Eischen Cabinet Company, Respondent, vs. Norman B. Jacobson, et al., Appellants.

Eischen Cabinet Company, Respondent, vs. Norman B. Jacobson, et al., Appellants. A04-193, Court of Appeals Unpublished, February 15, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-193

 

Eischen Cabinet Company,

Respondent,

 

vs.

 

Norman B. Jacobson, et al.,

Appellants.

 

Filed February 15, 2005

Affirmed; motion denied
Gordon W. Shumaker, Judge

 

Washington County District Court

File No. CX-02-2889

 

 

George L. May, May & O'Brien Law Offices, 204 Sibley Street, Suite 202, Hastings, MN  55033 (for respondent)

 

Alan J. Albrecht, Albrecht & Associates, Ltd., 7066 Brooklyn Boulevard, Brooklyn Center, MN  55429 (for appellants)

 

            Considered and decided by Stoneburner, Presiding Judge; Harten, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Respondent Eischen Cabinet Company brought this mechanic's-lien action to recover payment for cabinets it built and installed for appellants Norman B. Jacobson, Barbara Jacobson, Norman B. Jacobson II, and Lisa Marie Jacobson at a property owned by Barbara Jacobson and Norman Jacobson II.  The district court concluded that respondent was entitled to recover for its claim, less a set-off for defective work, but was not entitled to a mechanic's lien because of failure to file the statutory prelien notice.  After both parties moved for amended findings and respondent moved for a new trial, the district court granted respondent a mechanic's lien against the property and awarded attorney fees and interest.  On appeal, appellants challenge the district court's grant of a mechanic's lien.

            Because the district court's finding that respondent was exempt from the prelien-notice requirement is not clearly erroneous, we affirm.

FACTS

            Appellants Norman B. Jacobson and Barbara J. Jacobson are husband and wife. Appellant Norman B. Jacobson II is their son and is married to appellant Lisa Marie Jacobson.  Barbara Jacobson and her son, Norman Jacobson II, are the fee owners of a recently constructed house in Cottage Grove that they built for investment purposes, although it is currently occupied by the elder Jacobsons, and the younger Jacobsons and their children.  Although nominally there was a general contractor in charge, Norman Jacobson actively supervised the construction, arranging for many of the subcontractors who provided labor and materials.

            Norman and Barbara Jacobson visited respondent Eischen Cabinet Company to inquire about custom cabinetry for the house.  On June 28, 2000, Norman Jacobson signed a contract with respondent for cabinetry for the house.  Norman Jacobson II did not sign or negotiate this contract, but Barbara Jacobson was involved in the selection process.  After this contract was signed, Barbara and Norman Jacobson made four change orders, three of which were signed by Norman Jacobson; the fourth does not have a customer signature.  Neither the contract nor the four change orders included the prelien notice required under Minn. Stat. § 514.011 (2002).

            Most of the cabinets were built and installed between January and May 2001.  Appellants were not satisfied with the cabinets for a number of reasons, including use of the wrong materials, differing shades of paint, chips in the wood, and other defects.  Barbara Jacobson wrote letters of complaint in March, June, and September 2001, and January 2002, describing the defects and asking for correction.  Appellants ultimately rejected at least one of the custom cabinets built by respondent.

            Installation was completed in May 2001.  On July 18, 2001, respondent filed a mechanic's-lien statement claiming an unpaid contract balance of $21,406.29.  On May 14, 2002, respondent started an action to foreclose the lien; appellants counterclaimed, alleging defective workmanship and negligence.

            A court trial was held on June 17 and 19, and July 16, 2003.  The district court judge also made an inspection of the house on June 26, 2003.  The district court made extensive and detailed findings dated September 8, 2003, concluding that respondent was not entitled to a mechanic's lien because it failed to file the prelien notice required under Minn. Stat. § 514.011, but awarding respondent the contract balance of $21,894.93, less an offset of $7,202.45 for defective workmanship or cancelled cabinetry, for a recovery of $14,692.48.  The district court also awarded respondent attorney fees as allowed under the contract in the amount of $11,968.33, and interest in the amount of $6,379.05, for a total judgment against appellants for $33,039.86.

            Both parties made posttrial motions to amend the findings and respondent moved in the alternative for a new trial, submitting an affidavit with three pages of deposition testimony.  In new findings of fact and conclusions of law issued December 8, 2003, the district court stated that it erred by refusing to grant respondent a mechanic's lien because (1) there were no subcontractors involved; and (2) notice from a subcontractor is not required "where the contractor is managed or controlled by substantially the same [person or] persons who manage or control the owner of the improved real estate."  See Minn. Stat. § 514.011, subds. 1, 4a (2002).  The court concluded that Norman Jacobson acted as de facto general contractor for the project, with Barbara Jacobson and Norman Jacobson II's implicit knowledge, and thus notice was not required.   Appellants filed a notice of appeal.

D E C I S I O N I.  Mechanic's Lien

            In a mechanic's-lien proceeding,

the appellate court must sustain the [district] court's findings if they are supported by evidence in the record.  When reviewing a decision reached by a court sitting without a jury, this court's scope of review is limited to determining whether the [district] court's findings are clearly erroneous, either without substantial evidentiary support or based on an erroneous conclusion of law.

 

C. Kowalski, Inc. v. Davis, 472 N.W.2d 872, 875 (Minn. App. 1991) (citations and quotation omitted), review denied (Minn. Sept. 13, 1991).  "Mechanics' lien laws are strictly construed as to the question whether a lien attaches, but are construed liberally after the lien has been created."  Dolder v. Griffin, 323 N.W.2d 773, 780 (Minn. 1982). 

            Minn. Stat. § 514. 011, subd. 1 (2002), states that any person "who enters into a contract . . . for the improvement of real property and who [contracts] with any subcontractors or material suppliers" must give the owner of the property notice of rights and duties under the mechanic's-lien statute.  Subdivision 2 of the same statute requires any subcontractor, except one contracting directly with the owner, to give a similar notice.  Id., subd. 2 (2002).  These notices must be included in the contract or in a separate notice served personally or by registered mail, within 10-45 days after the subcontractor "has first furnished labor, skill or materials for the improvement."  Id.  A party who fails to do so does not acquire a lien against the property.  See generally Minn. Stat. § 514.011 (2002).

Minn. Stat. § 514.011, subd. 4a, provides an exception to the prelien-notice requirement:  "The notice required by this section shall not be required to be given where the contractor is managed or controlled by substantially the same persons who manage or control the owner of the improved real estate."  This exception is in accordance with the purpose of the prelien-notice requirement, which is to protect unwary owners from "hidden liens arising from labor or materials supplied to the contractor by subcontractors or materialmen who extended credit to the contractor on the security of the owner's property and whose identities were unknown and often unascertainable by the owner."  Nasseff v. Schoenecker, 312 Minn. 485, 490-91, 253 N.W.2d 374, 377 (1977).  When the contractor and the owner are one and the same, or the contractor is managed or controlled by the owner, the same concern does not arise; presumably the owner/contractor is aware of the potential liens.  See Pelletier Corp. v. Chas. M. Freidheim Co., 383 N.W.2d 318, 321 (Minn. App. 1986), review denied (Minn. May 16, 1986). 

            The district court here concluded that Norman Jacobson acted as a contractor and thus the owner/contractor exception applied.  Appellants argue that the district court's conclusion was erroneous, because Norman Jacobson nominally was not the contractor for the property and was not a fee owner of the property.

            A definition of "contractor" is not included in the mechanic's-lien statute, but generally it is "a party who undertakes to make specific improvements under a contract with an owner."  Id. at 322 (citation omitted).  In Pelletier, this court, stating that it is not unusual for an owner of property to act as his or her own contractor despite not being "under contract" per se, concluded that an owner acts as a contractor where he or she enters into separate contracts for different jobs necessary to complete construction, supervises or controls work at the job sites, and applies for permits.  Id. at 321-22. 

            According to Norman Jacobson's deposition, he acted as "superintendent" of construction, arranged for various subcontractors, did the actual masonry work and "could put whoever [he] wanted in[.]"  He "handled everything. Whatever [he] wanted got done."  This provides adequate support for the district court's findings. 

            Although it is indisputable that Norman Jacobson was not a record fee owner of the property, he was listed as a mortgagor on at least two mortgages against the property and had an interest in the property as the spouse of Barbara Jacobson, who was a fee owner of the property.  Further, appellants acknowledge that Barbara Jacobson did have knowledge of the contract for cabinets her husband entered into with respondent and took an active part in choosing and negotiating with respondent.  Prelien notices need not be served on all persons with an interest in the property, but on someone with an ownership interest.  Minn. Wood Specialties, Inc. v. Mattson, 274 N.W.2d 116, 119 (Minn. 1978); Marque Plumbing, Inc. v. Barris, 380 N.W.2d 174, 179 (Minn. App. 1986), review denied (Minn. Mar. 24, 1986).  Where no prelien notice is required because of the owner/contractor exception, the knowledge of one owner can likewise be imputed to others with an ownership interest. 

            There is sufficient evidence in the record to support the district court's finding that no prelien notice was required.  Because no notice was required, the district court's grant of a mechanic's lien against the property is not clearly erroneous. 

II.  Other Issues

            Appellants assert that the district court erred by concluding that they had not rejected all of the cabinetry.  This issue was not raised below and is therefore waived.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). 

            Appellants move this court to strike parts of respondent's brief because it referred to matters outside the record and failed to cite to specific pages in the record as required by Minn. R. Civ. App. P. 128.03.  Appellants specifically assert that any references to the affidavit filed by respondent's attorney in its motion for a new trial are improper because the affidavit is not a part of the trial record.

            When a party moves for a new trial in a matter tried to the court, the district court "may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions,  . . . and direct entry of a new judgment."  Minn. R. Civ. P. 59.01; see Safeco Ins. Co. v. Dain Bosworth, Inc., 531 N.W.2d 867, 874 (Minn. App. 1995) (stating that materials submitted as part of motion for relief from judgment are part of trial record on appeal), review denied (Minn. July 20, 1995); Chin v. Zoet, 418 N.W.2d 191, 195 n.2 (Minn. App. 1988) (concluding that district court erred by refusing to accept supplemental affidavit on motion for a new trial).  In Chin, this court states, "While it is true that a trial court may not consider new evidence in considering a motion for amended findings, since appellants also moved for a new trial, the court was permitted to consider these affidavits."  Id. (citation omitted).  The district court relied on these materials when it considered respondent's motion for amended findings or a new trial and issued its amended order based to a large degree on respondent's affidavit.  The affidavit and deposition excerpts are therefore a part of the trial court record and should not be stricken.

            Respondent does cite to specific pages in the record in its statement of facts; the statements to which appellants object are argument rather than factual statements and need not have citations to the record.  For these reasons, we deny appellants' motion to strike.

            Affirmed; motion denied.