Consolidated Electrical Distributors, Inc. v. Santa Fe Hotel Group, LLC

2006 NMCA 005, 126 P.3d 1145, 138 N.M. 781
CourtNew Mexico Court of Appeals
DecidedNovember 14, 2005
Docket25,192
StatusPublished
Cited by6 cases

This text of 2006 NMCA 005 (Consolidated Electrical Distributors, Inc. v. Santa Fe Hotel Group, LLC) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Consolidated Electrical Distributors, Inc. v. Santa Fe Hotel Group, LLC, 2006 NMCA 005, 126 P.3d 1145, 138 N.M. 781 (N.M. Ct. App. 2005).

Opinion

OPINION

PICKARD, J.

{1} This case raises the issue of the type of evidence required to foreclose on a materialmen’s lien. The landowner contends that our cases require either direct evidence that the materials supplied were actually used in the landowner’s project or evidence of actual delivery of the materials to the landowner’s land, from which an inference of such use may be drawn. In addition, the landowner contends that the evidence concerning the completion of the project was sufficiently ambiguous that the materialman did not prove that the project was substantially completed less than 90 days prior to the filing of the lien, and therefore the lien fails on that ground. We hold that direct evidence is not required, that circumstantial evidence is sufficient, and that substantial evidence supported the trial court’s decision foreclosing the lien, both on the issue of use of the material in the landowner’s project and on the issue of filing the lien within 90 days of the project’s completion.

FACTS AND PROCEEDINGS

{2} Consolidated Electrical Distributors, Inc. (CED), is the materialman in this case. Santa Fe Hotel Group, LLC (Hotel), is the landowner. Vantage Electric Corporation (Vantage) is a contractor that contracted with Hotel to purchase and install lighting in Hotel’s parking lot. Vantage completed the job, and Hotel paid Vantage in full. Vantage, however, did not pay CED, and CED filed a claim of lien against Hotel’s property.

{3} It is undisputed that Vantage ordered lighting fixtures from CED that were to be used in Hotel’s project. The only witness to testify for CED was its outside salesperson, Matthew Gordon. Gordon testified that the fixtures were delivered to Vantage in Albuquerque, and not to Hotel’s location in Santa Fe. However, when it became clear that CED was going to have to file a claim of lien, Gordon went to Santa Fe to ascertain that CED’s fixtures were used in Hotel’s project. Gordon took pictures that were admitted into evidence. When asked whether there was “any doubt in your mind that these are the product that CED provided to the project,” Gordon answered, “No doubt at all.” CED also introduced evidence of the site lighting submittals it prepared to show to the City of Santa Fe for Hotel’s project and purchase orders consistent therewith, all utilizing the same particular type of light fixture.

{4} On cross-examination, Gordon testified that Vantage had other jobs in progress at the same time as Hotel’s job and that Vantage had ordered the same type of light in the past. Gordon also admitted that he did not go to the job site while the lights were being installed and he did not deliver the lights to the job site. The last questions to him on cross-examination established that he took pictures of the lights in Hotel’s parking lot and that the lights “are of the same type that were originally ordered by Vantage.” However, he was not asked whether this observation was the only basis for his testimony on direct examination that there was no doubt in his mind that the lights on Hotel’s property were the same lights provided by CED. There was also no evidence introduced indicating that Vantage ordered the type of lights used in Hotel’s project for other projects that were in progress at the same time as Hotel’s project.

{5} Turning to the date of completion of the project, evidence was presented that the lights were delivered to Vantage on Thursday, April 19, 2001; that on Good Friday, April 20, CED was notified that there was damage to one of the lights; that Vantage was not going to begin the job until the following week; and that the job would take four or more days to complete. The lien was filed on July 25, 2001. The week following April 20 began with Monday, April 23, and if the job took four days, it would have been complete on Thursday, April 26. Ninety days from April 26 expired on July 25.

{6} The trial court found and concluded that the lighting fixtures that CED sold for use in Hotel’s project were in fact used in Hotel’s project and that CED’s claim of lien was timely filed. Judgment was entered in favor of CED, and this appeal follows.

DISCUSSION

Standard of Review

{7} Hotel sets forth the following proper standard of review based on Public Service Co. of New Mexico v. Diamond D Construction Co., 2001-NMCA-082, ¶ 16, 131 N.M. 100, 33 P.3d 651: “When reviewing the sufficiency of the evidence, we view the facts in the light most favorable to the decision below[, and we] resolve all conflicts and, importantly, indulge in all inferences to support that decision.” Lujan ex rel. Lujan v. Casados-Lujan, 2004-NMCA-036, ¶ 15, 135 N.M. 285, 87 P.3d 1067 (citation omitted). Hotel, however, goes on to raise the legal question of whether our eases require direct evidence to support the required elements before a lien may be foreclosed. We review legal questions de novo. Blake v. Pub. Serv. Co. of N.M., 2004-NMCA-002, ¶ 5, 134 N.M. 789, 82 P.3d 960.

Materials Actually Used in Project

{8} Hotel relies on Panhandle Pipe & Steel, Inc. v. Jesko, 80 N.M. 457, 459, 457 P.2d 705, 707 (1969), and Tabet v. Davenport, 57 N.M. 540, 542, 260 P.2d 722, 723-24 (1953), for the proposition that direct evidence is required. In particular, Hotel relies on the following language from Tabet: “one who asserts a lien for materials must not only allege and prove that he sold the materials for use in the particular building, but that they were actually used therein.” Id. In fact, however, these cases and this language stand only for the proposition that to establish a valid lien a lien claimant must provide evidence that the material was actually used in the project. They say nothing about the type of evidence required.

{9} Hotel claims that permitting an inference of actual use from proof that the materials were sold for use in a particular project would effectively eliminate the second part of the Tabet test, requiring that the materials actually be used. Hotel supports its argument with language from Panhandle Pipe & Steel, Inc. and Tabet, distinguishing the rule in California and Colorado, which is to the effect that materials must be actually used in particular premises, from the rule in Minnesota and New York, rejected in New Mexico, which is to the effect that materials need only be delivered to the contractor for use in a particular project even if there is no proof that the same materials are so used. Panhandle Pipe & Steel, Inc., 80 N.M. at 459, 457 P.2d at 707; Tabet, 57 N.M. at 542-43, 260 P.2d at 723-24. The Court in Panhandle Pipe & Steel, Inc. indicated that if it was proved that the materials were actually delivered to the site of the project, then perhaps it could be presumed that the materials were used in the project, but that proof of delivery to the contractor alone was insufficient. 80 N.M. at 459, 457 P.2d at 707.

{10} In this case, however, there was more evidence than simply delivery to the contractor, Vantage.

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Bluebook (online)
2006 NMCA 005, 126 P.3d 1145, 138 N.M. 781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consolidated-electrical-distributors-inc-v-santa-fe-hotel-group-llc-nmctapp-2005.