Struksnes v. Kevin's Plumbing & Heating, Inc.

• Decision Date: 23 December 1997
• Docket Number: No. 970203,970203
• Citation: 572 N.W.2d 815
• Court: North Dakota Supreme Court
• Parties: Harold STRUKSNES and First American Bank West, as Co-trustees of the Christ H. Struksnes Trust, Plaintiffs and Appellees, v. KEVIN'S PLUMBING & HEATING, INC., Defendant and Appellant, and J & D Refrigeration, Inc., & Northwestern Electric, Inc., Defendants. Civil

Page 815

572 N.W.2d 815

1997 ND 245

Harold STRUKSNES and First American Bank West, as Co-trustees of the Christ H. Struksnes Trust Plaintiffs and Appellees, v. KEVIN'S PLUMBING & HEATING, INC., Defendant and Appellant and J & D Refrigeration, Inc., & Northwestern Electric, Inc., Defendants.

Civil No. 970203.

Supreme Court of North Dakota.

Dec. 23, 1997.

Michael A. Bosh, of Pringle & Herigstad, P.C., Minot, for plaintiffs and appellees.

Robert S. Rau, of Bosard, McCutcheon & Rau, Ltd., Minot, for defendant and appellant.

SANDSTROM, Justice.

¶1 Kevin's Plumbing & Heating, Inc. has appealed judgments declaring it has no estate or interest in, lien or encumbrance upon two lots in Minot, in a quiet title action brought by Harold Struksnes & First American Bank West, as co-trustees of the Christ H. Struksnes Trust. We affirm, concluding the Trust's sublessee was not its agent in having repairs made to its property.

I

¶2 The Trust owned Lots 1 and 2, Struksnes Addition to the City of Minot. The Trust leased the land to Food Host, U.S.A., Inc. The lease provided:

"8. The Lessee shall not suffer the premises or any erection or improvements thereon to become subject to any lien, charge, or incumbrance whatsoever, other than mortgages as hereinafter provided and shall indemnify the Lessors against all such liens, charges, and incumbrances; it being expressly agreed that the Lessee shall have no authority, express or implied, to create any lien, charge, or incumbrance, other than mortgages upon the premises for the improvements thereon, which mortgages shall be subject to the approval of the Lessors, which approval shall not be unreasonably withheld.

* * * * *

"12. The Lessee shall keep the building to be erected, and other buildings and erections which may at any time during the specified term be erected upon the premises, and the drains and appurtenance in good condition and repair."

¶3 Food Host sublet the property to Resdak, Inc. In 1995, Resdak had Kevin's Plumbing make some repairs and replace a water heater. When Kevin's Plumbing was not paid, it served a mechanic's lien notice on the Trust. The Trust served a notice advising Kevin's Plumbing the Trust "has not authorized any improvements or repairs" to the property and "this objection is being made within five (5) days after knowledge of the improvement was received by the owner." On February 20, 1996, Kevin's Plumbing filed a mechanic's lien.

¶4 The Trust sued to quiet title. Kevin's Plumbing moved for summary judgment. The district court granted summary judgment in favor of the Trust and against Kevin's Plumbing. A judgment entered against Kevin's Plumbing and two other defendants provided:

"1. All of the Defendants' adverse claims to the above-described real estate are null and void;

"2. The Defendants have no estate or interest in, or lien or encumbrance upon, said property;

"3. Title in said property is quieted in [the Trust] against any such adverse claims;

"4. The Defendants are forever barred from further asserting any such adverse claims."

Another judgment entered against Kevin's Plumbing provided:

"The Mechanic's Lien claimed by Kevin's Plumbing & Heating, Inc. against Lot 1 & 2, Struksnes Addition to the City of Minot is adjudged null and void and deemed satisfied, with Kevin's Plumbing & Heating, Inc. having no estate, or interest in, or lien or encumbrance upon, said property."

¶5 The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 32-17-01. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. Art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-02.

II

¶6 Summary judgment is a procedural device for disposing of a controversy without a trial "if either party is entitled to judgment as a matter of law, if no dispute exists as to either material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result." Earthworks, Inc. v. Sehn, 553 N.W.2d 490, 493 (N.D.1996). The parties agree there are no material facts in dispute. "Summary judgment is appropriate if the only questions to be decided are questions of law." American St. Bank & Trust Co. v. Sorenson, 539 N.W.2d 59, 61 (N.D.1995).

¶7 N.D.C.C. § 35-27-02 provides, in part:

"Any person who improves real estate by the contribution of labor, skill, or materials, whether under contract with the owner of such real estate or under contract with any agent, trustee, contractor, or subcontractor of the owner, has a lien upon the improvement and upon the land on which it is situated or to which it may be removed for the price or value of such contribution."

Under N.D.C.C. § 35-27-01, improvements include repairs. N.D.C.C. § 35-27-07 provides:

"When land is sold under an executory contract requiring the vendee to improve the same and such contract is forfeited or surrendered after liens have attached by reason of such improvements, the title of the vendor is subject thereto, but he is not personally liable if the contract was made in good faith. When improvements are made by one person upon the land of another, all persons interested therein otherwise than as bona fide prior encumbrances or lienors are deemed to have authorized such improvements, insofar as to subject their interest to liens therefor. Any person who has not authorized the same may protect his interest from such liens by serving upon the person doing work or otherwise contributing to such improvement within five days after knowledge thereof, written notice that the improvement is not being made at his instance, or by posting like notice, and keeping the same posted, in a conspicuous place on the premises. As against a lessor no lien is given for repairs made by or at the instance of his lessee, unless the lessor has actual or constructive notice thereof and does not object thereto."

¶8 The Trust argues the last sentence of N.D.C.C. § 35-27-07 unambiguously limits the creation of mechanics' liens against a lessor for repairs made at the instance of a lessee. Kevin's Plumbing argues the statute only applies to situations where property is sold under contract and others improve the property for the purchaser.

¶9 "The North Dakota mechanic's lien law is remedial, and should be liberally construed to effectuate its purpose ... to protect those persons who improve real estate by the contribution of labor, skill, or materials." Nesdahl Surveying & Eng'g, P.C. v. Ackerland Corp., 507 N.W.2d 686, 689 (N.D.1993). Our "primary goal in construing a statute is to ascertain the intent of the Legislature." Medcenter One, Inc. v. North Dakota St. Bd. of Pharmacy, 1997 ND 54, p 13, 561 N.W.2d 634. "If the language of a statute is clear and unambiguous, the legislative intent is presumed clear from the face of the statute." Medcenter One. The last sentence of N.D.C.C. § 35-27-07 shows the legislature intended the statute to deal with both contract vendors and lessors. See Mid-America Steel, Inc. v. Bjone, 414 N.W.2d 591, 596 (N.D.1987) (last sentence of N.D.C.C. § 35-27-07 shows the legislature could have adopted an acquiescence rule for contract vendors as it did for lessors, but did not do so). The last sentence of N.D.C.C. § 35-27-07 clearly and unambiguously deals with leases. We conclude N.D.C.C. § 35-27-07 applies to situations in which repairs are made to a lessor's property at the instance of his lessee.

¶10 Kevin's Plumbing contends the Trust had knowledge of the repairs through Resdak, its agent, and through the lease, which "specifically directed and authorized the repairs to be performed."

¶11 A person is presumed to act for himself, rather than as the agent of another. Hector v. Metro Centers, Inc., 498 N.W.2d 113, 118 (N.D.1993). Agency is a matter of fact, and a party alleging the existence of an agency relationship must establish it by clear and convincing evidence. Hector. The mere existence of a landlord-tenant relationship...