Wefel v. Harold J. Westin and Associates, Inc., 13518

• Decision Date: 26 January 1983
• Docket Number: No. 13518,13518
• Citation: 329 N.W.2d 624
• Parties: Merle D. WEFEL, d/b/a Diversified Acoustics Drywall, Plaintiff, v. HAROLD J. WESTIN AND ASSOCIATES, INC., H.J. Westin and Associates, P.A., Harold J. Westin Constructors, Inc., a corporation, Rouse Mechanical, Inc., a corporation, Hunt Electric Corp., Inc., a corporation, Defendants, and City of Rapid City and Medical and Dental Building, a partnership, Defendants and Appellees, and Howard-Osmera & Associates, Inc., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 624

329 N.W.2d 624

Merle D. WEFEL, d/b/a Diversified Acoustics Drywall Plaintiff, v. HAROLD J. WESTIN AND ASSOCIATES, INC., H.J. Westin and Associates, P.A., Harold J. Westin Constructors, Inc., a corporation, Rouse Mechanical, Inc., a corporation, Hunt Electric Corp., Inc., a corporation, Defendants and City of Rapid City and Medical and Dental Building, a partnership, Defendants and Appellees and Howard-Osmera & Associates, Inc., Defendant and Appellant.

No. 13518.

Supreme Court of South Dakota.

Argued April 27, 1982.

Decided Jan. 26, 1983.

Thomas E. Simmons of Bangs, McCullen, Butler Foye & Simmons, Rapid City, for defendant and appellant Howard-Osmera & Associates, Inc.; Michael M. Hickey of Bangs, McCullen, Butler Foye & Simmons, Rapid City, on brief.

Curtis S. Jensen of Gunderson, Farrar, Aldrich, Warder & De Mersseman, Rapid City, for defendants and respondents Medical and Dental Bldg. and City of Rapid City.

MORGAN, Justice.

This appeal arises from the foreclosure of a mechanic's lien filed by appellant Howard-Osmera & Associates, Inc. (Engineer), on property owned by the City of Rapid City (City) and leased to Medical and Dental Building, a partnership (Building Partnership). The trial court granted a directed verdict for appellees, City and Building Partnership. Engineer appeals and we reverse and remand.

On December 23, 1976, Building Partnership, upon leasing the subject property from City, contracted with Harold J. Westin Constructors, Inc. (Construction Manager) to construct a medical and dental clinic in Rapid City, South Dakota. ¹ On that same day, the architect for the construction, Harold J. Westin and Associates, Inc. (Architect), contracted with Engineer for mechanical and electrical design of the building. The contract called for two payments; 80% due upon completion of the construction documents and the remaining 20% upon completion of construction. The contract further provided that any additional work would be paid at fixed hourly rates.

Construction on the project began in the spring of 1977 and continued in stages as additional doctors decided to move into the building. In July 1977 Engineer submitted its invoice for the first 80% of its fixed fee. As late as March 1978 Engineer was designing new areas within the building for additional medical personnel. On October 19, 1978, Lawrence Howard and Al Osmera, the principals of Engineer, conducted an on-site inspection of the mechanical and electrical portions of the construction project and compiled a punch list of work to be completed. Subsequently, on October 24, 1978, Engineer submitted an invoice to Construction Manager for "final inspection" and an invoice to Architect for the remaining "20% due upon completion of the project." On October 31, 1979, Architect issued to Construction Manager a certificate of completion stating that the work "involved in the project is now 100% complete ... except for those items mentioned in the attached punch lists." Engineer did not receive a copy of the certificate of completion.

One of the items on the electrical punch list stated: "Connect up Humidifiers Priority # 1." Although the humidifiers were in place, they were not electrically connected until approximately November 1, 1978. When the humidification system began operating, problems developed with condensation in the duct work resulting in water leakage. In August 1979 Rouse Mechanical, Inc., a subcontractor on the project, consulted with Engineer concerning the humidification system and the project. On October 4, 1979, Construction Manager consulted with Engineer concerning the problems with the humidification system. One month later, Construction Manager filed a petition for bankruptcy. Engineer filed a mechanic's lien on December 17, 1979, in the amount of $20,934, with interest. At the trial for foreclosure of the mechanic's lien, the court granted Building Partnership's motion for a directed verdict. ² Engineer appeals, alleging that lienable work was done within 120 days of filing the mechanic's lien.

Although the court granted a motion for a directed verdict, SDCL 15-6- When a court dismisses an action, the court must make findings of fact and conclusions of law pursuant to SDCL 15-6-52(a). The court's dismissal of the action operates as an adjudication upon the merits. SDCL 15-6-41(b). Since the dismissal operates as an adjudication upon the merits, on appeal this court reviews the findings of fact under the "clearly erroneous" standard. 5 Moore's Federal Practice Sec. 41.13 at 41-196 to 198. The conclusions of law are reviewed under the usual "in error as a matter of law."

                41(b) 3 states that this is a motion for dismissal.  Federal Rule of Civil Procedure 41(b) was amended in 1963 to provide that "the motion for dismissal at the close of the plaintiff's evidence shall apply only to non-jury cases ....  Hereafter the correct motion in jury-tried cases will be the motion for a directed verdict."    5 Moore's Federal Practice Sec. 41.13 at 41-176.  Since the instant case was tried to a court without a jury, the actual motion granted by the court was a motion for dismissal
                

Initially, we must determine whether Engineer's services are the type of services within the contemplation of our mechanic's lien statutes. SDCL 44-9-1 specifically provides:

Whoever shall, at the request of the owner or the duly authorized agent or representative of the owner, or of any contractor or subcontractor, furnish skill, labor, services, including light, power, or water, equipment, or materials for the improvement, development, or operation of property as hereinafter specified, shall have a first lien thereon and the appurtenances thereto, ... for the price or value of the same, so furnished, subject to the further provisions of this chapter, as follows:

(1) For the erection, alteration, repair, or removal of any building, fixture, bridge, fence, or other structure ....

(Emphasis added.) The mechanic's lien filed by Engineer is for skills and services performed by Engineer. Further, the record indicates that the services performed by Engineer were requested by contractors or subcontractors. Clearly, these services are within the scope of the mechanic's lien statutes and are "lienable work."

The remaining issue is whether the Engineer timely filed the mechanic's lien. SDCL 44-9-15 states that:

The lien shall cease at the end of one hundred twenty days after doing the last of such work, or furnishing the last item of such skill, services, material, or machinery, unless within such period a statement of the claim therefor be filed with the register of deeds of the county in which the improved premises are situated, or of the county to which such county is attached for judicial purposes, or if the claim be under the provisions of subdivision (2) of Sec. 44-9-1, with the secretary of state.

Accordingly, for the mechanic's lien to include all of the services provided by Engineer on the contract, the work done in October 1979 would have to be part of the Engineer's continuing obligation under the contract.

Several times this court has addressed whether supplies or services were part of a The instant case, however, presents us with a unique set of circumstances. Here, the construction was completed in stages of areas of the building; as new medical personnel decided to move into the building, Engineer would design an additional suite. Engineer was providing these additional designing services as recently as March 1978. Further, the item to which the mechanic's lien related was a consultation regarding the humidification system. Since a humidification system is not used until the winter season and this system was not turned on until the winter of 1978-79, the Construction Manager, Engineer and subcontractor worked throughout the summer and fall of 1979 to correct the problem. The time sequence of construction and the seasonal nature of the humidification system distinguish this case from previous cases resolving the timely filing of a mechanic's lien.

                continuing obligation under a contract. 4   In several of these cases, we have held that the 120-day period cannot be extended by a return to the worksite.  In Thorson v. Pfeifer, 82 S.D. 313, 145 N.W.2d 438 (1966), where a heating subcontractor returned voluntarily over three months after installation to inspect and winterize the unit, this court held that the 120-day filing period ran from installation and not the voluntary service call.  Similarly, in Big Sioux Lumber Co. v. Miller, 57 S.D. 506, 234 N.W. 31 (1930), a contractor returned over two years after construction of a building to strengthen it.  There, this court refused to permit the contractor's statement filed within ninety days of that visit to relate back to the original construction contract.  Also, in F.H. Peavey & Company v. Whitman, 82 S.D. 367, 146 N.W.2d 365 (1966), where a materialman furnished adhesive to glue loose shingles blown up by high winds, this court held that the subsequently filed mechanic's lien did not attach to materials furnished a year earlier under a contract to build plaintiff's house.  Most recently, in McLaughlin Elec. Supply v. Am. Empire Ins., 269 N.W.2d 766 (S.D.1978), we refused, for purposes of the 120-day period, to allow a contractor to count the period from a return to worksite to determine whether the work was completed and whether the workmen picked up their tools
                

The present mechanic's lien attaches to the consultations in the fall of 1979 since the lien was filed within 120 days thereafter. To resolve whether Engineer's mechanic's lien attaches to the work previously completed, we must examine the Engineer/Architect contract to identify whether the work fell within the purview of that contract.

Engineer's responsibilities under the contract with Architect were divided into three phases; the design and development phase, construction document phase, and the construction...