Kuchenski v. Kramer Sheet Metal, Inc.

• Decision Date: 21 November 1985
• Docket Number: No. 10932,10932
• Citation: 377 N.W.2d 133
• Parties: Mike KUCHENSKI, d.b.a. Mike's Excavating Service, Plaintiff and Appellant, v. KRAMER SHEET METAL, INC., a corporation, and Great American Insurance Companies, a corporation, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 133

377 N.W.2d 133

Mike KUCHENSKI, d.b.a. Mike's Excavating Service, Plaintiff and Appellant, v. KRAMER SHEET METAL, INC., a corporation, and Great American Insurance Companies, a corporation, Defendants and Appellees.

Civ. No. 10932.

Supreme Court of North Dakota.

Nov. 21, 1985.

Freed, Dynes, Reichert & Buresh, Dickinson, for plaintiff and appellant; argued by George T. Dynes.

Howe, Hardy, Galloway & Maus, Dickinson, for defendants and appellees; argued by Michael J. Maus.

LEVINE, Justice.

Mike Kuchenski appeals from a judgment dismissing his action on a performance bond for failing to timely file notice pursuant to North Dakota Century Code Sec. 48-02-15. We affirm.

In 1982 Kramer Sheet Metal, Inc., contracted with Dickinson Public School District No. 1 to provide mechanical work for the construction of a school. Kramer subcontracted the plumbing and excavation work to Dickinson Plumbing and Heating, Inc. (Dickinson Plumbing), which in turn subcontracted the excavating to Kuchenski.

Dickinson Plumbing was paid by Kramer for the excavation work but it did not in turn pay Kuchenski. Consequently, in the spring of 1983 Kuchenski served Kramer with a notice of mechanic's lien asserting that he had completed the excavation work on December 2, 1982.

Although not yet paid for the excavation work, Kuchenski returned to the job site in the summer of 1983 to replace a temporary water main, compact and level the gravel covering the water main and raise the level of the sewer cleanouts. In October 1983 Kuchenski notified Kramer of his intention to seek payment from Kramer's performance bond pursuant to NDCC Sec. 48-02-15. ¹ Unable to recover from Kramer's bond, Kuchenski instituted this action.

Section 48-02-15 provides that any person who has not been paid in full after furnishing labor or materials for work for a school district, and who has a direct contractual relationship with a subcontractor but not with the general contractor furnishing a bond under NDCC ch. 48-02, has a right of action on the bond only upon giving written notice to the general contractor within 90 days from the date the person completed his contribution.

The trial court concluded that Kuchenski's contribution was completed on December 2, 1982 and therefore his October 1983 notice was not timely. Kuchenski claims that his contribution was completed in the summer of 1983 and consequently his notice was timely.

The dispositive question is when did Kuchenski complete his contribution to the school construction. If Kuchenski's work in the summer of 1983 completed his contribution his notice was timely. However, if December 2, 1982 was the date he completed his contribution his notice was late and his action is barred.

The trial court concluded as a matter of law that Kuchenski's contribution was completed on December 2, 1982. Whether or not a particular determination is a finding of fact or conclusion of law will be determined by the reviewing court. Martinson Bros. v. Hjellum, 359 N.W.2d 865 (N.D.1985). The determination of the date of completion for the purpose of filing a mechanic's lien, a situation sufficiently analagous to this case to provide guidance and authority, is a question of fact. B.D. McGillicuddy Const. Co., Inc. v. Knoll Recreation Ass'n, Inc. 31 Cal.App.3d 891 107 Cal.Rptr. 899 (1973); American Factors Associates, Ltd. v. Triangle Heating & Sheet Metal Co., 31 Colo.App. 240, 503 P.2d 163 (1972); Wolford v. Sapp, 448 So.2d 1113 (1984); J. Propes Elec. Co. v. DeWitt-Newton, Inc., 97 Mich.App. 295, 293 N.W.2d 801 (1980). Consequently, we will treat the trial court's determination that December 2, 1982 was the date Kuchenski completed his contribution as a finding of fact subject to North Dakota Rule of Civil Procedure 52(a).

To determine whether or not this finding was clearly erroneous we turn for guidance to cases interpreting the Miller Act, 40 U.S.C. Sec. 270b(a), a statute after which NDCC Sec. 48-02-15 was modeled. See Legislative Council file on House Bill 1459, Forty-third Session, 1973.

The test used under the Miller Act to determine when a subcontractor's contribution is complete, thus triggering the commencement of the 90-day notice period, is whether the last material or labor furnished is done as part of the original contract or merely to correct defects or to make repairs. United States v. Andrews, 406 F.2d 790 (4 Cir.1968); United States v. Hesselden Construction Co., 404 F.2d 774 (10 Cir.1968); United States Etc. v. DeMatteo Const. Co., 467 F.Supp. 22 (D.C.Conn.1979).

Here the trial court determined that Kuchenski completed his contribution on December 2, 1982, because it viewed his subsequent efforts as in effect remedying defects in his original work.

In the spring of 1983 Kuchenski served Kramer a notice of mechanic's lien, which Kuchenski later admitted was invalid, stating that he had completed his work on December 2, 1982 and demanding full payment. However, despite these assertions and the fact that he had not yet been paid, Kuchenski returned to the job site that summer. At that time he replaced a temporary water main with a permanent fitting and compacted and leveled the ground covering the water main. Kuchenski had originally installed the temporary fitting in order to connect a contractor's trailer with the water system. Installing the temporary fitting was not required by Kuchenski's contract with Dickinson Plumbing but rather was done pursuant to a separate agreement between Kuchenski and another contractor. At that time Kuchenski also had to raise several sewer cleanouts because initially he did not install them...