This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Doug Leach, et al.,
Deborah A. Johnson,
Michael T. Barnett,
ABC Seamless, et al.,
Filed April 25, 2000
Aitkin County District Court
File No. C697483
Jeffrey J. Haberkorn, Haberkorn Law Offices, Ltd., 122 Second Street N.W., Aitkin, MN 56431 (for respondents)
Richard A. Ohlsen, Richard A. Ohlsen, Ltd., 419 Laurel Street, P.O. Box 366, Brainerd, MN 56401 (for appellants)
Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellants Deborah A. Johnson and Michael T. Barnett contend that the trial court erred by determining that respondents Doug Leach, d/b/a Isle Building Supply, and ABC Seamless established valid mechanics’ liens against the Johnson real estate, and by awarding attorney fees in the lien foreclosure action. We affirm.
Appellant Deborah A. Johnson owned a parcel of residential real estate in Aitkin County. Appellant Michael T. Barnett resided with Johnson on the property.
Barnett undertook remodeling and construction projects on the premises. He ordered labor and materials from various suppliers, including respondent Doug Leach, d/b/a Isle Building Supply, and ABC Seamless. Isle delivered materials, and ABC delivered materials and supplied labor in the improvement of the real estate. Johnson knew of the materials and labor and of the construction projects. She did not object and did not disavow in any manner her willingness to accept the benefits or costs of the projects.
When Johnson and Barnett failed to pay for the materials and labor, Isle and ABC foreclosed mechanics’ liens they had filed. Neither Isle nor ABC had served a pre-lien notice on Johnson or Barnett.
Prior to the foreclosure trial, Johnson and Barnett were adjudged bankrupt and were relieved of personal liability for any debts owed to Isle and ABC.
In the foreclosure action, Johnson and Barnett disputed the validity of the mechanics’ liens and the value of the lienors’ materials and labor.
The trial court ruled that Isle and ABC had established valid mechanics’ liens in certain amounts. The court also awarded attorney fees to the lienors. Johnson and Barnett appealed.
D E C I S I O N
The scope of review of a case tried to the trial court without a jury is limited to determining whether the court’s findings of fact were clearly erroneous and whether it erred in its legal conclusions. Leininger v. Anderson, 255 N.W.2d 22, 26 (Minn. 1977). On issues of law, this court need not defer to the trial court’s interpretations. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).
Under the mechanic’s lien law, a person who performs labor or supplies materials in the improvement of real estate acquires a lien against the improvement and the land. Minn. Stat. § 514.011 (1998). Any general contractor “who has contracted or will contract with any subcontractors or material suppliers” must give the property owner notice of that fact and of the owner’s right to ensure payment to subcontractors and material suppliers. Minn. Stat. § 514.011, subd. 1. If the general contractor fails to give the notice, he loses his mechanic’s lien rights. Minn. Stat. § 514.011, subd. 1(b). Any subcontractor or material supplier, as a prerequisite to the acquisition of mechanic’s lien rights, must also give a notice to the owner. Minn. Stat. § 514.011, subd. 2. Subcontractors and material suppliers need not give the notice if they enter into a direct contract with the property owner. Id.
Johnson and Barnett argue that Isle and ABC failed to give the required pre‑lien notices and thereby lost their lien rights. The trial court found that Barnett was acting as Johnson’s agent when he contracted with Isle and ABC. The court also found that Johnson knew of the remodeling and building projects and failed to disclaim liability for the cost of the labor and materials.
We first note that there is no evidence that Isle or ABC contracted or intended to contract with subcontractors or material suppliers on this project. Thus, they were not obligated to give the pre-lien notice required of general contractors. Minn. Stat. § 514.011, subd. 1. We next observe that the notice required of subcontractors contemplates a general contractor-subcontractor relationship because it informs the owner: “If we are not paid by your contractor, we can file a claim against your property for the price of our services.” Minn. Stat. § 514.011, subd. 2. This is not the case here. There was no general contractor. At trial, Barnett expressly testified that he was not acting as a general contractor. Thus, the pre‑lien notice required by Minn. Stat. § 514.011, subd. 2, does not apply.
Johnson and Barnett argue that Johnson’s acquiescence in the project or Barnett’s possible agency relationship with Johnson will not relieve Isle and ABC of their pre‑lien notice duties. Not only did the lienors have no pre‑lien notice obligations, but also the law prevents Johnson from disclaiming liability for the lienors’ charges:
When improvements are made by one person upon the land of another, all persons interested therein * * * shall be deemed to have authorized such improvements, in so far as to subject their interests to liens therefor. Any person who has not authorized the same may protect that person’s interest from such liens by serving * * * written notice that the improvement is not being made at that person’s instance, or by posting like notice * * * .
Minn. Stat. § 514.06 (1998). Johnson failed to serve or post such notice. The trial court did not err in concluding that Johnson was not entitled to pre-lien notices from Isle and ABC or in ruling that she failed to protect her interest against liens under Minn. Stat. § 514.06.
Perfection of Liens
A mechanic’s lien “shall attach and take effect from the time the first item of material or labor is furnished upon the premises * * * .” Minn. Stat. § 514.05, subd. 1 (1998). “The lien ceases at the end of 120 days after doing the last of the work, or furnishing the last item of * * * material” unless within that period the lien claimant files a statement of claim for record and serves a copy of the statement “personally or by certified mail on the owner or the owner’s authorized agent or the person who entered into the contract with the contractor.” Minn. Stat. § 514.08, subd. 1 (1998).
Isle’s Lien Claim
The trial court found that Isle filed its statement of claim within 120 days after furnishing the last item of materials. Although the trial court made no specific finding as to service of a copy of the statement on Johnson or Barnett, the court concluded that Isle was entitled to a lien against Johnson’s real estate. Johnson and Barnett contend that there was no showing that Isle’s lien statement had been served personally or by certified mail.
The trial court concluded that Isle’s lien was valid. Implicit in that conclusion is a recognition that Isle made timely service of the statement, for without such service Isle’s lien would not be valid. Isle introduced into evidence its lien statement and an affidavit of service. The affidavit showed that copies of the statement were served by certified mail on December 20, 1996, on Barnett, Johnson, and on Johnson’s contract-for-deed vendors. Service was accomplished within 120 days after the last item of material was supplied. The trial court did not err in concluding that Isle’s mechanic’s lien was valid.
ABC’s Lien Claim
The trial court found that ABC provided labor and materials to the real estate between September 28, 1996, and November 19, 1996, and that ABC attempted to install shutters on December 23, 1996. The court found that ABC filed its lien statement “on March 19, and within 120 days after the furnishing of the last item of labor and materials * * * .” The court then concluded that ABC’s lien was valid.
Johnson and Barnett argue that September 28, 1996, or, alternatively, November 19, 1996, was the last day that ABC furnished labor or materials to the premises, and, thus, the lien statement was not timely filed or served.
The evidence shows that ABC agreed in its contract with Barnett to install shutters on the premises. ABC ordered the shutters on November 19, 1996, and received them on December 18, 1996. During the week before Christmas, 1996, ABC went to the premises and attempted to install the shutters but found that it could not do so because of the weather. The trial court found that ABC attempted to install the shutters on December 23, 1996. Thus, the record shows that as of December 23, 1996, ABC had not yet finished the job described in its contract. Even though ABC’s job had not been completed, the court found, and the evidence shows, that the last day ABC did any work on the premises was December 23, 1996. ABC filed its lien statement and served copies by certified mail on March 19, 1997, within 120 days after the last day of ABC’s work on the premises. The trial court did not err in concluding that ABC’s lien was valid.
The trial court awarded attorney fees to both Isle and ABC. Johnson and Barnett contend that the law does not provide for a mechanic’s lien for attorney fees and that attorney fees incurred after the bankruptcy cannot be awarded.
Minn. Stat. § 514.14 (1998) provides that a party who proves entitlement to a mechanic’s lien shall also receive “costs and disbursements to be fixed by the court * * * .” “This statute has been interpreted to permit the award of reasonable attorneys fees.” Hilltop Constr., Inc. v. Lou Park Apts., 324 N.W.2d 236, 240 (Minn. 1982).
It appears that the bankruptcy stay had been lifted to allow Isle and ABC to proceed with their mechanic’s lien action. But because of the bankruptcy a judgment in the lien foreclosure would affect only the Johnson real estate. The attorney fees in dispute were part of the mechanic’s lien action and were exempted from the bankruptcy stay. Johnson and Barnett have cited no authority to the contrary.