Ashley Glass Co. v. Hoff

THE PREVIOUS OPINION ISSUED FEBRUARY 19, 1993, IS HEREBY WITHDRAWN AND THIS OPINION IS SUBSTITUTED THEREFOR. McDEVITT, Chief Justice. BACKGROUND The complaint in this action was filed by Ashley Glass Co., Inc. (Ashley Glass), naming as defendants: Larry A. Hoff; Moore Financial Services, Inc.; Walter H. Bithell and Sherry B. Bithell, husband and wife; and the Idaho First National Bank, N.A. Precipitating the action was the unpaid account of Larry Hoff in the sum of $4,629.41, for materials furnished by Ashley Glass and used by the Hoffs in the construction of a residential building. Pri- or to initiating legal action, a notice of claim of lien, duly executed and verified, was filed with the Ada County Recorder’s Office on September 27, 1988, at 1:07 p.m., by Ron Ashley, corporation president of Ashley Glass. Other events later taking place on that same day include the recordation of a warranty deed which involved the identical real property described in the claim of lien notice. This instrument, executed by all of the involved Hoffs, was duly acknowledged and bears the stamped filing date and time of September 27, 1988, at 3:00 p.m. The warranty deed transferred the ownership of the Hoff real property to Walter H. Bithell and Sherry B. Bithell, who were thereafter also named as defendants in the action initiated by Ashley Glass. Almost a month prior thereto, specifically on August 25, 1988, the Bithells had signed an offer to purchase the Hoff property for a stated amount, and the Hoffs agreed to the sale at the price and on the terms stated. Exhibit “C” in the trial record identifies ten claims of lien filed against the Hoff real property. Signed by both of the Bithells and all of the Hoffs, it states the amounts of each of the claimed liens, and that such will be paid at closing and lien releases obtained. There is no issue whatsoever regarding those liens. Dean Hoff’s affidavit states that he obtained knowledge of the Ashley Glass claim of lien only by reason of being so informed by a title company representative in a telephone call to that effect on the morning of September 28, 1988. The affidavit of Sherry B. Bithell contains her statement that neither she nor her husband were served with a copy of the claim of lien within twenty-four hours of its filing, nor thereafter until served with a summons and complaint. DISCUSSION OF RECENT LEGISLATIVE HISTORY RE: STATUTORY LIEN PROCEDURE In 1983, the legislature amended I.C. § 45-507, formerly I.C.A. § 44-507. Before that it was C.S. § 7346, before that it was § 5115, R.C. & C.L., and before that it was § 1899, p. 147, ch. 1, § 6.1 [546] The 1983 amendment added to the statute these two sentences: A true and correct copy of the claim of lien shall be served on the owner or reputed owner of the property either by delivering a copy thereof to the owner or reputed owner personally or by mailing a copy thereof by certified mail to the owner or reputed owner at his last known address. Such delivery or mailing shall be made no later than twenty-four (24) hours following the filing of said claim of lien. (Emphasis added.) The legislature’s amending language raises the issue before us. The defendants contend that the language, “shall be served on the owner or reputed owner” is mandatory, and that the failure to follow the statute as amended invalidates the claim of lien. The trial court in ruling for the defendants concluded that I.C. § 45-407 required “[t]he service of a true and correct copy of a claim of lien must be completed within twenty-four (24) hours of the filing of the lien.” Thus, the trial court ruled that I.C. § 45-407, as amended, unequivocally required of Ashley Glass that it serve a true and correct copy of its claim of lien upon the Hoffs within twenty-four hours of the filing of the lien. The trial court further ruled on Ashley Glass’ contention that it, the non-moving party who was resisting the summary judgment proceeding instituted by defendants, was entitled to the benefit of having substantially complied with the requirements of I.C. § 45-407 as amended in 1983. The court held: The Court finds that Idaho Code Section 45-507 requires every lien claimant to serve a true and correct copy of the claim of lien on the owner or reputed owner by personally delivering a true and correct copy to the owner or reputed owner, or by mailing a true and correct copy of the claim of lien by certified mail to the owner or reputed owner. The service of a true and correct copy of a claim of lien must be completed within twenty-four (24) hours of the filing of the lien. The facts are undisputed in this regard. The Plaintiff did not make service of a true and correct copy of the claim of lien upon the owner or reputed owner by either means. The Plaintiff claims that it orally advised one (R. Dean Hoff) of the four prior owners that a lien had been filed in a conversation initiated by R. Dean Hoff. The Plaintiff further claims it also orally advised a closing agent, Pam Graham, (in the Hoff to Bithell closing) that a lien had been filed. The Plaintiff therefore argues that this oral notification is sufficient notice or that it is substantial compliance with the intent of the statute. However, the statute mandates delivery of a true and correct copy of the claim of lien itself, and thereby precludes oral notice that a lien was filed. The Court finds that the claimed oral advice of lien given to R. Dean Hoff and to Pam Graham was not a sufficient compliance with Idaho Code Section 45-507. THEREFORE, IT IS THE ORDER OF THIS COURT That the claim is invalid under the requirements of Idaho Code Section 45-507 and that the Defendants’ Motion must be granted as a matter of law as to the Plaintiff’s claim against the Defendants Bithell and Idaho First National Bank. (Emphasis added.) The trial court found and the record is clear that there was no issue of fact as to the failure of Ashley Glass (the lien claimant) to serve, within twenty-four (24) hours, a copy of the lien on the “owner or reputed owner” of the real property on which it sought to impose a lien. This Court, in Western Loan & Bldg. Co. v. Gem State Lumber Co., 32 Idaho 497, 501, 185 P. 554, 555 (1919), in interpreting the mechanic’s lien statute held: The limitation prescribed by statute of the time within which an action must be brought in a proper court for the foreclosure of a mechanic’s lien is not the [547] ordinary statute of limitation which is waived if not pleaded. “The time within which a suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all.” (Harrisburg v. Richards, 119 U.S. 199, 7 Sup.Ct. 140, 30 L.Ed. 358. See also, Continental Bank v. Pacific Coast Pipe Co. [222 F. 781 (1915)] supra.) See also Platte v. Pacific Fed. Savs., 62 Idaho 340, 111 P.2d 1093 (1941). The above rationale applies to the condition imposed by the 1983 amendment to I.C. § 45-507. To be effective, a copy of the mechanic’s or materialman’s lien must be served on the “owner or reputed owner” within twenty-four hours of its being filed. This is a statutory condition for an effective lien. The trial court’s decision is affirmed. Costs on appeal to respondent. No attorney fees awarded on appeal. BAKES, C.J., and JOHNSON, JJ„ concur. BOYLE, J., sat, but did not participate in this opinion due to his resignation on March 31, 1992. Footnotes [1] For all of those years, the pre-1983 statute was this: 45-507. Claim of Hen.—Every original contractor, professional engineer or licensed surveyor claiming the benefit of this chapter must, within ninety (90) days, and every other person must, within sixty (60) days, after the completion of any building, improvement or structure, or after the completion of the alteration or repair thereof, or in case he ceases to labor or perform professional services thereon before the completion thereof, then after he so ceases to labor or to perform professional services thereon for any cause, or after he has ceased to furnish materials therefor, or after the performance of any labor or professional services in a mine or mining claim, file for record with the county recorder for the county in which such property or some part thereof is situated, a claim containing a statement of his demand, after deducting all just credits and offsets, with the name of the owner, or reputed owner, if known, and also the name of the person by whom he was employed or to whom he furnished the materials, and also a description of the property to be charged with the lien, sufficient for identification, which claim must be verified by the oath of the claimant, his agent or attorney, to [546] the effect that the affiant believes the same to be just.