bell Construction Co., Inc.

"1260 E. Vine Street

"Salt Lake City, Utah 84121"

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:

"April 22, 1980

"CERTIFIED MAIL

"Bell Construction Company

"1260 Vine Street

"P. O. Box 21589

"Salt Lake City, Utah 84121

"Attention: Mr. David Johnson, Controller

"Gentlemen:

"Please be advised that the contract between Independence Partnership No. 1 and your Company dated October 26, 1979, and as amended on December 7, 1979, is hereby...

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15 practice notes
  • Walsh v. Walsh, No. 90-192
    • United States
    • United States State Supreme Court of Wyoming
    • November 20, 1992
    ...there exists no question of material fact requiring resolution at trial." Kirby Bldg. Sys., Inc. v. Independence Partnership No. One, 634 P.2d 342, 345 (Wyo.1981). See also Zmijewski v. Wright, 809 P.2d 280, 282 (Wyo.1991). "The issues presented should be resolved at trial where the dispute......
  • KM Upstream, LLC v. Elkhorn Contr., Inc., Nos. S–11–0185
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2012
    ...it contained inadvertent inaccuracies or omissions that were not prejudicial. See, e.g., Kirby Bldg. Sys. v. Independence P'ship No. One, 634 P.2d 342, 346 (Wyo.1981); Engle, 590 P.2d at 830–32;United Pacific, 455 P.2d at 673–76;Phelan v. Cheyenne Brick Co., 26 Wyo. 493, 188 P. 354, 358 (19......
  • KM Upstream, LLC v. Elkhorn Constr., Inc., S-11-0185, 11-0207
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2012
    ...it contained inadvertent inaccuracies or omissions that were not prejudicial. See, e.g., Kirby Bldg. Sys. v. Independence P'ship No. One, 634 P.2d 342, 346 (Wyo. 1981); Engle, 590 P.2d at 830-32; United Pacific, 455 P.2d at 673-76; Phelan v. Cheyenne Brick Co., 26 Wyo. 493, 188 P. 354, 358 ......
  • Estate of Reed, Matter of, No. 88-137
    • United States
    • United States State Supreme Court of Wyoming
    • January 31, 1989
    ...memoranda. See W.R.C.P. 12(b); Torrey v. Twiford, 713 P.2d 1160 (Wyo.1986); Kirby Bldg. Systems, Inc. v. Independence Partnership No. One, 634 P.2d 342 (Wyo.1981); and Wyoming Ins. Dept. v. Sierra Life Ins. Co., 599 P.2d 1360 (Wyo.1979). An extended recitation of summary judgment analysis w......
  • Request a trial to view additional results
15 cases
  • Walsh v. Walsh, No. 90-192
    • United States
    • United States State Supreme Court of Wyoming
    • November 20, 1992
    ...there exists no question of material fact requiring resolution at trial." Kirby Bldg. Sys., Inc. v. Independence Partnership No. One, 634 P.2d 342, 345 (Wyo.1981). See also Zmijewski v. Wright, 809 P.2d 280, 282 (Wyo.1991). "The issues presented should be resolved at trial where the dispute......
  • KM Upstream, LLC v. Elkhorn Contr., Inc., Nos. S–11–0185
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2012
    ...it contained inadvertent inaccuracies or omissions that were not prejudicial. See, e.g., Kirby Bldg. Sys. v. Independence P'ship No. One, 634 P.2d 342, 346 (Wyo.1981); Engle, 590 P.2d at 830–32;United Pacific, 455 P.2d at 673–76;Phelan v. Cheyenne Brick Co., 26 Wyo. 493, 188 P. 354, 358 (19......
  • KM Upstream, LLC v. Elkhorn Constr., Inc., S-11-0185, 11-0207
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 2012
    ...it contained inadvertent inaccuracies or omissions that were not prejudicial. See, e.g., Kirby Bldg. Sys. v. Independence P'ship No. One, 634 P.2d 342, 346 (Wyo. 1981); Engle, 590 P.2d at 830-32; United Pacific, 455 P.2d at 673-76; Phelan v. Cheyenne Brick Co., 26 Wyo. 493, 188 P. 354, 358 ......
  • Estate of Reed, Matter of, No. 88-137
    • United States
    • United States State Supreme Court of Wyoming
    • January 31, 1989
    ...memoranda. See W.R.C.P. 12(b); Torrey v. Twiford, 713 P.2d 1160 (Wyo.1986); Kirby Bldg. Systems, Inc. v. Independence Partnership No. One, 634 P.2d 342 (Wyo.1981); and Wyoming Ins. Dept. v. Sierra Life Ins. Co., 599 P.2d 1360 (Wyo.1979). An extended recitation of summary judgment analysis w......
  • Request a trial to view additional results

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