Trane Co. v. Brown-Johnston, Inc., BROWN-JOHNSTO

• Court: Court of Appeals of Washington
• Citation: 739 P.2d 737,48 Wn.App. 511
• Decision Date: 16 July 1987
• Docket Number: No. 7789-6-III,BROWN-JOHNSTO,INC,7789-6-III
• Parties: The TRANE COMPANY, a Delaware corporation, Respondent, v., a Washington corporation; The County of Spokane; Liberty Lake Sewer District, a municipal corporation; Jeslyn Morris Schultz and John Doe Schultz, husband and wife; The W. Main Corporation, a Washington corporation; Transamerica Title Insurance Company; B.S. & T. Investments, Ltd., a Washington corporation; Bullock Trane Service Agency, Inc.; E.J. Bartells Company; Concrete Cutting Company, Inc.; Air Products, Inc.; and United Pacific Insurance Company, Defendants, ISC Systems Corporation; Appellant, Grinnell Fire Protection Services, Respondent. BAUGH INDUSTRIAL CONTRACTORS, INC., a Washington corporation, Appellant, v. Joseph H. MUNGER and Diane Munger, husband and wife, and the Munger marital community, Third-Party Defendants.

Page 511

48 Wn.App. 511 739 P.2d 737 The TRANE COMPANY, a Delaware corporation, Respondent,
v.
BROWN-JOHNSTON, INC., a Washington corporation; The County
of Spokane; Liberty Lake Sewer District, a municipal
corporation; Jeslyn Morris Schultz and John Doe Schultz,
husband and wife; The W. Main Corporation, a Washington
corporation; Transamerica Title Insurance Company; B.S. &
T. Investments, Ltd., a Washington corporation; Bullock
Trane Service Agency, Inc.; E.J. Bartells Company;
Concrete Cutting Company, Inc.; Air Products, Inc.; and
United Pacific Insurance Company, Defendants,
ISC Systems Corporation; Appellant,
Grinnell Fire Protection Services, Respondent.
BAUGH INDUSTRIAL CONTRACTORS, INC., a Washington
corporation, Appellant,
v.
Joseph H. MUNGER and Diane Munger, husband and wife, and the
Munger marital community, Third-Party Defendants. No. 7789-6-III. Court of Appeals of Washington,
Division 3. July 16, 1987.
Respondents' Motion for Reconsideration Granted and Opinion
Amended August 28, 1987.
Appellants' Motion for Reconsideration Denied August 28, 1987.

[739 P.2d 738]

Page 512

Sheri L. Flies, F. Douglas Ruud, Diamond & Sylvester, Seattle, for appellant.

John Rizzardi, Hatch & Leslie, Thomas Theisen, Williams, Lanza Kastner & Gibbs, Seattle, for respondents.

GREEN, Judge.

Summary judgment was entered in favor of The Trane Company and Grinnell Fire Protection Services foreclosing their construction liens against ISC Systems Corporation and Baugh Industrial Contractors, Inc. ISC and Baugh appeal.

The dispositive issue is whether an issue of material fact exists as to Trane and Grinnell's knowledge there was more than one contract between ISC, the property owner, and Baugh, the general contractor, so as to require them to file two claims of lien.

During 1981-82 ISC began to develop a plan for a manufacturing and warehousing complex at its Liberty Lake property. The complex was to be built in phases. On September 7, 1982, ISC entered into a written contract with Baugh, a general contractor, for the phase one construction of the manufacturing building. Baugh subcontracted the mechanical work to Brown-Johnston. Brown-Johnston in turn subcontracted the heating and air conditioning system (HVAC) to Trane and the fire protection work to Grinnell.

Page 513

Phase one construction began in May 1983 and was substantially completed in February 1984.

On June 30, 1983, Baugh and ISC entered into a written contract for construction of the phase two warehouse building. Baugh advised ISC it would be more economical if the major subcontractors for phase one were used to perform the phase two work, which they did. Baugh paid Brown-Johnston for work completed, but Brown-Johnston went bankrupt and failed to pay Grinnell and Trane.

On August 16, 1983, Trane sent ISC a notice of intent to lien for materials supplied to that date. On March 27, 1984, Trane sent a notice of intent to lien for materials not included in the prior notices. Subsequently, Trane filed a lien. Grinnell also sent a notice of intent to lien and later [739 P.2d 739] filed it. Both parties, Grinnell and Trane, brought this action to foreclose their liens and both moved for summary judgment. The motions were granted and they were awarded their attorney fees and costs. ISC and Baugh appeal.

Summary judgment is appropriate if the pleadings, depositions and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Del Guzzi Constr. Co. v. Global N.W., Ltd., 105 Wash.2d 878, 882, 719 P.2d 120 (1986). On review of a summary judgment, the appellate court places itself in the position of the trial court and assumes facts most favorable to the nonmoving party. Del Guzzi, at 882, 719 P.2d 120. The burden is on the moving party to prove no genuine issue of fact exists which could influence the outcome at trial. Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985). While generally a question of fact is properly left to the trier of fact, when reasonable minds could reach but one conclusion, questions of fact may be determined as a matter of law. Hartley, at 775, 698 P.2d 77. The nonmoving party is given the benefit of any factual doubt when a summary judgment is made. Hartley, at 777, 698 P.2d 77. Of course, after the moving party has established a prima facie case, the nonmoving

Page 514

party must set forth specific facts which sufficiently rebut the moving party's contention and disclose a genuine issue as to a material fact; the nonmoving party cannot merely claim contrary facts nor rely on speculation, argumentative assertions that unreasonable factual issues remain "or on affidavits considered at face value." Meyer v. University of Wash., 105 Wash.2d 847, 852, 719 P.2d 98 (1986). With these principles in mind, we turn to the statutes governing the liens at issue in this case.

RCW 60.04.020 provides in pertinent part:

Every person, firm or corporation furnishing materials or supplies ... to be used in the construction ... of any ... building ... shall give to the owner or reputed owner of the property ... a notice in writing, which notice shall cover the material, supplies or equipment furnished ... during the sixty days preceding the giving of such notice as well as all subsequent materials, supplies or equipment furnished ... No materialmen's lien shall be enforced unless the provisions of this section have been complied with ...

RCW 60.04.060 provides:

No lien created by this chapter shall exist, and no action to enforce the same shall be maintained, unless within ninety days from the date ... of the cessation of the performance of such labor, the furnishing of such materials, or the supplying of such equipment, a claim for such lien shall be filed for record as hereinafter provided, ...

Since labor and materialmen's liens are creatures of statute and are in derogation of common law, they must be strictly construed. Dean v. McFarland, 81 Wash.2d 215, 219-20, 500 P.2d 1244, 74 A.L.R.3d 378 (1972); Wells v. Scott, 75 Wash.2d 922, 925, 454 P.2d 378 (1969). Generally, after a contract is completed, the time for filing a claim of lien cannot be extended or the right revived by furnishing material or performing labor upon a new contract and tacking the same to the original contract. Boise Cascade...