Thatcher & Sons, Inc. v. Norwest Bank Casper, N.A.

750 P.2d 1324, 1988 Wyo. LEXIS 62, 1988 WL 18881
CourtWyoming Supreme Court
DecidedMarch 8, 1988
Docket87-124
StatusPublished
Cited by25 cases

This text of 750 P.2d 1324 (Thatcher & Sons, Inc. v. Norwest Bank Casper, N.A.) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thatcher & Sons, Inc. v. Norwest Bank Casper, N.A., 750 P.2d 1324, 1988 Wyo. LEXIS 62, 1988 WL 18881 (Wyo. 1988).

Opinions

MACY, Justice.

This is an appeal from a partial summary judgment giving the mortgage of appellee-defendant Norwest Bank Casper, N.A. (the Bank) priority over the lien of appellant-plaintiff Thatcher & Sons, Inc. (Thatcher). The issues raised by Thatcher are (1) whether the priority of a subcontractor’s lien relates back to the commencement of construction on a project, and if so (2) whether cessation of construction precludes such a relation back. In response to the issues raised by Thatcher, the Bank also raised the issue of whether or not Thatcher has a perfected lien.

We reverse in part and remand.

Glenrock Development Corporation owns the Indian Hills Subdivision which embraces the Indian Hills Golf Course. During the construction of the golf course by Glenrock Development Corporation, various subcontracts were let with actual construction beginning in the summer of 1983. In November 1984, construction work on the golf course ceased when Glenrock Development Corporation was unable to pay some of its subcontractors or finance the [1326]*1326remaining construction needed for completion of the course. Consequently, Glenrock Development Corporation secured a loan of $490,000 from the Bank “[t]o pay off some existing debts * * * and to finish the construction of the golf course.” This loan was secured by a first mortgage on the Indian Hills Subdivision, including the golf course, which was properly recorded by the Bank.

Several weeks after the Bank recorded its mortgage, Glenrock Development Corporation contracted for the first time with Thatcher to provide extensive dirt work on the fairways, greens, and tee boxes. This work was performed during the period of April 18, 1985, through July 23, 1985. On November 4, 1985, Thatcher filed a lien statement claiming a lien against the golf course property for the cost of the dirt work.

On December 24, 1985, Thatcher filed a complaint in district court seeking a judgment against Glenrock Development Corporation in the amount of $34,428.93 for the dirt work, attorney’s fees, and costs and asking for a judgment declaring that its lien be foreclosed as a valid lien superior to the Bank’s mortgage and the lien of co-defendant Black Hills Bentonite. Glenrock Development Corporation filed its answer generally denying the essential allegations of the complaint and alleging the affirmative defenses that (1) Thatchér failed to state a cause of action; and (2) Thatcher failed to name an indispensable party. Black Hills Bentonite filed its answer to the complaint and a counterclaim against Thatcher, and it filed cross-claims against Glenrock Development Corporation and the Bank seeking a judgment against Glenrock Development Corporation for payment in the amount of $19,827.38 for the bentonite clay which it furnished for lining a reservoir on the golf course and asking for a judgment declaring that its lien be foreclosed as a valid lien superior to the lien of Thatcher and the mortgage of the Bank.

The Bank filed its answer generally denying the essential allegations of Thatcher’s complaint and alleging the affirmative defenses of failure to state a cause of action and failure of Thatcher to timely file its lien or meet all statutory requirements. The Bank and Glenrock Development Corporation respectively filed their answers generally denying the validity of Black Hills Bentonite’s claim and lien.

Thatcher filed a motion and supporting documents for summary judgment against the Bank and the co-defendants, Glenrock Development Corporation and Black Hills Bentonite. In response, the Bank filed a motion opposing the summary judgment stating that there were material questions of fact regarding the work done by Thatcher and that there was no basis in fact or law regarding priority of Thatcher’s lien as it related to the Bank’s mortgage. The Bank did not file a motion for summary judgment.

On March 27, 1987, the court filed its partial summary judgment granting Thatcher judgment against Glenrock Development Corporation for $44,440.93 and accruing interest, decreeing that the Bank’s mortgage has priority over the liens of Thatcher and Black Hills Bentonite, and ordering that the matter proceed to trial only upon Black Hills Bentonite’s claim against Glenrock Development Corporation.

PRIORITY OF A SUBCONTRACTOR’S LIEN

Section 29-l-305(b) and (c), W.S.1977, pertaining to the priority of a subcontractor’s lien, states:

“(b) Any lien perfected as provided by this title attaches to the materials, machinery or supplies furnished and improvements made in preference to any subsequent lien, security interest or mortgage under any other provision of law which has been perfected upon real or personal property, including a leasehold interest, against which the lien is claimed.
“(c) Any lien, security interest or mortgage which has been perfected upon real or personal property or upon a leasehold interest prior to the commencement of any construction work or repair of the premises or property except as provided [1327]*1327by chapter 7 of this title shall have priority.”

The court stated in its decision letter that:

“Section 29-l-305(b) * * * provides in essence that any lien properly filed will attach ‘in preference to any subsequent lien, security interest or mortgage.’ This [ijmplies a ‘first in time first in right’ to the [attachment] of liens after construction has commenced. The Bank’s lien was subsequent in time even if the construction taking place after the loan was made was considered to be ongoing.”

The Bank asserts that the court made the proper decision but that it is subsection (c) and not subsection (b) which gives its mortgage priority over Thatcher’s lien. The Bank contends that, in the context of this case, the language “any construction work” must refer to a particular contract in privity with Thatcher, and, since the Bank’s mortgage was prior to Thatcher’s subcontract, the Bank’s mortgage has priority.

This interpretation assumes language . which is not found in § 29-l-305(c). There is nothing in this subsection which requires that the construction be performed pursuant to a particular contract in privity with a subcontractor. The Supreme Court will not read into laws what is not there. Department of Revenue and Taxation of State of Wyoming v. Hamilton, Wyo., 743 P.2d 877 (1987). This subsection merely makes it clear that a mortgage perfected prior to the commencement of any construction on a project has priority over a subcontractor’s lien.

It is fundamental that statutes be viewed in the light of the objects and purposes to be accomplished. Hurst v. State, Wyo., 698 P.2d 1130 (1985). It is clear to this Court that one of the purposes of the lien statutes is to provide a method by which a subcontractor can be assured he will receive payment for work and materials furnished on a project. Construing § 29-l-305(b) as being a “ ‘first in time first in right’” statute obviates the purpose of the statute. The effect in most instances, as in this case, would be that the subcontractor would not have a meaningful lien. A lien on only the dirt work involved in the construction of a golf course is of no value.

We disagree with the finding of the district court that § 29-l-305(b) is a first-in-time, first-in-right statute.

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Thatcher & Sons, Inc. v. Norwest Bank Casper, N.A.
750 P.2d 1324 (Wyoming Supreme Court, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
750 P.2d 1324, 1988 Wyo. LEXIS 62, 1988 WL 18881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thatcher-sons-inc-v-norwest-bank-casper-na-wyo-1988.