Schaffer v. Frank Moyer Const., Inc.

Decision Date21 May 1997
Docket NumberNo. 96-366,96-366
Citation563 N.W.2d 605
PartiesGregory R. SCHAFFER d/b/a Gregory R. Schaffer Construction, Appellant, v. FRANK MOYER CONSTRUCTION, INC., Appellee.
CourtIowa Supreme Court

Catherine Dietz-Kilen and Harvey L. Harrison of Harrison & Dietz-Kilen, Des Moines, for appellant.

John Haraldson and Robert J. Kuhle of Law Office of Robert J. Kuhle, P.C., West Des Moines, and David L. Wetsch, Des Moines, for appellee.

Considered by McGIVERIN, C.J., and LARSON, CARTER, SNELL, and TERNUS, JJ.

CARTER, Justice.

Gregory Schaffer, a finish carpentry contractor for the construction of a new home, appeals from a judgment dismissing his action to foreclose a mechanic's lien. In sustaining a motion to dismiss the petition, the district court concluded that Schaffer's lien was unenforceable because the property was an owner-occupied dwelling, and he had not given notice to the owners as required by Iowa Code section 572.14(2) (1995) prior to the time that the primary builder, defendant Frank Moyer Construction, Inc. (Moyer), had been paid in full. Schaffer urges that this statute does not affect the enforceability of his lien because Moyer had legal title to the property during the time Schaffer's work was performed and continued to hold that title until nine days after the filing of Schaffer's petition to foreclose the lien. After reviewing the record and considering the arguments of the parties, we reverse the judgment of the district court.

A motion to dismiss tests the legal sufficiency of a plaintiff's petition. Such motions are properly granted only if plaintiff's petition "on its face shows no right of recovery under any state of facts." Tate v. Derifield, 510 N.W.2d 885, 887 (Iowa 1994). A motion to dismiss admits well-pleaded facts and waives ambiguity or uncertainty in the petition. Id. Allegations in the petition are viewed in a light most favorable to the plaintiff. Id. Facts not alleged cannot be relied on to aid a motion to dismiss nor may evidence be taken to support it. Stearns v. Stearns, 187 N.W.2d 733, 734 (Iowa 1971).

In sustaining the motion to dismiss in the present case, the district court relied on Schaffer's concession that he had not served a notice of the type designated in section 572.14(2) on the persons who bought the home from the builder. It appears from the record that these persons, Steven Hartung and Michelle LaMasters, acquired the house from Moyer by warranty deed dated November 17, 1995, and filed of record with the Polk County recorder on that date. Schaffer has alleged in his petition that his work on the house was performed during the months of June, July, and August of 1995. He alleges his contract was with Moyer, the record titleholder until November 17. Schaffer filed his mechanic's lien on October 3, and on October 23, Moyer filed a demand for bringing suit pursuant to section 572.28. Hartung and LaMasters have at no time been parties to the present action.

Section 572.14(2) provides:

In the case of an owner-occupied dwelling, a mechanic's lien perfected under this chapter is enforceable only to the extent of the balance due from the owner to the principal contractor at the time written notice, in the form specified in subsection 3, is served on the owner. This notice may be served by delivering it to the owner or the owner's spouse personally, or by mailing it to the owner by certified mail with restricted delivery and return receipt to the person mailing the notice, or by personal service as provided in the rules of civil procedure.

An "owner-occupied dwelling" is defined as follows:

"Owner-occupied dwelling" means the homestead of an owner, as defined in section 561.1, and without respect to the value limitations in section 561.3, and actually occupied by the owner or the spouse of the owner, or both. "Owner-occupied dwelling" includes a newly constructed dwelling to be occupied by the owner as a homestead, or a dwelling that is under construction and being built by or for an owner who will occupy the dwelling as a homestead.

Iowa Code § 572.1(4).

In Louie's Floor Covering, Inc. v. DePhillips Interests, Ltd., 378 N.W.2d 923 (Iowa 1985), we held that one who contracted with a home builder for the purchase of a lot owned by the builder and a house to be constructed thereon was an owner of the property so as to render a floor covering contractor dealing with the builder a subcontractor rather than a primary contractor. We further held that the property fell within the definition of an owner-occupied dwelling as a result of the language of section 572.1(4) that extends such status to "a dwelling that is under construction and being built by or for an owner who will occupy the dwelling as a homestead."

The appellee argues that the present dispute is so similar to the Louie's Floor Covering case that a similar result must prevail. We disagree. There are two significant...

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11 cases
  • Rieff v. Evans
    • United States
    • Iowa Supreme Court
    • May 31, 2001
    ...II. Standard and Scope of Review "A motion to dismiss tests the legal sufficiency of a plaintiff's petition." Schaffer v. Frank Moyer Constr., Inc., 563 N.W.2d 605, 607 (Iowa 1997); Iowa R. Civ. P. 88(a), (f). On appeal from a motion to dismiss, we employ a limited review; it is not de novo......
  • Ritz v. Wapello County Bd. of Supervisors, 97-2134
    • United States
    • Iowa Supreme Court
    • June 3, 1999
    ...granted only if a plaintiff's petition "on its face shows no right of recovery under any state of facts." Schaffer v. Frank Moyer Constr., Inc., 563 N.W.2d 605, 607(Iowa 1997) (quoting Tate v. Derifield, 510 N.W.2d 885, 887 (Iowa 1994)). Allegations in the petition are viewed in a light mos......
  • V.W. Enterprises, Inc. v. City of Clarinda, No. 6-092/05-1051 (Iowa App. 10/11/2006)
    • United States
    • Iowa Court of Appeals
    • October 11, 2006
    ..."on its face shows no right of recovery under any state of facts," is it proper to grant a motion to dismiss. Schaffer v. Frank Moyer Constr., Inc., 563 N.W.2d 605, 607 (Iowa 1997). We view the petition in the light most favorable to the plaintiff, resolving all doubts and ambiguities in pl......
  • Logan v. Ameristar Casino Council Bluffs, Inc.
    • United States
    • U.S. District Court — Southern District of Iowa
    • February 4, 2002
    ...110, 112 (8th Cir.1994); Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999) (citing Schaffer v. Frank Moyer Constr., Inc., 563 N.W.2d 605, 607 (Iowa 1997)). Dismissal is appropriate only if it is clear from the face of the complaint that plaintiff has no right to rel......
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