Seafirst Mortg. Corp. v. Specialty Concrete Const., 85-104

• Decision Date: 18 November 1985
• Docket Number: No. 85-104,85-104
• Citation: 708 P.2d 1245
• Parties: SEAFIRST MORTGAGE CORPORATION, Appellant (Defendant), v. SPECIALTY CONCRETE CONSTRUCTION, a partnership, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1245

708 P.2d 1245

SEAFIRST MORTGAGE CORPORATION, Appellant (Defendant), v.SPECIALTY CONCRETE CONSTRUCTION, a partnership, Appellee (Plaintiff).

No. 85-104.

Supreme Court of Wyoming.

Nov. 18, 1985.

Barry G. Williams, Williams, Porter, Day & Neville, P.C., Casper, signed the briefs and appeared in oral argument on behalf of appellant.

Peggy Taylor Pfau, Daly, Maycock, Anderson and Taylor, Gillette, signed the brief on behalf of appellee.Appellee submitted the case upon its brief.

Before THOMAS, C.J., and ROSE, ^*ROONEY, BROWN and CARDINE, JJ.

ROONEY, Justice.

Appellee, plaintiff below, performed work on property located in Campbell County, Wyoming under contract with Earl D. Manous and Shirley J. Manous.The work was completed on October 10, 1983.Having not received payment for said work, appellee filed a mechanic's and materialman's lien on January 31, 1984.A civil action was commenced and the lien was reduced to judgment on July 11, 1984.

Appellant, Seafirst Mortgage Corporation, the successor in interest to a mortgage dated November 30, 1983 on the same property, was never given notice of the lien, nor was it joined in the civil action.Prior to a sale of the property by appellee to enforce the judgment, appellee brought this action seeking a declaratory judgment that appellee's mechanic's lien was prior to the interest of appellant, and seeking to enforce said lien by foreclosure free and clear of any interest of appellant.Appellee moved for summary judgment and appellant filed a motion to dismiss; the case was argued to the district court as a matter of law.

The district court, in granting summary judgment to appellee, found that appellee's lien has priority over appellant's mortgage as a matter of law, and that appellant"should not be able to avail itself of the statute of limitations defense at this time, as it was not available to the original defendants, Manous' in the foregoing action."The court also held that appellee"shall be able to foreclose its lien, free and clear on any interest of Seafirst."

Appellant words the issues on appeal:

"A.WHETHER OR NOT THE TRIAL COURT ERRED IN ITS FINDING THAT THE APPELLEE'S ACTION IN THE LOWER COURT WAS NOT BARRED BY THE STATUTE OF LIMITATIONS RELATING TO MECHANIC'S AND MATERIALMAN'S LIENS AND SPECIFICALLY THE FINDING THAT THE APPELLANT COULD NOT AVAIL ITSELF OF THE STATUTE OF LIMITATIONS AS IT WAS NOT AVAILABLE TO THE OWNERS OF THE PROPERTY IN A PREVIOUS ACTION?

"B.WHETHER OR NOT THE TRIAL COURT ERRED IN RULING THAT THE APPELLEE COULD FORECLOSE ITS MECHANIC'S LIEN FREE AND CLEAR OF ANY INTEREST OF THE MORTGAGE OF THE APPELLANT?"

We reverse.

Section 29-2-109, W.S.1977, ¹ provides for a statute of limitations pertinent to mechanic's and materialman's liens.All such actions must be commenced within 180 days after filing of the lien statement.It is undisputed in this case that a suit was commenced within 180 days against the owners of the property, but not against the mortgage interest holder, i.e., appellant.

The general rule is that failure to join a mortgage interest holder in a lien foreclosure action is not fatal to such action, but that if not joined, the mortgage interest holder's interests are not affected by such action.

"In the absence of a statute declaring otherwise, mortgagees, holders of deeds of trust, and other encumbrancers, whether prior or subsequent to the mechanic's lien, are proper, but not necessary, parties to the action to enforce or foreclose such lien.The plaintiff's failure to join such parties is not fatal to his action, but the result is that the rights of such persons acquired prior to the commencement of the foreclosure suit are not affected by the proceedings. * * * "53 Am.Jur.2dMechanics' Liens, § 364, p. 889.

In this case, the trial court held that the statute of limitations was not available to appellant, the mortgage interest holder, inasmuch as it was not available to the original defendants.We fail to see the relevancy of the availability or nonavailability to the original defendants.The statute clearly states that no lien shall continue to exist except by virtue of the provisions of this chapter for more than 180 days after the lien is filed, absent an action to foreclose.No action was brought within 180 days to...