Stern v. Great Plains Federal Savings & Loan Ass'n

1989 OK CIV APP 46, 778 P.2d 933, 1989 Okla. Civ. App. LEXIS 37
CourtCourt of Civil Appeals of Oklahoma
DecidedJuly 11, 1989
DocketNo. 68983
StatusPublished
Cited by4 cases

This text of 1989 OK CIV APP 46 (Stern v. Great Plains Federal Savings & Loan Ass'n) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stern v. Great Plains Federal Savings & Loan Ass'n, 1989 OK CIV APP 46, 778 P.2d 933, 1989 Okla. Civ. App. LEXIS 37 (Okla. Ct. App. 1989).

Opinion

MEMORANDUM OPINION

GARRETT, Presiding Judge.

Appellant Fred Stern, an architect, brought this action against Westside Properties and Cape Cod, Inc. (Defendants) for the value of his services as an architect in a condominium construction project. Appellant filed a mechanics and materialmen’s lien, pursuant to 42 O.S.1981 § 141, against the property for the sum of $49,000.00, for services on Phases II and IV of the project, for preparation of plans and specifications. Appellee Great Plains Federal Savings and Loan Association (Great Plains) was joined as a party because it posted bond to release the lien.

A jury trial was held. After Appellant rested, Great Plains filed a motion to dismiss, raising the issue whether or not Appellant’s claim for services rendered is lien-able under 42 O.S.1981 § 141. The trial court granted Great Plains’ motion. In the order the trial court found:

In this matter, I find that neither the value of any services rendered by Mr. Stern have been proven, and further find that, even if proven, the services and claims are not lienable under [the law of] the State of Oklahoma.

The trial court entered judgment in favor of Great Plains as to Appellant’s claims against it. Defendants (other than Great Plains) offered to confess judgment in Appellant’s favor for $30,000.00, which Appellant accepted. Judgment was entered accordingly. The trial court also declined to rule on Great Plains’ request to release its bond posted with the Cleveland County Clerk to discharge the lien and also declined to rule on Appellant’s request to amend his lien statement in light of its previous ruling. At a later date, the trial court granted Appellant attorneys fees and costs against the Defendants, and granted Great Plains attorney fees and costs against Appellant.

Appellant raises three propositions of error: (1) that the trial court erred in finding the value of his services were not proven and in taking that issue from the jury; (2) that an architect is entitled to claim a lien [935]*935for enhancement in value or improvements which do not necessarily require physical construction or alteration of the real property; and (3) Great Plains was not a proper party to this action and is not entitled to attorney fees or costs.

We think our first consideration should be whether an architect is entitled to claim a lien in Oklahoma under 42 O.S. 1981 § 141.1 This statute does not specifically mention an architect’s services. However, we find the case of Midland Mortgage Company v. Sanders England Investments, 682 P.2d 748 (Okl.1984) instructive on this issue. One issue therein was whether an engineering firm’s mechanic’s lien for surveying work was superior to a mortgage lien. The surveying occurred prior to the recordation of the mortgage. Midland was a case of first impression on the issue of whether surveying by an engineering firm entitles it to a lien under 42 O.S.1981 § 141. The Supreme Court held that such work was covered by the statute. The Court stated:

The mechanic’s and matérialman’s lien statute does not require that the labor performed for the erection of any building be part of the permanent construction of the building, or that it be continuous or visible. It provides that any person who, under oral or written contract performs labor or material for the improvement of land, has a lien which takes preference over all other liens which may attach upon the land after the date of the performance of the first labor on the land. Whether surveying by an engineering firm entitles it to a lien pursuant to 42 O.S.1981 § 141 is a question of first impression. However, this Court has defined the improvement of iand described in § U1 as including anV and every character of improvement on realty. (Emphasis added) (Footnotes omitted).

682 P.2d at 749-750. The nature of the work done by an architect, e.g., plans and specifications which are drawn prior to the first work done on the land, is work which is not seen on the land itself. However, it leads to the work which is done on the land. These services are necessary before the actual physical construction upon the land can take place, and without which such construction would not occur. We hold that the services of an architect in the preparation of plans and specifications which are used in the work done on the land are improvements of land and are thus lienable claims under 42 O.S.1981 § 141. See Midland Mortgage Company v. Sanders England Investments, supra; Green v. Reese, 261 P.2d 596 (Okl.1953), citing Peaceable Creek Coal Co. v. Jackson, 26 Okl. 1, 108 P. 409 (1910).

It is next necessary to decide whether Appellant’s architectural services, in this case, are lienable claims under § 141. Pertinent language of this statute reads as follows:

[936]*936Any person who shall, under oral or written contract with the owner of any tract or piece of land, perform labor, furnish material or lease or rent equipment used on said land for the erection, alteration or repair of any building, improvement or structure thereon or perform labor in putting up any fixtures, machinery in, or attachment to, any such building, structure or improvements; ... or who shall build, alter, repair or furnish labor, material or lease or rent equipment used on said land for buildings, altering, or repairing any fence or footwalk in or upon said land, or any sidewalk in any street abutting such land, shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances_ (Emphasis added).

We find that the emphasized language of the statute and the above-cited quotation from Midland, supra, contemplate that labor, such as that performed by Appellant, is lienable only when it results in some actual “erection, alteration or repair of any building, improvement or structure thereon ”. In other words, we find the lien statute contemplates that the land is improved through some “erection, alteration or repair” of a building, improvement or structure on the land. An architect’s work need not be the actual work done on the land; however, to be lienable, it must be services which results in work being done on the land. In this case, Phases II and IV were never funded or constructed. Thus, Appellant’s architectural services for Phases II and IV, as shown on the statement attached to his lien, were not used to improve this property and are not lienable claims under 42 O.S.1981 § 141.

Having decided that Appellant’s claims are not lienable under 42 O.S.1981 § 141, it is unnecessary to decide the issue of whether he proved the value of his services.

We note that Appellant attempted to amend his lien statement to include services for Phase I. The trial court reserved ruling on the request pending submission of evidence by Appellant regarding the request. The trial court eventually denied the request to amend. The testimony at trial showed Phase I was built in 1985, and Appellant testified that the plans for Phase I were being revised after that. However, he admitted that Phase I was not being physically revised. Further testimony shows that no physical changes were made on Phase I:

Q. Nothing was done physically to Phase One, was there? I mean, based on your changes with Mr. Clayton, physically nothing was done?
A. No, sir.

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Bluebook (online)
1989 OK CIV APP 46, 778 P.2d 933, 1989 Okla. Civ. App. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stern-v-great-plains-federal-savings-loan-assn-oklacivapp-1989.