NO. 84-259
I N THE SUPREME COURT OF THE STATE OF MONTANA
1984
SIE4KINS-HALLIN LUMBER CO!,IPANY,
P l a i n t i f f and R e s p o n d e n t ,
MARTHA S IblONSON ,
D e f e n d a n t and A p p e l l a n t ,
and
ED BAREFIELD d / b / a BEAR CONSTRUCTION;
EMPIRE FEDERAL SAVINGS & LOAN ASSOC.
O F L I V I N G S T O N ; and !IANHATTAN STATE
BANK, Defendants.
MARTHA SIMONSON ,
Cross-Plaintiff and A p p e l l a n t ,
ED B A R E F I E L D ,
Cross-Defendant and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t e e n t h ~ u d i c i a l i s t r i c t ,
D
I n and f o r t h e C o u n t y of G a l l a t i n ,
T h e H o n o r a b l e F r a n k D a v i s , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For Appellant:
K. A. Bolinger, B o z e m a n , Montana
For R e s p o n d e n t :
Morrow, Sedivy & Bennett, B o z e m a n , Montana
S u b m i t t e d on B r i e f s : S e p t . 2 7 , 1984
D e c i d e d : ilecenber 11, 1 9 8 4
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Martha Simonson appeals from a judgment of the
Eighteenth Judicial District Court, County of Gallatin,
ordering foreclosure of a materialmans' lien against her and
awarding Simkins-Hallin Lumber Company costs and attorney's
fees. We affirm the judgment of the District Court.
The facts of this case are not at issue. The
appellant, Martha. Simonson, entered into an oral agreement
with Ed Rarefield, d/b/a Bear Construction, to build an
addition to her house in Belgrade, Montana. At her
deposition, Simonson asserted that the agreement contemplated
a 528 square foot addition at the contract price of $28 per
square foot, for a total price of $14,784. Barefield
obtained certain materials used in the construction of the
addition at Simkins-Hallin Lumber Co., the plaintiff and
respondent in this case. These materials, valued at $888.36,
were never paid for. Simonson paid Rarefield a total of
$16,300 for his services, the last payment having been made
on September 3, 1982. A.t that time Barefield claimed
Sirnonson still owed him $1,000 under the contract. However,
no further payments were made.
On September 22, 1982, Simkins-Hallin filed a
materialmans' lien with the county clerk and recorder as
required by section 71-3-511, MCA. A certification of notice
of lien to Simonson, as property owner, was attached to the
filed lien, pursuant to section 71-3-513(2), MCA. The
certification specified that a notice of the lien had been
mailed to Simonson on September 23, 1982, one day later than
the filing date of the lien and the certification.
Attempts to settle the matter failed, and on March 30,
1983, Simkins-Hallin filed a complaint seeking enforcement of
the lien as well as costs and attorney fees. Cross motions
for summary judgment were filed, and on November 10, 1983,
the court issued its findings and conclusions wherein
Simkin-Hallin's motion was granted. The court concluded that
a valid mechanics' lien had been established although,
contrary to section 71-3-513 (2), MCA, the notice to Simonson
was mailed one day after the lien was filed. The court a.lso
awarded Simkins-Hallin costs and attorney fees, which were
later set at $872.45. Final judgment against Simonson
ordering foreclosure of the lien and payment of costs and
attorney fees to Simkins-Hallin was entered on March 28,
1984. Simonson appeals from that judgment.
The appellant's principal issue on appeal is whether,
as a matter of law, it was error for the trial court to
uphold the lien filed by respondent despite a discrepancy in
the attached certificate of notice, which reads as follows:
"The undersigned hereby certifies that he
mailed and [sic] true and correct copy of
the Notice of Claim of Lien upon the
claimant therein named at the address of:
Martha Simonson
107 Madison
Belgrade, Montana 59714
by mailing the sane in an envelope with
postage prepaid on the 23rd day of
September, 1982. "
The lien and certificate were filed on September 22, 1982.
It is therefore manifest that despite the use of the past
tense in the language employed on the certificate, the notice
of lien was not mailed until one day after the lien itself
was filed by the clerk.
Appellant argues that under section 71-3-513(2), MCA,
the lien should not have been filed by the clerk because the
mailing date specified on the certificate of notice was one
da.y later than the filing date of the lien. In pertinent
part, section 71-3-513(2), MCA provides as follows:
"The clerk shall not file the lien unless
there is attached thereto a certification
by the lien claimant or his agent that a
copy of the lien has been served upon
each owner of record of the property
named in the lien."
Section 71-3-513(2) was added to the mechanics' lien
statutes by legislative amendment in 1981, and has not been
interpreted by this Court. However, we agree with appellant
that the rule in Montana regarding the interpretation of the
lien statutes has been that:
" [TIhe requirements of the mechanics '
lien statutes as to procedure will be
strictly enforced. Once the procedure
has been fulfilled, the statutes will be
liberally construed so as to give effect
to their remedial character. " General
Electric Supply Co. v. Bennett (Mont .
1981), 626 P.2d 844, 846, 38 St.Rep. 553,
555-556.
In this case it is uncontested that, except for the
fact that the notice to the a-ppellant was mailed one day
late, the respondent lumber company diligently followed the
procedural requirements necessary to perfect a mechanics'
lien under Montana statute. The question to be addressed is
whether a minor technical violation of section 71-3-513 ( 2 ) ,
MCA, must void an otherwise meritorious and valid lien.
In this regard, it is instructive to review holdings
from other jurisdictions faced with similar problems in
interpreting their notice of lien statutes.
In Las Vegas Plywood v. D & D Enterprises (Nev. 1982) ,
649 P.2d 1367, the Nevada Supreme Court refused to void a
mechanics' lien when the lienor failed to post a notice of
the lien as required by statute. Although Nevada had
previousby recognized a "strict compliance" rule regarding
its mechanics' lien statutes, Fisher Brothers, Inc. v. Harrah
Realty Co., (Nev. 1976), 545 P.2d 203, the court found that
substantial compliance with the requirements of the notice of
lien statute would suffice where the property owner received
actual notice and was not prejudiced by the failure to
strictly comply with the statute. - Vegas Plywood, 649
Las
P.2d at 1368.
And in Peterman-Donnelly Engineers and Contractors
Corp. v. First National Bank (Ariz.App. 1965), 408 P.2d 841,
a lienor failed to attach a copy of a written contract
between itself and the property owner to its notice of lien,
contrary to Arizona statute. However, the principal terms of
the contract were recited in the notice. Additionally, the
lienor served a copy of the lien on the agent of the owner,
rather than on the owner himself as the notice statute
required. The court ruled that "substantial compliance not
inconsistent with the legislative purpose" was sufficient
where the material terms of the contract were recited in the
notice, and actual notice was received without any prejudice
to the interest of the owner. Peterman-Donnelly, 408 P.2d at
843-44. We note that prior to Peterman-Donnelly, Arizona,
too, had required strict accordance with the mechanics' lien
statute in order to perfect a lien. Irwin v. Murphey (Ariz.
1956), 302 P.2d 534, 538.
In Oregon, a notice of lien was found to be sufficient,
and the lien upheld, where the notice was not sent by
registered or certified mail as required by statute. Laro
Lumber Company, Inc. v. Patrick (0r.App. 1981), 630 P.2d 400.
The Oregon court stated that:
"The obvious purpose of the requirement
that notice of an intent to foreclose a
lien must be given to the property owner
is to give the owner an opportunity,
prior to the commencement of the suit, to
pay the lien and to prevent liability for
costs and disbursements including
attorney's fees.
"Here the purpose was served. Defendant
had actual notice that a lien had been
filed and had an opportunity to challenge
it or pay the lien and prevent liability
for costs and attorney fees recoverable
under O.R.S. 87.060." Laro Lumber Co.,
630 P.2d at 403.
The court concluded that there had been substantial
compliance with the statutory notice requirements, Laro, 630
P.2d at 403, although Oregon had formerly observed the rule
that the mechanics' lien statutes must be strictly followed
regarding their procedural requirements. Anderson v.
Chambliss (Or. 1953), 262 P.2d 298, 300.
In addition we note that New Mexico, GarrettBuilding
Centers, Inc. v. Hale (N.M. 1981), 623 P.2d 570, 573-74, and
Illinois, Lundy v. Boyle Industries, Inc. (Ill.~pp. 1977),
361 N.E.2d 321, 323, have also upheld mechanics' liens
despite minor technical violations of the procedural
requirements of the lien statutes. See also Layrite Products
Company v. Lux (Idaho 1964), 388 P.2d 105, 108-109; Jack Endo
~lectric,Inc. v. Lear Siegler, Inc. (Hawaii 1978) , 585 ~ . 2 d
The common thread running through all of these
decisions is that an otherwise valid mechanics' lien should.
not be defeated where the lienor has substantially complied
with statutory procedural requirements, where notice was
actually given, and where no prejudice to the property owner
has arisen due to the lienor's technical error.
In the case now before us, the appellant a.dm.itsthat
she received actual notice in due course. The record
indicates that appellant had six months between the date of
actual notice and the date when the complaint was filed on
the lien to settle or pay the lien and thereby avoid payment
of costs and attorney fees. And it is clear that the late
filing of the notice did not cause the a.ppellant to pay the
same bill twice, because she had already made her last
payment to the contractor on September 3, 1982, nineteen days
before the lien was filed. Because the appellant received
actual notice and was not prejudiced in any manner by the
respondent's technical error, and because the respondent
lumber company substantially complied with the procedural
requirements of section 71-3-513(2), MCA, we conclude that
the trial court correctly sustained the respondent's lien.
The appellant also maintains that she should not be
required to pay attorney fees to respondent as ordered by the
District Court. This argument is apparently based on the
fact that appellant attempted in good faith to settle the
cla.im of lien prior to the court's ruling on the motion for
summary judgment.
Section 71-3-124, MCA provides as follows:
"In an action to foreclose any of the
liens provided for by parts 3, 4, 5, 6,
8, or 10 of this chapter, the court must
allow as costs the money paid for filing
and recording the lien and a reasonable
attorney's fee in the district and.
supreme courts, and such costs and
attorneys' fees must be allowed to each
claimant whose lien is established, and
such reasonable attorneys' fees must be
allowed to the defendant against whose
property a lien is claimed, if such lien
be not established."
Here, the claimant has established a lien, and by statute the
District Court was required to allow reasonable attorney
fees. Upon review, we are limited to determining whether the
trial court's award of attorney fees constituted a clear
abuse of discretion. Luebben v. Pletlen (1940), 110 Mont.
350, 355, 100 P.2d 935, 937. In its order fixing attorney
fees at $800, the District Court substantially reduced
plaintiff-respondent's claimed attorney fees of $2,648.75.
Under the circumstances, we find no abuse of discretion
regarding the amount of attorney fees awarded.
Upon appeal, however, respondent has requested further
attorney fees of $1,285 citing section 71-3-124, MCA, quoted
above. We are reluctant to grant additional attorney fees in
a case where the amount in controversy totalled only $888,
and where the trial judge, having considered. the evidence,
has already reduced the respondent's claimed fees by over
$1,800. However, the language of section 71-3-124, MCA is
mandatory, and for that reason this matter is remanded to the
District Court for further proceedings to establish
respondent's reasonable attorney fees incurred in defending
this appeal.
The judgment of the District Court is affirmed, and the
matter is remanded for further proceedings regarding
We concur: 4
Justice
Chief Jusvife
4