Weyerhaeuser Co. v. Walters
| Decision Date | 15 October 1985 |
| Docket Number | 84-42,Nos. 84-41,s. 84-41 |
| Citation | 707 P.2d 733 |
| Parties | WEYERHAEUSER COMPANY, a corporation, successor to Union Manufacturing and Supply Company, Inc., Appellant (Plaintiff), v. Henry B. WALTERS and Reva B. Walters, husband and wife; Guaranty Federal Savings & Loan Association; Ron Kuhn, d/b/a Ron's Plumbing and Heating; Aspen Electric, Incorporated, a Wyoming corporation; and William C. Burt, Appellees (Defendants). WEYERHAEUSER COMPANY, a corporation, successor to Union Manufacturing and Supply Company, Inc., Appellant (Plaintiff), v. Gordon A. VALASEK and Beverly Marrie Valasek, husband and wife; the Richard Gill Company; MGIC Mortgage Marketing Corporation; M & I Marshall and Ilsley Bank; Ron Kuhn, d/b/a Ron's Plumbing and Heating; Aspen Electric, Inc., a Wyoming Corporation; MacKenzie Cabinet Company of Wyoming, Inc.; and Pozzi Window Company, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Kenneth R. Marken, Casper, for appellant.
Dennis M. Hand and James A. Hardee of Hand, Hand & Hand, P.C., Casper, for appellees Walters, Guar. Federal Sav. & Loan Ass'n, Valaseks, The Richard Gill Co., MGIC Mortg. Marketing Corp., M & I Marshall and Ilsley Bank.
Before THOMAS, C.J., and ROONEY, ROSE, BROWN and CARDINE, JJ.
This appeal raises questions concerning Wyoming's construction lien statutes, §§ 29-1-201 through 29-2-109, W.S.1977 (June 1981 Replacement). The appeal concerns two lawsuits initiated by Union Manufacturing and Supply Company, Inc. (Union), a dissolved subsidiary of appellant Weyerhaeuser Company, to enforce construction liens on certain real property and associated improvements. The district court concluded that our statutes required Union, as a supplier of building materials under a contract with the property owner, to perfect its liens within the 90-day period allotted to materialmen rather than within the 120-day period prescribed for contractors. Since Union had filed its lien statements after the expiration of the filing time for materialmen, the court entered summary judgments against appellant.
We will affirm.
The material facts in this case are undisputed. Before its dissolution in December, 1982, Union was wholly owned by appellant Weyerhaeuser, and authorized to transact business in Wyoming. In each of the two cases involved in this appeal, Union entered into a contract with Baird Homes, Inc. (Baird), the record owner of real property in Natrona County, Wyoming, to furnish lumber and other materials for Baird's construction of a new home on such property. Union acted as a supplier only, installing no materials into the new homes. On October 12, 1982, Union supplied the last materials to one homesite which, that same day, Baird conveyed by warranty deed to appellees Gordon and Beverly Valasek. Union furnished the last materials on October 27, 1982, to the second homesite, and Baird conveyed the property two days later by warranty deed to appellees Henry and Reva Walters.
Baird failed to pay for any of the materials furnished by Union. On December 22, 1982, Union notified Baird, by certified mail, of its intent to file a lien on the Valasek property. Union sent Baird a similar notice with respect to the Walters property on December 30, 1982. No notice of intent to file a lien was given to either the Walters or the Valaseks, the record owners of the properties at the times of notification.
Union filed its lien statement concerning the Walters property with the county clerk on January 27, 1983, 92 days after furnishing the last materials to the property. The lien statement describing the Valasek property was filed February 8, 1983, 119 days after Union supplied the last materials.
Union initiated separate actions to enforce the liens in July, 1983, naming as defendants the Valaseks in one case and the Walters in the other case, their respective mortgagees, and other lien claimants of record. The district court subsequently granted, in each case, Union's motion to substitute as the real plaintiff in interest, appellant Weyerhaeuser Company, the successor corporation to Union.
Appellees, the property owners and mortgagees, moved the district court for summary judgments based on Union's failure to timely file its lien statements and failure to notify the owners of its intent to file liens. Following a hearing, the court found as a matter of law that Union had acted as a materialman in performing its contracts with Baird. The court, therefore, entered summary judgments against appellant on the ground that Union had not filed its lien statements with the county clerk within the 90-day period prescribed for materialmen by statute. Section 29-2-106, infra. Weyerhaeuser's appeals from these judgments have been consolidated to expedite review.
Appellant Weyerhaeuser Company raises a single issue for our consideration:
"Whether, under the present construction lien statutes of Wyoming, W.S. § 29-1-201 (1981) et seq., the Appellant is a 'contractor', entitled to one hundred twenty (120) days in which to file its lien statement, where the Appellant furnished building materials only to certain real property pursuant to a contract with the then owner of such property, who incorporated such materials into permanent changes therein?"
Appellees, the Walters, Valaseks, and mortgagees, restate the issue raised by appellant and present three alternative grounds for affirming the summary judgment:
It is necessary for the disposition of this case to determine whether appellant was a contractor or a materialman. Several sections of our lien law have application. Any person who contributes to the permanent improvement of real property in this state is entitled to a lien upon that improvement and upon the land. 1 To enforce his lien, a claimant must perfect it by timely filing an appropriate statement with the county clerk. 2 Section 29-2-106(a) prescribes a longer filing period for a "contractor" than for "every other person" seeking to perfect a lien:
Section 29-1-201(a) defines "contractor" and related terms:
One who improves real property but does not satisfy the definition of a contractor is a subcontractor or materialman under § 29-1-201(a)(vi):
"(vi) 'Subcontractor' or 'materialman' means a person other than a contractor performing work or furnishing materials to an owner or a contractor under contract * * *."
Appellant contends that a lien claimant who furnishes materials to the owner of the property being improved, pursuant to a contract, is a contractor and entitled to 120 days from the last date of delivery of materials in which to file a lien.
Appellant fashions its own definition of contractor as a "person employed by and contracting with an owner to improve an owner's property, by performing work or furnishing materials." Appellant, in effect, paraphrases the statutory definition of improvement, § 29-1-201(a)(iii)(B), underlined above, and adds it to the statutory definition of contractors. § 29-1-201(a)(i). Appellant's definition is misleading and improper. The fact that "improvement" is defined in the disjunctive, to include "work performed or material furnished" for the improvement of real property, does not relate to or affect the definitions of "contractor," "subcontractor," or "materialman."
The statutory language is plain and unambiguous. A "contractor" is a person "employed by and contracting with" an owner. § 29-1-201(a)(i)(A). A "materialman" is a person "other than a contractor * * * furnishing materials to an owner or contractor under contract." Appellant does not fit the statutory definition of a contractor here in that it was not "employed by" the owner, even if we assume it contracted with the owner.
In American Buildings Company v. Wheelers Stores, Wyo., 585 P.2d 845, 847 (1978), we said:
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