Rocky Mountain Turbines, Inc. v. 660 Syndicate, Inc.

• Decision Date: 04 February 1981
• Docket Number: No. 5368,5368
• Parties: ROCKY MOUNTAIN TURBINES, INC., Appellant (Defendant), Wyoming Central Aero-Ways, Inc., Appellant (Intervenor), v. The 660 SYNDICATE, INC., Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 758

623 P.2d 758

ROCKY MOUNTAIN TURBINES, INC., Appellant (Defendant) Wyoming Central Aero-Ways, Inc., Appellant (Intervenor), v. The 660 SYNDICATE, INC., Appellee (Plaintiff).

No. 5368.

Supreme Court of Wyoming.

Feb. 4, 1981.

Donald R. Winship of Winship & Feeney, P. C., Casper, for appellants.

Barry G. Williams of Williams, Porter, Day & Neville, P. C., Casper, for appellee.

Before ROSE, C. J., and McCLINTOCK, RAPER, THOMAS and ROONEY, JJ.

ROONEY, Justice.

Appellee-plaintiff brought a replevin action against appellant-defendant Rocky Mountain Turbines, Inc. (hereinafter referred to as Rocky Mountain) to obtain possession of a DeHavilland Twin Otter aircraft (hereinafter referred to as aircraft) and for damages incurred as a result of unlawful possession of the aircraft by Rocky Mountain. Rocky Mountain filed an answer and counterclaim, the counterclaim Appellee leased the aircraft to Wyoming Airlines Limited (hereinafter referred to as Wyoming Airlines) on September 26, 1978 but it terminated the lease on March 19, 1979 for default in rental payments by Wyoming Airlines. The lease provided for monthly rentals of $15,000 and for $35 per hour flown for engine depreciation. Wyoming Airlines was to pay all costs of maintenance, operation, registration and other charges. Appellee was to replace the engine when it "timed out." The repairs performed on the aircraft by Rocky Mountain and by Central were performed during the period of lease to Wyoming Airlines at Wyoming Airlines' request. The lease was signed on behalf of Wyoming Airlines by its president, who was also an officer and stockholder of Rocky Mountain and a part owner of Central.

being later amended, in which it: (1) requested foreclosure of a mechanic's lien held by it on the aircraft; (2) alleged entitlement to storage charges; and (3) requested payment for repairs made to the aircraft which allegedly unjustly enriched appellee. Appellant-intervenor Wyoming Central Aero-Ways, Inc. (hereinafter referred to as Central) also requested payment for repairs made to the aircraft which allegedly unjustly enriched appellee.

After the most recent repair work on the aircraft by Rocky Mountain and Central, possession of it was returned to Wyoming Airlines, and it was flown by Wyoming Airlines in connection with its business. A lien statement was not filed by either Rocky Mountain or Central.

After a trial to the court, judgment was entered in favor of appellee on its complaint and against Rocky Mountain and Central on their counterclaim. Appellee was awarded $60,000 damages against Rocky Mountain for wrongful detention of the aircraft.

Rocky Mountain alleges error: (1) in the holding by the trial court that its lien was lost upon surrender of the possession of the aircraft without first filing a lien statement; and (2) in application by the trial court of an improper measure of damages to arrive at the amount of $60,000. Rocky Mountain and Central allege error in exclusion by the trial court of evidence relative to their theory of unjust enrichment, quantum meruit or quasi-contract claims (Rocky Mountain includes right of offset to damages as one of the theories to which this evidence was applicable).

We affirm.

POSSESSION NECESSARY FOR MECHANIC'S LIEN

Wyoming Airlines took the aircraft from Rocky Mountain and flew it after the repairs on which Rocky Mountain claims a lien were made. Rocky Mountain did not file a lien statement. Rocky Mountain contends that its lien was valid by virtue of subsequent acquisition by it of possession of the aircraft.

Following are pertinent portions of the statutes which are dispositive of this issue:

Section 29-7-101(a), W.S.1977:

"(a) Any person, firm or corporation who makes, alters, repairs, bestows labor upon, transports, stores or keeps any goods or chattels, or who feeds, herds, pastures or cares for any domestic or wild animal, at the request of the owner or any person in possession thereof, has a lien on such goods, chattels or animal for his or its reasonable charges for the labor, services, materials and feed performed or provided."

Section 29-7-102, W.S.1977:

"A lienor may retain possession of the property to which the lien pertains until paid for the labor, services, materials and feed which entitle the lienor to assert the lien; provided the right of possession shall terminate six (6) months after the date upon which the charges for the labor, services, materials and feed become due and payable unless the lienor has commenced proceedings to foreclose the lien as provided in this act (§§ 29-7-101 to 29-7-106) within such six (6) months." (Emphasis supplied.)

Section 29-7-103(a) and (b), W.S.1977 "(a) A lienor desiring to continue a lien without retaining possession may, with the written consent of the owner, before releasing possession, file a lien statement in the office of the county clerk of the county where the property is located.

"(b) A lien statement shall set forth the name and address of the lienor, the name and address of the owner of the property, a description of the property, the amount of the lien and the nature of the labor, services, feed and materials giving rise to the lien, and shall contain a statement that the lienor was in possession of the property at the time the lien statement was filed. A lien statement shall be verified under oath by the lienor or his agent or attorney." (Emphasis supplied.)

Section 29-7-104, W.S.1977:

"(a) A lien under this act (§§ 29-7-101 to 29-7-106) shall terminate:

"(i) Upon a lienor's voluntary surrender of possession of the property, unless a lien statement has previously been filed as provided in section 3 (§ 29-7-103);

"(ii) Six (6) months after the date upon which the charges for labor, services, materials and feed giving rise to the lien become due and payable, unless a lien statement has previously been filed as provided in section 3 or unless action to enforce and foreclose the lien has been commenced; and

"(iii) Six (6) months after a lien statement has been filed as provided in section 3, unless action to enforce and foreclose the lien has been commenced.

"(b) Upon termination of a lien, the lienor shall have no further right to possession of the property and no further interest therein." (Emphasis supplied.)

The foregoing language is plain in that the lien established thereby is a possessory lien which terminates upon the "voluntary surrender of possession" unless "a lien statement has previously been filed." The common-law lien was similar:

"The right to a common-law lien is based directly on the idea of possession, and it is indispensable that the one claiming it have an independent and exclusive possession of the property. Such a lien arises only when possession is obtained, and exists only so long as it is retained. * * *" (Emphasis supplied.) 51 Am.Jur.2d Liens § 21, p. 159.

"As a general rule a common-law or other lien dependent on possession is waived or lost by the lienholder voluntarily and unconditionally parting with possession or control of the property to which it attaches; and such lien cannot be restored thereafter by resumption of possession. * * *" (Emphasis supplied). 53 C.J.S. Liens § 17d(3), p. 864.

We have so held in construing and applying statutes similar to § 29-7-101, W.S.1977, et seq. and predecessor thereto. See for example, Fein v. Wyoming Loan & Trust Co., 3 Wyo. 331, 22 P. 1150 (1890); and Nebraska Machinery Company v. Schoenheit Trucking Company, 76 Wyo. 140, 301 P.2d 555 (1956).

The statutes are too plain and unambiguous to require further discussion. Rocky Mountain's lien terminated when it relinquished possession of the aircraft without having previously filed a lien statement. A subsequent obtaining of possession of the aircraft does not restore the terminated lien.

MEASURE OF DAMAGES

The trial court made the following findings to set $60,000 as the amount of appellee's damages:

"(2) On March 16, 1979, plaintiff (appellee) terminated the lease in accordance with the lease terms because of the lessee's (Wyoming Airlines) default. Plaintiff negotiated another lease with the government of Haiti for a net profit of $20,000.00 per month over a two-year term, contingent upon delivery of the plane to Haiti by April 2, 1979.

"(3) Plaintiff was unable to enter into the contract with Haiti because the defendant (Rocky Mountain) illegally detained the plane past the April 2, 1979, delivery date. Plaintiff was unable to secure another lease until July, 1979. Therefore, plaintiff lost profits of $20,000.00 per month for three months due to the unlawful detention by defendant, for a total judgment of $60,000.00 plus court costs. * * * " (Bracketed material supplied.)

Rocky Mountain contends that the evidence relative to the Haiti lease was speculative and should not have been received. The evidence reflects that appellee began efforts to re-lease the aircraft immediately after termination of the lease with Wyoming Airlines. An agreement to make a lease was entered into with the government of Haiti. The Haiti agreement was obtained by a broker. Appellee offered to post cash or surety bond for double the amount claimed for return of the aircraft in order to meet the time condition of the Haiti agreement. Rocky Mountain refused the offer. The $20,000 per month rental figure was positive. The evidence was adequate to support the finding of existence of the agreement and the terms thereof. There was no evidence presented at the trial or contained in discovery efforts to the contrary.

On appeal, we presume findings of fact made by the trial court are correct, and they will not be disturbed where they are not inconsistent with the evidence, clearly erroneous or contrary to the great weight of the evidence. Diamond Management Corporation v. Empire Gas Corporation, Wyo., 594 P.2d 964 (1979); and Madrid v. Norton, Wyo., 596 P.2d 1108 (1979).

Rocky Mountain also contends that the rentals to be received under...