McDonald v. Filice

• Decision Date: 14 July 1967
• Citation: 60 Cal.Rptr. 832,252 Cal.App.2d 613
• Court: California Court of Appeals Court of Appeals
• Parties: Marshall Welch McDONALD, Plaintiff and Respondent, v. James H. FILICE and Mary A. Filice, Defendants and Appellants. Civ. 751.

Page 832

60 Cal.Rptr. 832

252 Cal.App.2d 613

Marshall Welch McDONALD, Plaintiff and Respondent, v. James H. FILICE and Mary A. Filice, Defendants and Appellants.

Civ. 751.

Court of Appeal, Fifth District, California.

July 14, 1967.

John Corry Fell, San Jose, for appellants.

Edwards, Friborg & Duda, and Frederick R. Duda, Oakland, for respondent.

GARGANO, Associate Justice.

In the fall of 1961 respondent, a licensed architect, contacted appellants who were joint owners of two adjacent parcels of real property located near the shores of Lake Tahoe, California, and secured their permission to submit a design proposal for the construction of a motel on their land. A month or two later respondent prepared an architectural rendering of a four-story motel and in due time the preliminary drawings or sketches were submitted to the Board of Supervisors of El Dorado County for zoning approval. The board, however, objected to the construction of a four-story motel, but agreed to a zoning change to permit the erection of a two-story development. Accordingly, on or about January 16, 1962, the parties entered into a written contract for the development of specifications and architectural drawings for a 100-unit motel to be built by increments as financing became available. The first stage was to consist of 34 units, together with a general lounge room, parking lot and swimming pool. Under the contract, as compensation for his services, respondent was to receive 5% Of the construction costs of the first stage, which he estimated at $347,000. The contract also provided that he was to receive 30% Of this fee when the preliminary drawings and outline specifications were completed. At the time the contract was signed respondent had been paid a fee of $1,000 for his preliminary sketches and for the services which he performed in procuring the zoning approval. Moreover, since he also found it necessary to have working capital to begin the project, respondent borrowed $5,205 (a sum approximating his preliminary fee) from the Central Valley National Bank and appellants endorsed his promissory note as sureties. Ultimately the bank sued on the note and appellants paid the full amount thereof. In the meantime respondent, after numerous consultations with appellants, completed the preliminary drawings and outline specifications for the proposed project. Thereafter, he also prepared working drawings. These drawings included structural and electrical engineering details prepared by structural and electrical engineers at a total out-of-pocket expense to respondent amounting to $3,340. When the working drawings were approximately 90% Completed 'upset price' bids (maximum bids) were secured from two separate contractors. However, after these bids were received appellants requested respondent to take no further action on the program because they wished to 'look into other ways of executing the project.' Respondent consented, but requested payment for the services which he had already performed. In this connection, respondent testified that he told appellant James Filice that an additional payment of approximately $9,000 would be required. On the other hand, Mr. Filice testified that respondent stated that an additional payment of approximately $3,000 would suffice. In any event, it was agreed that respondent would be paid for the reasonable value of his services upon the submission of a statement. Thereafter, a dispute resulted as to what constituted reasonable value, and when appellants failed to pay the sum specified by respondent in the statement which he submitted, respondent recorded a mechanic's lien for the alleged reasonable value of his services. He subsequently filed this action in the Superior Court of El Dorado County to foreclose the lien and to recover a personal judgment against the appellants. The cause was tried by the court sitting without a jury, and after judgment was entered in favor of the respondent, the appellants appealed.

Since it is manifest that no improvement of any kind was constructed or even commenced on appellants' land, the first question which we must decide is whether respondent nevertheless acquired a lien against the land for the reasonable value of his services under the mechanic's lien laws of this state as these laws are set forth in Title 4, Chapter 1, commencing with section 1180 of the Code of Civil Procedure. In other words, section 1181 of the Code of Civil Procedure expressly includes licensed architects in the list of persons who may acquire a mechanic's lien, and thus it is clear that respondent would have been entitled to a lien if his work had resulted in the construction of a motel as originally contemplated by the parties. However, since the work had not progressed beyond the preparation of working drawings we must decide if it was nevertheless sufficient to create a mechanic's lien under the facts of this case.

Respondent cites Nolte v. Smith, 189 Cal.App.2d 140, 11 Cal.Rptr. 261, 87 A.L.R.2d 996, and argues that Nolte clearly supports the trial court's decision in his favor on the issue. In that case the plaintiff, a licensed surveyor, was employed by the defendants to perform the engineering services necessary to subdivide defendant's property into residential lots. The services consisted of surveying, planning and mapping the property, preparing a subdivision map for recording, and constructing and erecting permanent monuments. The plaintiff satisfactorily completed his work in accordance with the contract of employment, but the subdivision map was never approved by the town council because the required bond was not posted by the defendant. There, as here, it was contended that no lien attached against defendant's property under Code of Civil Procedure sections 1181 and 1182 because no improvement of a permanent character had been constructed or even commenced on the property, and that hence the land had not received any benefit from the plaintiff's work. The court, in upholding the plaintiff's lien, held that the setting of permanent monuments on the ground for land subdivision (following extensive engineering services) was similar to the commencement of a 'work of improvement' or 'improvement,' and was an integral and essential part of the 'scheme of improvement,' as those terms are used in Code of Civil Procedure section 1182. Moreover, relying on McIntosh v. Funge, 210 Cal. 592, 292 P. 960, 74 A.L.R. 420, the court also stated that benefit to the owner is not a prerequisite to a lien where the improvement is not completed or is destroyed as a result of the owner's fault (Nolte, supra, 189 Cal.App.2d at p. 148, 11 Cal.Rptr. 261).

Appellants, arguing the contrary position, strongly rely on Design Associates, Inc. v. Welch, 224 Cal.App.2d 165, 36 Cal.Rptr. 341, and Fiske v. School Dist., 58 Neb. 163, 78 N.W. 392. In Design the trial court had found from the evidence that the only authorized work performed by the plaintiff (a licensed architect) consisted of preliminary renditions to be used for a prospectus for the sale of the shares of a proposed corporation. The appellate court, in affirming the trial court's determination that lienable work had not been performed, stated at page 174 of 224 Cal.App.2d, at page 346 of 36 Cal.Rptr.:

'Since, in California, architects who perform services for 'the construction, alteration, addition to, or repair * * * of, any building, structure, or other work of improvement shall have a lien upon the property upon which they have bestowed labor,' (Code Civ.Proc., § 1181) such an express legislative mandate must not be given a construction so narrow as to defeat its purpose. Nevertheless, its application cannot be strained to encompass 'pre-preliminary' work intended principally as a prospectus for a public stockselling campaign; * * *'

And, in Design at page 174, 36 Cal.Rptr. at page 346, the court distinguished the Nolte case as follows:

'Three facts present there, not present here, distinguish that case from this: (1) the plans there prepared were not preliminary, but approved and final; (2) permanent monuments had been staked out on the ground; and (3) the failure of the project was due to the fault of the person whose interest in the land was sought to be charged. There is no showing here that the sale of shares failed due to the fault of Welch.'

The Fiske case which was cited with approval in Design did not involve a mechanic's lien. However, the Supreme Court of Nebraska, in discussing the question of when plans of an architect are part of the 'work of improvement,' stated at page 393 of 78 N.W.:

'The work of an architect may or may not, according to circumstances, fall within the head of building operations. * * * an architect who prepares plans according to which a building is actually constructed may be said to furnish work in the construction of such building, especially when he superintends the construction. But the preparation of plans is often necessary as a preliminary, merely to assist an owner in determining whether he shall build, and, if so, how. While the project remains in this stage, the work cannot be said to be of a structural character. * * * Perhaps, if the building be actually constructed, the drawing of plans then enters into the construction; but this we do not decide. What we hold is that the preparation of plans and specifications, merely in anticipation of erecting a building,--an anticipation which may or may not be realized,--is not essentially a building operation * * *. The distinction has been sharply drawn in Pennsylvania, where it was held that an architect who superintends construction may have a mechanic's lien for his work, but that one who merely prepares plans to enable the builder to determine the kind of a building he will erect does no work 'for or about the construction of the building,' and has therefore no lien. Bank (of Pennsylvania) v. Gries, 35 Pa.St. 423; Price v. Kirk, 90 Pa.St....