Fowler & Peth, Inc. v. Regan

151 P.3d 1281, 2007 WL 315115

• Court: Supreme Court of Colorado
• Decided: February 26, 2007
• Docket: 06SA286
• Status: Published

Opinions

Justice MARTINEZ

delivered the Opinion of the Court.

We agreed to answer a certified question from the Tenth Circuit Court of Appeals determining whether a claimant must have a properly perfected lien or still be able to file such a lien under the time limitations provided by the Colorado mechanics’ lien statutes, sections 38-22-109 and 110, to seek access to moneys held in trust under section 38-22-127 of the Colorado Revised Statutes. We hold that the procedural requirements for perfecting a lien contained in sections 38-22-109 and 110 do not apply to claims against money held in trust under section 38-22-127.

The General Mechanics’ Lien laws¹ provide three methods to protect persons who add value to property. One method of statutory protection is to allow claims against a trust fund, held by contractors, for the benefit of subcontractors, laborers, or material suppliers under the Trust Fund Statute.² Another method created by the General Assembly to ensure payment to contractors, laborers, or material suppliers is through the process of attaching and perfecting a lien against the property they have improved. Finally, the General Assembly created a process through which a contractor can post a bond against which claims can be made.

These three separate methods achieve one overall purpose; they ensure that laborers and material suppliers are paid for the value they add to property. We therefore construe the plain meaning of the Trust Fund Statute in a manner consistent with the statutory scheme of the General Mechanics’ Lien laws. We conclude that the Trust Fund Statute protects subcontractors, laborers, and material suppliers who add value to property but are unable to recover monies owed to them through the lien claim process.

I. Facts and Procedural History

According to the findings of the Bankruptcy Court and the District Court, Jeffrey and Kerrie Regan were the sole owners and principals of Eagle Roofing Systems, Inc. (“Eagle”). Eagle installed and repaired roofs for several home developers in the Denver metro area. Fowler & Peth, Inc. (“Fowler”) supplied roofing materials to Eagle according to the terms of a credit agreement between the parties. Fowler’s materials were incorporated into various separate properties (at issue in the bankruptcy proceeding), giving Fowler the potential right to file mechanics’ liens against those properties. Fowler chose not to file any liens, though it was not fully paid by Eagle for those materials. Eagle, however, was fully paid by the owner or builder of each of the properties.

During its relationship with Fowler, Eagle began to experience financial difficulties. To improve cash flow, rather than pay Fowler’s invoices with the money received from each project, Eagle began to pay their oldest invoices first. In addition, Eagle did not maintain separate records of account for each project. Finally, the Regans, as sole owners and principals, caused Eagle to pay some of their own personal expenses from monies received by Eagle in payment for completed roofing projects. As a result, Eagle was fully compensated for all the construction projects it worked on, but Fowler was not. The Regans then filed for Chapter 7 bankruptcy relief in the United States Bankruptcy Court for the District of Colorado. As of the date of the bankruptcy petition, the Re-gans owed Fowler $48,185.03.

The bankruptcy court judge held that the debt owed to Fowler was nondischargeable because the Regans failed to hold project funds in trust under Colorado’s Mechanics’ Lien Trust Fund Statute. In re Regan, 311 B.R. 271 (Bankr.D.Colo.2004). On appeal, the United States District Court for the District of Colorado reversed, ruling that, because Fowler had not actually filed or perfected any liens against each of the various properties in which its materials were incorporated by Eagle, it was not entitled to the protection of the Trust Fund Statute. In re Regan, 326 B.R. 175, 178-79 (D.Colo.2005). The District Court, relying principally on an Oklahoma case, held that in order to invoke the protection of the Trust Fund Statute, a material supplier must have a perfected lien, or presently be able to perfect a lien. Id. Because the time limitations placed by Colorado law on hen claims had expired, Fowler had no present ability to perfect liens against the properties where its materials had been used, and for which it had not been fully compensated. Fowler appealed to the Tenth Circuit Court of Appeals and this certified question followed.

II. Analysis

We look to the plain language of a statute to effectuate the chosen statutory scheme as intended by the General Assembly. Denver Pub. Co. v. Bd. of County Comm’rs of County of Arapahoe, 121 P.3d 190, 195 (Colo.2005) (citing Sooper Credit Union v. Sholar Group Architects, P.C., 113 P.3d 768, 771 (Colo.2005)). The intent of the General Assembly, as expressed in the language of the statute, is effectuated by considering the statutory scheme as a whole and giving a consistent, harmonious, and sensible effect to each individual section. See Zab, Inc. v. Berenergy Corp., 136 P.3d 252, 255 (Colo.2006) (citing Chames v. Boom, 766 P.2d 665, 667 (Colo.1988)). When determining the intent of a statute, we must presume that “[a] just and reasonable result is intended.” § 2-4-201(l)(c), C.R.S. (2006). Finally, “[w]ords and phrases that have acquired a technical or particular meaning ... shall be construed accordingly.” § 2-4-101, C.R.S. (2006). Thus, the placement of the Trust Fund Statute within the framework of the General Mechanics’ Lien laws plays an important role in our determination that the lien claim procedures should not be imported into trust fund claims.

The Trust Fund Statute, by its plain language, offers a separate method of protection from contractors who are paid by homeowners, but do not fully compensate their creditor subcontractors, laborers, and material suppliers. However, if lien claim procedures were imported into trust fund claims, homeowners would face a flurry of liens encumbering their property from subcontractors, laborers, and material suppliers waiting to be paid by principal contractors. Importantly, those same subcontractors, laborers, and material suppliers would, under certain common circumstances, be left without any remedy under the mechanics’ lien laws to recover the value they have added to property.³ Finally, the Regans, as well as many other contractors, would be unjustly enriched by their own malfeasance. We therefore conclude that the plain language of the Trust Fund Statute and the General Mechanics’ Lien statutory scheme prevent lien claim procedures from being imported into trust fund claims.

In reaching our conclusion, we first examine the General Mechanics’ Lien laws. Next, we examine the Trust Fund Statute in particular. Third, we explain how our holding is consistent with the entire statutory scheme. Finally, we will briefly address the Oklahoma case law on which the District Court based its decision. This examination reveals that, in order to give effect to the language and intent of the General Mechanics’ Lien laws, trust fund claims must be separate from, though related to, lien claims.

A. The General Mechanics’ Lien Laws

A mechanics’ lien is a statutorily-created right to file a claim against property, available to a broad category of persons who furnish labor or materials adding value to that property. § 38-22-101(1), C.R.S. (2006). Section 38-22-101 is titled in part: “hens in favor of whom.” It states that liens are created only in favor of those persons who furnish supplies or labor for value to property:

[E]very person who furnishes or supplies laborers ... materialmen, contractors, subcontractors, builders ... shall have a lien upon the property upon which they have furnished laborers or supplied machinery, tools, or equipment or rendered service ... for the value of such laborers, machinery, tools, or equipment supplied

§ 38-22-101(1) (emphasis added).

The General Assembly has, by this language, defined a lien and identified who may have a lien. A hen is a security interest in property; those who have a lien are laborers and material suppliers who have added value to that property. See Barnard v. McKenzie, 4 Colo. 251, 253 (1878) (stating that “[t]he leading idea [of Colorado’s mechanics’ lien laws is] to secure the mechanic and materialmen upon values they have directly contributed to create”). Furthermore, a lien is created at the commencement of the work, not at the time of enforcement of the lien. See § 38-22-106, C.R.S. (2006) (requiring that all liens relate back to the time of the commencement of the work); Sontag v. Abbott, 140 Colo. 351, 358, 344 P.2d 961, 964 (1959) (liens begin at the commencement of the work); cf. 1C Cathy Stricklin Rrendl & James R. Krendl, Colo. Prac. Series, Methods of Practice § 48.6 (5th ed.2006) (noting that to preserve a hen, a claimant must file notice and then perfect the lien).

A lien created at the commencement of work preexists the claim that is made to enforce the lien. See § 38-22-105.5(2), C.R.S. (2006) (including the words on the notice form to property owners “[pursuant to lien law] you [may] have an affirmative defense in any action to enforce a lien ”) (emphasis added). For this reason, the mechanics’ lien statutes use the word “lien” to describe something different from claims to enforce the lien. For instance, section 38-22-101(5) talks about “claimants who establish the right to a lien or claim under any of the provisions of this article.” § 38-22-101(5), C.R.S. (2006) (emphasis added). Another example illustrates this point further: section 38-22-103(4) describes what a laborer or material supplier may “file with his or her lien claim.” § 38-22-103(4), C.R.S. (2006) (emphasis added). Here the statute qualifies the word “lien” with “claim” to describe the distinct status of the lien (i.e., it has now been claimed and filed). In this way, the General Assembly meant for a “lien” to be defined by section 38-22-101, and for the remaining provisions to describe the process of enforcing the lien. Once a lien has been created, the claim is an equitable enforcement action to enforce the lien.

We have long construed our mechanics’ lien laws liberally, according to equitable principles. Compass Bank v. Brickman Group, Ltd., 107 P.3d 955, 958 (Colo.2005) (citing Buerger Inv. Co. v. B.F. Salzer Lumber Co., 77 Colo. 401, 406-07, 237 P. 162, 164-65 (1925) and Darien v. Hudson, 134 Colo. 213, 302 P.2d 519 (1956)). The mechanics’ lien laws are liberally construed because they were designed to prevent the unjust enrichment of property owners. Compass Bank, 107 P.3d at 958. Consistent with these equitable principles and the General Assembly’s purpose, we avoid needless and inequitable losses of a mechanic’s or material supplier’s security interest. Id.

The General Mechanics’ Lien statutes created the hen claim process over one hundred years ago. See Williams v. Uncompahgre Canal Co., 13 Colo. 469, 22 P. 806 (1889). In 1975, two additional claims were created to protect subcontractors, laborers, or material suppliers: (1) claims may be made against a trust fund created by section 38-22-127, C.R.S. (2006)⁴ — the Trust Fund Statute; and (2) a contractor can post a bond and a subcontractor, laborer, or material supplier can either claim against the lien or the bond pursuant to section 38-22-129(2), C.R.S. (2006). 1975 Colo. Sess. Laws 1420,1420-26.

All three alternatives allow subcontractors, laborers, or material suppliers to satisfy legitimate claims for compensation and are merely separate methods for satisfying those claims. First Commercial Corp. v. First Nat’l Bancorp., 572 F.Supp. 1430, 1434 (D.Colo.1983); Lafarge West, Inc. v. Riley (In re Riley), No. 02-29529, 2004 WL 2300460, at *11 (Bankr.D.Colo.2004); Michael E. Romero, The Mechanics’ Lien Trust Fund Statute: An Underused Tool in Civil Litigation and Bankruptcy Cases, 31 Colo. Law. 55, 57 (2002). Unlike lien claims, which are asserted against property, these newer trust fund and bond claims are made against contractors. In this way, the mechanics’ lien laws form three separate methods for achieving one overall purpose: ensuring that laborers and material suppliers are paid for their contributions to the improvement of property-

B. Trust Fund Statute

We turn now to the language of the Trust Fund Statute. The Trust Fund Statute contains five subsections, each addressing different aspects and obligations of claimants and contractors. At issue before us today is subsection one.⁵ Subsection one defines who is entitled to the protection of the statute. Trust fund claims, according to the plain language of the statute, can be made by two groups: subcontractors, laborers, or material suppliers who either (1) have a lien or may have a lien against property or (2) claim or may claim against a principal or surety. § 38-22-127(1).

The similarity of the language used in the Trust Fund Statute in subsection one and the language in section 38-22-101(1) indicates that the General Assembly meant for these two sections to be read together. In other words, those who have a “lien” under section 38-22-127(1) are defined by section 38-22-101(1): an interest laborers and material suppliers have in a property to which they added value at the request of the owner or the owner’s agent, such as the contractor. This is distinct from those who have a “perfected lien” as defined by sections 38-22-109 and 110: those who have met the timing requirements necessary to enforce a lien.

By its plain language, the Trust Fund Statute allows subcontractors, laborers, and material suppliers to assert claims directly against contractors if they have a “lien” (i.e., added value to a property). In contrast, a “perfected lien” (a lien secured by following lien claim procedures) secures payment to subcontractors only indirectly, by encumbering the property and forcing the property owner to either pressure the contractor to pay the subcontractor, or make a double payment to the lien holder. The Trust Fund Statute is in this way both related to and separate from the lien claim statutes.

Trust fund claims are separate from lien claims in part because of the different rights that property owners have under each procedure. A property owner cannot file a lien claim against his or her own property. Damrell v. Creagar, 42 Colo.App. 281, 599 P.2d 262 (1979). However, property owners are direct beneficiaries of the Trust Fund Statute to prevent the possibility of having to make double payments. In re Walker, 325 B.R. 598, 602 (D.Colo.2005). When an owner pays a contractor and then a subcontractor places a lien on the owner’s property, the owner is faced with the possibility of having to also pay the subcontractor to clear the lien cloud from the property. Id.

In contrast, the Trust Fund Statute assures property owners that they will not have to pay a second time to satisfy the subcontractor. In fact, the primary concern of the legislature, at the time the Trust Fund Statute was passed, was the protection of property owners against unscrupulous contractors. Transcript of Audio Tape: Hearing on H.B. 1510 Before the H. Bus. Affairs Comm., 1975 Leg., 50th Gen. Assem., 1st Reg. Sess. (Colo. Apr. 910,1975) (on file with Colorado State Archives). As beneficiaries, property owners are able to enforce the Trust Fund Statute against a contractor separate from the lien claim laws. Id.; see People v. Collie, 682 P.2d 1208, 1210 (Colo.App.1983) (noting that the purpose of the Trust Fund Statute “is to protect home-otvners, laborers, and materialmen from dishonest or profligate contractors ”) (emphasis added); First Commercial Corp., 572 F.Supp. at 1434 (noting that the statute creates a separate form of protection because any other interpretation would render either lien claims or trust fund claims superfluous).

To further understand why lien claim procedures are not part of trust fund claims, we look to the third alternative provided by the mechanics’ hen laws — -bond claims. The General Assembly wrote the bond claim statutes at the same time as the Trust Fund Statute. 1975 Colo. Sess. Laws 1420, 1420-26. However, the General Assembly specifically imported the lien claim procedure into the bond claim procedure. Section 38-22-133 specifically says that the statute of limitations applicable to lien foreclosures shall apply to bond claims:

When a bond or undertaking is filed ... the person filing the original mechanic’s [sic] lien may bring an action upon the said bond or undertaking. Such action shall be commenced within the time allowed for the commencement of an action upon foreclosure of the lien, and the statute of limitations applicable to a lien foreclosure shall apply to the action upon the bond or undertaking as it would had no bond or undertaking been filed.

§ 38-22-133, C.R.S. (2006) (emphasis added). If the General Assembly wanted lien claim procedures to apply to trust fund claims, it could have included lien claim procedures in the Trust Fund Statute at the same time, and in the same manner, as the bond claim statute. It did not. We cannot read the Trust Fund Statute to include hen claim procedures where no language supporting such a conclusion can be found. See People v. Cross, 127 P.3d 71, 73 (Colo.2006) (noting that it is improper for this Court to add language to a statute in contravention of legislative intent).

Although the Trust Fund Statute could be read narrowly, as the district court did, such a reading cannot be reconciled with the General Assembly’s intent to protect subcontractors, laborers, material suppliers, and homeowners from unscrupulous contractors. Further, the technical phrase “have a lien or may have a hen” must be read according to the technical meaning given by the mechanics’ lien laws. § 2-4-101. A “hen” is defined by the General Assembly in section 38-22-101(1): a claim on property by a person who has added value to that property. Therefore, a trust fund claim may be made by a person who has added value to a property or may have added value to a property, as limited by section 38-22-101(1). A subcontractor, laborer, or material supplier’s ability to make a claim under the Trust Fund Statute is thus no more or less broad than the ability to claim a hen at the time that the hen arises — when labor or materials are supplied. In this way, the Trust Fund Statute works harmoniously with the entire statutory scheme governing the General Mechanics’ Lien laws.

C. Harmonious Reading of the Statute

Our holding here ensures that the Trust Fund Statute is both internally consistent and consistent with the General Mechanics’ Lien laws. Contrary to the Regan’s arguments to the Tenth Circuit, the Trust Fund Statute, because it is separate from hen claims, does not thereby keep hen claims alive for an indefinite period. For example, the agreement between the contractor and the subcontractor, laborer, or material supplier controls the timelines for the disbursement of funds. See Chicago Lumber Co. v. Newcomb, 19 Colo.App. 265, 275, 74 P. 786, 789 (1903) (holding that the contract controls the payment burdens imposed). Although the time limitations on the perfection of a hen, set forth in sections 38-22-109 and 110, C.R.S. (2006), do not apply to the Trust Fund Statute, trust fund claims are nonetheless limited by the applicable statute of limitations just as hen claims are limited by sections 38-22-109 and 110.⁶

Treating trust fund claims separate from lien claims results in a harmonious reading of the statutes when both lien and trust fund claims are pursued. For example, a subcontractor who pursues a lien claim is not foreclosed or discouraged from also pursuing trust funds. Though a supplier who has foreclosed on a perfected lien and obtained a judgment may no longer have a lien, they nonetheless qualify for protection under the Trust Fund Statute. Because subsection one lists among those persons entitled to the statute’s protection those who “claim or may claim, against a principal and surety,” a person with a judgment on a foreclosed lien has “a claim.” ⁷ § 38-22-127(1). Thus, that person is in the same position as a person who has a “lien or may have a lien” and entitled to the same protection.

D. Case Law

The District Court relied on In re Tefertiller, 772 P.2d 396, 398 (Okla.1989), an Oklahoma case interpreting Oklahoma’s trust fund statute, in support of its conclusion that under Colorado’s statute, only a perfected lien entitles a subcontractor to assert claims against trust funds. In re Regan, 326 B.R. at 178-79. In In re Tefertiller, a federal Oklahoma bankruptcy court sent a certified question to the Oklahoma Supreme Court asking it to interpret the meaning of “liena-ble claims” in Oklahoma’s trust fund statute, also located within its general mechanics’ lien laws. 772 P.2d at 398. The Oklahoma Supreme Court determined that “lienable claims” meant that a lien must be perfected before a claimant could access trust funds. Id. at 399.

The differences between Colorado’s and Oklahoma’s statutes are significant. Most importantly, unlike the Colorado statute, Oklahoma specifically requires a “lienable claim.” Okla. Stat. tit. 42, § 153 (1989) (emphasis added). Colorado’s statute does not require a “lien claim,” only a “lien” (against property) or a “claim” (against a principle). See § 38-22-127(1). Second, as the Tefertil-ler court noted, the Oklahoma statute specifically references lien claims and procedures; the Colorado Trust Fund Statute does not. Tefertiller, 772 P.2d at 398-99; § 38-22-127, C.R.S. (2006). Finally, Oklahoma used limiting language by qualifying the word “lien” in two ways: a trust fund claimant must have a lien that is lienable and it must be a claim. By contrast, Colorado uses broadening language: a trust fund claimant can have a lien “or may have a lien.” § 38-22-127(1) (emphasis added). Colorado broadens the category of qualified trust fund claimants even further by also allowing those with claims. Id. These differences in plain language outweigh any similarity that both trust fund statutes have by them placement within the general lien laws.

Further, as the subsequent history of that case reveals, federal Oklahoma bankruptcy courts have limited Tefertiller in the bankruptcy context to hold that the fiduciary duty of a trustee-contractor is not eliminated by the failure of the beneficiary-subcontractor to perfect a lien. See In re Manley, 135 B.R. 137, 141 (Bankr.N.D.Okla.1992) (citing In Re Turner, 134 B.R. 646, 656-57 (Bankr.N.D.Okla.1991)) (noting that “[w]hether the liens ultimately proved enforceable or not is beside the point: trust funds were still received, they were still misapplied, and such misapplication still caused damage”).

The Oklahoma bankruptcy courts have separated a contractor’s fiduciary duty from a subcontractor’s lien claim. The court in In re Turner held that even when a lien creditor fails to perfect a lien, the contractor-trustee may not breach his own fiduciary duty to hold trust funds so that no liens need be created at all. 134 B.R. at 656-57. The Turner court noted that a trustee’s duty exists from the moment the contractor receives funds. Id. Thus, the court concluded, if the creditor’s lien claims fail, pursuit of a lien remedy need not take away the creditor’s alternative trust fund remedy. Id.; see Tefertiller, 772 P.2d at 398-99 (noting a statutory provision that specifically allows for trust fund claims to be pursued separately from lien claims). Thus, in a bankruptcy context, the Oklahoma statute permits claims against the trust fund even though a lien was not perfected.

III. Conclusion

Because the plain language of the Trust Fund Statute and we are unwilling to import such a requirement, we answer the Tenth Circuit’s question in the negative: a trust fund claimant is not required to have a properly perfected lien, or still be able to perfect a lien to seek access to money held in trust under section 38-22-127.

Justice RICE dissents, and Justice COATS and Justice EID join in the dissent.

1 . Located at sections 38-22-101 to -133, C.R.S. (2006), the most current version is cited here, though the laws have evolved throughout their existence, spanning over one hundred years.

2 . § 38-22-127, C.R.S. (2006).

3 . For example, full payment by a homeowner is a complete affirmative defense to a lien. § 38-22-102(3.5), C.R.S. (2006). Also, appellants assert, and appellees do not dispute, that it is common practice for subcontractors to waive their right to a lien in order to obtain business from contractors who do not want their customers to face liens on their property.

4 . The General Mechanics' Lien statutes, including both section 38-22-101(1) and the Trust Fund Statute, were amended in 2000 to add the word "laborer.” 2000 Colo. Sess. Laws 204, 211.

5 . "All funds disbursed to any contractor or subcontractor ... shall be held in trust for the payment of the subcontractors, laborer or material suppliers, or laborers who have furnished laborers, materials, services, or labor, who have a lien, or may have a lien, against the property, or who claim, or may claim, against a principal and surety under the provisions of this article and for which such disbursement was made.” § 38-22-127(1).

6 . Trust fund claims have a definite time limit, though this certified question does not require us to decide which limits apply. We note, however, that the revised statutes provide a statutory limitation of three years for claims related to contracts, breach of trust, or breach of fiduciary duty. See § 13-80-101, C.R.S. (2006) (limiting certain civil actions, regardless of the theory upon which the suit is brought, to three years; subsection(a) covers contract actions, subsection (f) covers breach of trust or breach of fiduciary duty). Trust fund claims are also subject to statutory accrual limitations as well as common law tolling doctrines. See § 13-80-108(4), C.R.S. (2006) (stating that a cause of action for a debt or obligation accrues on the date the debt is due; see annotations to § 13-80-108(4) for tolling doctrines); § 13-80-108(6), C.R.S. (2006) (stating that a cause of action for breach of contract accrues on the date the breach is discovered or should have been discovered; see annotations to § 13-80-108(6) for tolling doctrines). Furthermore, there is a general six year statute of limitations on actions to recover debt or to enforce the rights set forth in any instrument securing the payment of any debt. § 13-80-103.5(l)(a), C.R.S. (2006).

7 . Where a subcontractor brings an in personam action against a general contractor and an in rem action against the homeowner under both the lien claim and trust fund claim statutes, the normal rules of claim preclusion would apply to prevent a double payment from the general contractor or the property owner to the claimant. Furthermore, the mechanics' lien laws are construed according to equitable principles for the purpose of avoiding unjust enrichment; those same principles would apply to prevent unjust enrichment of a claimant. See Compass Bank, 107 P.3d at 958, supra; Marean v. Stanley, 5 Colo.App. 335, 337, 38 P. 395, 396 (1894) (noting that the law does not allow a person to have more tiran one satisfaction of a debt but it does allow several remedies, until one satisfaction is obtained).