S.K. Drywall, Inc. v. Developers Financial Group, Inc.

819 P.2d 931, 169 Ariz. 345, 98 Ariz. Adv. Rep. 26, 1991 Ariz. LEXIS 81
Arizona Supreme Court·Decided October 31, 1991·No. CV-90-0302-PR·Published·Cited by 11 cases

Opinion

OPINION

FELDMAN, Vice Chief Justice.

We granted this petition for review, brought by Sunland Drywall, Inc. (Sun-land), to determine whether a subcontractor’s mechanic’s lien filed on a multi-building condominium project is timely, under A.R.S. § 33-993(A), when filed within sixty days of completion of the last work done on any building in the project. Rule 23, Ariz. R.Civ.App.P., 17B A.R.S. We have jurisdiction pursuant to article 6, § 5(3) of the Arizona Constitution and A.R.S. § 12-120.-24.

FACTS AND PROCEDURAL HISTORY

The facts in this case are undisputed and are set forth in detail in the court of appeals’ opinion. S.K. Drywall, Inc. v. Developers Financial Group, Inc., 165 Ariz. 588, 799 P.2d 1362 (Ct.App.1990). Developers Financial Group (DFG) is the owner and developer of The Courts at Gainey Ranch (the project), a multi-building condominium complex consisting of seventy units in eleven detached buildings, along with a swimming pool, ramada, landscaping, streets, and driveways owned in common by the homeowners. DFG recorded a plat map on the project showing the separate buildings numbered from 1 to 11, though the buildings are not identified by these numbers in the residential community. Each unit within the project has a separate legal description.

DFG hired Drongo, Inc. (Drongo), a general contractor, to construct the eleven buildings and other improvements. In a contract dated October 30, 1985, Drongo agreed to complete the work on the eleven buildings for a total sum of $3,241,320. Article 3 of the contract states that the total sum was determined from a schedule of values, which was attached to the contract, that categorized the work to be performed and its price.

Drongo subcontracted with Sunland for drywall and stucco work on the project. Sunland agreed to do the drywall work on all eleven buildings for a total sum of $211,100 and the stucco work for a total sum of $172,000. In both cases, the contract price was determined by a breakdown of the price per building, in recognition of the fact that some buildings contained more units than others.

The terms of Sunland’s drywall and stucco contracts (Sunland contract) are similar to those of DFG’s contract with Drongo (DFG contract). Sunland was to receive monthly progress payments based on ninety percent of the current month’s completed labor, materials, and equipment costs. In both the DFG and Sunland contracts, billing applications for the monthly progress payments were to be submitted with lien waivers for the previous month’s payments. The ten percent retention on each building was payable within thirty days of occupancy of any unit in the building and not more than ninety days after acceptance of the building by the owner. Sunland provided drywall labor and materi *347 als for the ramada and buildings 5, 6, 7, 8, 9, and 10. Sunland provided stucco labor and materials for buildings 5 and 6. Buildings 7, 8, and 9 were under construction at the same time. The other buildings were constructed one at a time.

In January 1987, Drongo quit work on the project and filed for bankruptcy. Sun-land then ceased work on the project. Sun-land properly recorded and served an amended notice and claim of lien for work done on the project. Pursuant to A.R.S. § 33-1004, DFG procured a lien discharge bond from Fidelity & Deposit Co. of Maryland in the amount of $38,591.33. 1 In the trial court, the parties stipulated to the following schedule of completion dates and charges for Sunland’s drywall and stucco labor and materials:

BUILDING DATE COMPLETED AMOUNT
Building 7 May 5, 1986 3.448.73
Ramada May 15, 1986 212.70
Building 8 July 1, 1986 2.089.73
Building 9 July 18, 1986 2.089.73
Building 5 November 4, 1986 6,990.63
Building 6 January 9, 1987 8,032.84

Sunland’s lien was filed March 4, 1987, fifty-four days after completion of work on building 6. DFG argued that the lien was invalid as to all of the buildings, and that it was untimely as to all of the buildings except building 6. On cross-motions for summary judgment, the trial court granted judgment to Sunland.

On appeal, the court of appeals held the lien valid, but a majority held that the lien was time-barred as to all buildings except building 6 under A.R.S. § 33-993, which provides that a lien is timely if filed “within sixty days after the completion of a building, structure or improvement.” The court stated:

Although we do not rule out the possibility that a multi-building project could be deemed an “improvement” within the meaning of A.R.S. § 33-993 on appropriate facts, no such facts are present here. The contractual arrangements between the parties in this case, and the manner in which the buildings in DFG’s condominium development were actually constructed, require the conclusion that each constituted a separate “building” within A.R.S. § 33-993. Accordingly, building 6 was the only one as to which Sunland’s notice and claim of lien was timely filed.

165 Ariz. at 600, 799 P.2d at 1374. Judge Ehrlich dissented from this portion of the opinion, finding that

[t]his was a single project, the subject of a single contract to be executed in phases, and Sunland Drywall was entitled to protect itself through a single lien over all of the buildings on which it did work.

Id. at 603, 799 P.2d at 1377.

We granted Sunland’s petition for review to decide whether the subcontractor’s mechanic’s lien on this multi-building condominium project was timely when filed within sixty days of the last work performed on the project.

DISCUSSION

Mechanics’ liens are creatures of the governing statutes. 53 Am.Jur.2d Mechanics’ Liens § 2 (1970 & Supp.1991). We must first determine, therefore, whether the Arizona statute permits a single lien to be filed on a multi-building condominium development. If the statute permits such a lien, the next question is whether the development was built as a single project or whether different phases of construction were contemplated as distinct and separate projects. See Northwest Fed. Sav. & Loan v. Tiffany Constr. Co., 158 Ariz. 100, 101, *348

S.K. Drywall, Inc. v. Developers Financial Group, Inc., 819 P.2d 931, 169 Ariz. 345, 98 Ariz. Adv. Rep. 26, 1991 Ariz. LEXIS 81 (Ark. 1991).

819 P.2d 931 (S.K. Drywall, Inc. v. Developers Financial Group, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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