may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Cameron A. Begbie,
of Cameron A. Begbie Construction,
Robert Lessard, et al.,
Bonnie May Dupre, et al.,
Filed June 22, 1999
Washington County District Court
File No. C897719
Matthew A. Tubridy, 995 Wildwood Road, White Bear Lake, MN 55115 (for respondents Lessard, et al.)
Emmett D. Dowdal, 995 Wildwood Road, White Bear Lake, MN 55115 (for respondents Dupre, et al.)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Huspeni, Judge.
Appellant challenges the trial court's dismissal of his mechanic's lien foreclosure action, contending that the trial court misapplied the law governing pre-lien notice, erroneously determined a party was not a partner in a business, and erroneously determined there were no valid "change orders" to an initial contract. Because the trial court correctly applied the law governing pre-lien notice, and its findings on the remaining contested issues were not clearly erroneous, we affirm.
On August 29, 1996, respondents Bonnie Mae Dupre and Brenda Piccone rented an undeveloped building from respondent Robert Lessard in order to start a business, "Color Me Tan." On August 13, 1996, prior to signing the lease, Dupre had signed a property improvement contract with appellant Cameron Begbie. The contract provided that appellant would make various specified changes in the property so that it could be used for a tanning parlor. In return, he was to receive $75,729.17. The contract contained a clause stating that any additional work "will be approved by owner in writing prior to commencement," and also contained the pre-lien notice clause mandated by Minn. Stat. § 514.011, subd. 1 (1996). On August 13, respondent Lessard also signed a copy of the contract's pre-lien notice clause. Prior to the contract being signed, appellant had begun work at the building. The date on which he began work is disputed, but at the latest it was July 11, 1996.
By September 1996, Dupre had paid $67,550 of the contract price, leaving a balance due of $8,179.17. Claiming the amount due was actually $14,273.48 because of "change orders" modifying the original contract, appellant filed a mechanic's lien on the property on November 5, 1996, and subsequently brought a lien foreclosure action.
Respondents moved for summary judgment, claiming appellant had not complied with mandatory pre-lien notice requirements. The trial court granted this motion and a subsequent bench trial resolved surviving claims. The trial court found that there were no valid change orders modifying the original contract and that because of a $1,200 light fixture allowance, the balance due on the contract was only $6,979.17. The trial court ordered respondent Dupre to pay Begbie the $6,979.17. This appeal followed.
1. Pre-lien Notice
On appeal from summary judgment, this court must determine if any genuine issues of material fact exist and if the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The construction of the mechanic's lien statute is a question of law and thus reviewable de novo. Pella Products, Inc. v. Arvig Tel. Co., 488 N.W.2d 316, 317 (Minn. App. 1992).
Minn. Stat. § 514.011, subd. 1 (1996), provides:
Every person who enters into a contract with the owner for the improvement of real property and who has contracted or will contract with any subcontractors or material suppliers to provide labor, skill or materials for the improvement shall include in any written contract with the owner the notice required in this subdivision and shall provide the owner with a copy of the written contract. If no written contract for the improvement is entered into, the notice must be prepared separately and delivered personally or by certified mail to the owner or the owner's authorized agent within ten days after the work of improvement is agreed upon.
In granting summary judgment for respondents, the trial court held that appellant "failed to provide Defendant Lessard pre-lien notice within the statutorily prescribed ten-day period."
It is undisputed that appellant provided respondents a copy of the lien-notice language on August 13, more than ten days after beginning work. But appellant argues that the trial court should have used the 45-day period applicable to subcontractor notice, not the ten-day limit applicable to contractors. In support of his claim that the 45-day period applies, appellant argues that he was not a contractor because he "was not in direct contractual privity with the landowner." We see no merit in this argument.
First, appellant cites no authority for his proposition that the situation in this case calls for application of the 45-day pre-lien notice, nor has our research revealed any basis in law or in fact. Minn. Stat. § 541.011, subd. 5 (1996) defines an "owner" as, "the owner of any legal or equitable interest in real property * * * ." Under this definition, the signatory to the contract, lessee Dupre, is an owner. Therefore, appellant did have a contract with an owner.
Moreover, appellant was acting as the general contractor on the project, hired subcontractors of his own, and the belated notice language he provided to respondents was that specifically required to be given by contractors. The trial court correctly applied the ten-day time limit.
Appellant next claims that he did not need to give timely notice because there was a written contract, and the notice provision of Minn. Stat. § 514.011, subd. 1, only comes into play if there is no written contract. This argument must fail in light of the purpose behind the statute--protecting unsuspecting property owners from hidden liens. Nasseff v. Schoenecker, 312 Minn. 485, 490-91, 253 N.W.2d 374, 377 (1977). Within ten days after starting the project, appellant had provided neither a written contract nor separate pre-lien notice to either Lessard, Piccone, or Dupre. While separate notice is not necessary if a contract is executed, Minn. Stat. § 514.011, subd. 1, mandates that some document containing the prescribed notice language be provided the owner within ten days after the start of a project.
Appellant also contends that it was not necessary for him to give pre-lien notice because the property owner, Lessard, had knowledge of the improvements. But the case on which appellant relies, Nasseff, 312 Minn. at 485, 253 N.W.2d at 374, does not stand for the proposition that a contractor is always free to disregard the lien-notice statutes as long as the owner has knowledge of the improvements. Nasseff held that a fee owner's knowledge of lessee-initiated improvements, and his failure to object to such improvements, subjects his interest to mechanics' liens if the contractors did not contract with subcontractors or materialmen. Id. at 492, 253 N.W.2d at 378. Here, appellant used the services of both subcontractors and materialmen.
Appellant also argues that the trial court did not view the facts in the light most favorable to him. Appellant claims to have begun work July 11. Appellant does not dispute that he did not send respondents pre-lien notice until August 1. By any measure, there are more than ten days between July 11 and August 1. Although mechanic's lien laws are liberally construed once the lien has attached, they are strictly construed when determining whether a lien attaches. Dolder v. Griffin, 323 N.W.2d 773, 779-80 (Minn. 1982). "[P]re-lien notice is no mere technicality. * * * There must be strict compliance with the pre-lien notice statutory requirements." Merle's Constr. Co. v. Berg, 442 N.W.2d 300, 302 (Minn. 1989). In the present case, even when the facts are viewed in the light most favorable to appellant, it is clear that appellant failed to comply strictly with mandatory pre-lien notice requirements.
2. Piccone's Status
After appellant's case in chief, the trial court dismissed respondent Piccone from the action because there was not sufficient evidence of her involvement in the dispute. The trial court found that Piccone was not a partner or principal in the business and did not contract with appellant.
Trial court findings of fact shall not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01. Appellant alleges the trial court erred by "not reflecting on appropriate evidence" and that "no evidence supported the court's conclusion." We see no merit in appellant's argument. There is ample evidence supporting the court's conclusion. Both Dupre and Piccone testified that Piccone was not a partner and it is undisputed that only Dupre contracted with appellant for the improvements. Fact-finding is clearly within the purview of the trial court and appellant has shown no clear error on the part of the trial court.
3. The Change Orders
Appellant argues that the trial court erred in holding that "[t]here were no written change orders between the parties at any time." Appellant alleges that invoices included in the record are actually change orders approved by Dupre. But the invoices approved by Dupre do not show changes to the original contract or an agreement regarding additional work for additional pay. They merely show the ongoing work done by appellant and periodic payments made by Dupre. The trial court found no evidence of specific change orders, and appellant has failed to show any clear error on the part of the trial court.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 See Minn. Stat. § 514.011, subd. 2 (1996) (providing that subcontractors must give notice not later than 45 days after first furnishing labor, skill or materials).