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Burns v. A Cash Construction Lien Bond8/24/2000
Submitted on Briefs: February 3, 2000
1 Gordon and Sean Burns (the Burnses) appeal the judgment and order of the First Judicial District Court.
2 We affirm.
3 We restate the issues as follows:
4 . Whether the District Court erred in determining that Gordon and Sean Burns did not have valid construction liens.
5 . Whether Respondent waived the defense of timeliness by failing to assert it as an affirmative defense.
Standard of Review
6 We review findings of fact to determine whether they are clearly erroneous. See Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. We review conclusions of law de novo to determine whether they are correct. See Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.
Factual and Procedural Background
7 In April, 1995 Helena Coach House Partnership (hereafter, the Partnership) entered an agreement to sell Philip Keating (Keating) the King's Carriage Inn, a motel in Helena. The agreement required that Keating invest $70,000 for "building improvements and/or renovations" within one year of the closing and that Keating keep the property free of liens and encumbrances.
8 Keating hired Gordon Burns (Gordon) to renovate the motel's swimming pool.
As that work neared completion, Keating and Gordon orally agreed that Gordon would perform maintenance and repairs and be on call for the motel at all times. Keating gave Gordon a salary and a room at the motel. On December 1, 1995 Gordon was terminated from his employment. Gordon performed no additional repairs or maintenance services for the motel after that date.
9 Keating also reached an oral agreement with Gordon's brother, P. Sean Burns (Sean), to perform heating and air conditioning maintenance and repair services at the motel. Sean's compensation included a salary and the use of a house located on the motel's property. Sean testified that he last performed maintenance services for Keating at some point in December, 1995.
In January, 1996 Keating "left the Helena area, leasing the motel to Steve and Barbara Stolp."
10 On April 1, 1996 Gordon and Sean filed construction liens for $48,539.19 and $7,403.30, respectively. In June of 1996 the Partnership notified Keating that he was in default of their agreement because he had allowed the aforementioned liens to encumber the property and because he had failed to pay property taxes. Keating failed to cure the default. The Partnership repossessed the motel and posted a cash construction lien bond in order to sell a portion of the motel property. In March, 1998 Gordon and Sean filed a complaint against the Partnership, seeking judgment against the bond pursuant to ยง 71-3-553, MCA.
11 A trial to the bench was held in March, 1999. The District Court determined that Gordon's lien was not timely filed and that Sean had not met his burden to prove by a preponderance of the evidence that he had a valid lien. The District Court ruled in favor of the Partnership. From that judgment and order Gordon and Sean appeal.
Discussion
12 . Whether the District Court erred in determining that Gordon and Sean Burns did not have valid construction liens.
13 Section 71-3-535, MCA, provides in pertinent part:
Attachment of lien--filing. (1) A person's lien does not attach and may not be enforced unless, after entering into the contract under which the lien arises, the person has filed a lien not later than 90 days after:
(a) the person's final furnishing of services or material
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