White v. Diamond Intern. Corp.

• Decision Date: 09 June 1983
• Docket Number: 5796,Nos. 5795,s. 5795
• Parties: Anne U. WHITE, Appellant (Defendant), v. DIAMOND INTERNATIONAL CORPORATION, Appellee (Plaintiff). Anne U. WHITE, Appellant (Defendant), v. CHEYENNE LUMBER COMPANY, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 463

665 P.2d 463

Anne U. WHITE, Appellant (Defendant), v. DIAMOND INTERNATIONAL CORPORATION, Appellee (Plaintiff).

Anne U. WHITE, Appellant (Defendant), v. CHEYENNE LUMBER COMPANY, Appellee (Plaintiff).

Nos. 5795, 5796.

Supreme Court of Wyoming.

June 9, 1983.

Edwin H. Whitehead of Urbigkit & Whitehead, P.C., Cheyenne, for appellant.

Thomas E. Campbell of Hanes, Gage & Burke, P.C., Cheyenne, for appellee Diamond Intern. Corp.

Arthur Kline of Lathrop & Uchner, P.C., Cheyenne, for appellee Cheyenne Lumber Co.

Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.

ROSE, Justice.

The appellee, Diamond International Corporation, in Case No. 5795 (sometimes referred to as Diamond International) and the appellee, Cheyenne Lumber Company, in Case No. 5796 (sometimes referred to as Cheyenne Lumber) brought separate actions against the appellant to enforce materialman's liens filed by each. The county court judge consolidated the cases for trial and an order was entered awarding the "1. Were not the lien statements recorded by Diamond International Corporation and Cheyenne Lumber Company fatally defective as both lacked verification and did not both lower Courts err in finding such an express statutory requirement could be excepted under W.S. § 29-16 (1957); W.S. § 29-2-101 [sic] ¹ (Republ.1977)?"

appellees judgment for the amounts claimed to be due and owing in the lien statements. The judgment was appealed to the district court and an "Order on Affirmance" was entered on September 3, 1982, from which an appeal was perfected by appellant Anne White to this court. She frames the issues for our review as follows:

We will affirm.

FACTS

The appellant, Anne White, entered into a contractual relationship with Woodroof Construction Company for the purpose of framing a dwelling house on unencumbered property which she owned in Laramie County. Pursuant to this agreement, William P. Woodroof, the chief executive officer of Woodroof Construction Company, opened accounts with both Cheyenne Lumber and Diamond International for building materials to be used in construction. The evidence reflects that both Woodroof and several of his employees signed invoices for materials from both suppliers and that these materials were delivered.

After some delay, appellant's home was finally framed and she paid Woodroof Construction Company according to the terms of the contract. Woodroof failed to pay on either of the accounts opened with the appellees.

On October 10, 1980, appellee Cheyenne Lumber recorded its "Lien Statement" with the Laramie County clerk, claiming a lien against White's residence in the amount of $2,424.70 for materials supplied for construction. A similar filing was accomplished by appellee Diamond International on October 28, 1980. In its "Mechanic's and Materialman's Lien" Diamond International claimed a lien against appellant's property in the amount of $5,845.54 for materials it furnished in the home's construction.

No payments on the claims were remitted and the appellees filed the previously mentioned actions. In response to the complaints, appellant filed a motion to dismiss on the ground that the lien statements had not been properly verified as required by statute. The county court judge ruled that Cheyenne Lumber's statement was properly verified and that Diamond International's lien statement, although only notarized and not verified, was not void because the defect was only of a minor nature.

On appeal to the district court, the appellant again argued that the liens were unenforceable and of no effect because of the lack of statutorily required verifications. In rejecting appellant's contentions, the district judge issued a letter opinion which found as follows:

"With reference to issue No. 1, the Court has considered the citations in the briefs of the parties and it appears that the Wyoming court has not yet passed on this issue. However, the testimony in this case clearly shows that the materials delivered by both appellees were used in the construction of the appellant's home and that the appellant was aware of that fact. In view of the fact there is no real factual issue as to the delivery of the material in this case by each of the appellees, and their use in the appellant's property with her knowledge and consent, the Court believes that the better view is that where a lien statement is notarized but not verified, that the Court should not deny its enforcement, but that equity requires the application of the provisions of Sec. 29-2-114, W.S.1977 Republished Edition, which provides, in material part as follows:

" '... provided, however that in any action begun by any ... materialman ... to enforce a lien under the provisions of this chapter, if the petition shall state and the evidence shall show "The legislature in enacting this statute last quoted made some exceptions to the defects which might be disregarded when it included the following language in that section:

that the work and labor was done and the materials furnished for the use in, upon, and about the property therein described and against which the lien is sought to be enforced, and shall also state and show that the owner or proprietor of said property or his agent, had knowledge of the fact that said work and labor was being done and said materials were being furnished for use in, upon and about said property, then and in that case any and all defects in the statement of said lien account as filed or notice given as provided in this chapter shall be disregarded; ...'

" '... provided, that said lien account as filed states the amount for which, the property against which, and the labor materials for which, a lien is claimed, so as to enable the owner or his agent to identify the same; ...'

"By making this exception (and also a further exception requiring that the notice shall be given and the lien account filed within the time limited), the legislature made it clear that it excepted all other defects than these specifically excepted from that statute (Sec. 29-2-114). Accordingly, the Court feels constrained to hold that the judgment of the county court should be affirmed."

THE VERIFICATION ISSUE

The statutes applicable to the perfection and enforcement of the materialman's liens challenged in this case are those formerly codified as §§ 29-2-101 through 29-2-124, W.S.1977. ² In accordance with these provisions, both Diamond International and Cheyenne Lumber filed lien statements. The contents of such a statement were governed by the provisions of § 29-2-109, W.S.1977, which provided:

"It shall be the duty of every original contractor, within four (4) months, and every subcontractor, and every journeyman and day laborer, and every other person seeking to obtain the benefits of the provisions of this act [§§ 29-2-101 to 29-2-124], within ninety (90) days after the indebtedness shall have accrued, to file in the office of the register of deeds of the proper county, a just and true account of the demand due him, her, or them, after all just credits shall have been given, which is to be a lien upon such building or improvements, and a true description of all the property, or so near as to identify the same, upon which said lien is intended to apply with the name of the owner or owners, contractor or contractors, or both, if known to the person filing the lien, which in all cases shall be verified by the oath of the person filing the lien, or by some reliable person for him; provided, that the original contractor shall not file a lien prior to the expiration of sixty (60) days after the completion of his contract, and no provision contained in any contract made between the owner and the original contractor shall be construed to in any way affect or restrict the right of any subcontractor, journeyman or day laborer, to file his lien in the manner provided by this section."

As can be seen, the legislature specifically provided that "in all cases" the lien statement "shall be verified by the oath of the person filing the lien." (Emphasis added.)

The appellant argues that both the county court and the district court erred in not declaring the liens void because, from her viewpoint, neither Cheyenne Lumber's nor Diamond International's lien statements were properly verified. She argues that the lack of verification is a fatal defect requiring the dismissal of Cheyenne Lumber's and Diamond International's claims.

The appellees in both appeals argue in favor of the results reached by the county and district courts. Appellee Cheyenne Lumber urges that its lien statement was properly verified under § 29-2-109, W.S.1977. Diamond International does not suggest that its lien statement satisfied the verification requirement but it relies on the curative provisions of § 29-2-114, W.S.1977. That last-cited provision reads:

"The pleadings, practice, process and other proceedings in cases arising under this chapter [§§ 29-2-101 to 29-2-124] shall be the same as in ordinary civil actions and civil proceedings in the courts of this state, except as herein otherwise provided. The petition among other things shall allege the facts necessary for securing a lien under this chapter and a description of the property to be charged therewith. Provided, however, that in any action begun by any laborer, materialman, subcontractor or other person, to enforce a lien under the provisions of this chapter, if the petition shall state and the evidence shall show that the work and labor was done and the materials furnished for the use and benefit of the party or parties designated in the petition, and for use in, upon or about the property therein described and against which the lien is sought to be enforced, and shall also state and show that the owner or proprietor of said property or his agent, had knowledge of the fact that said work and labor was being done and said materials were being furnished for use, in, upon and about said property, then and...