Sure-Shock Electric, Inc., Plaintiff-Appellee and Cross-Appellant,
Diamond Lofts Venture, LLC, Defendant-Appellant and Cross-Appellee
City and County of Denver District Court No. 06CV7785. Honorable J. Eric Elliff, Judge.
Sweetbaum Sands Anderson, P.C., Alan D. Sweetbaum, Katherine Karamalegos Kust, Denver, Colorado, for Plaintiff-Appellee.
Lewis Roca Rothgerber, LLP, Kris J. Kostolansky, Jaclyn K. Brown, Denver, Colorado, for Defendant-Appellant.
Graham and Plank[*], JJ., concur.
[¶1] Diamond Lofts Venture, LLC (DLV) appeals the trial court's judgment allowing Sure-Shock Electric, Inc. (Sure-Shock) to foreclose on a mechanics' lien. Sure-Shock cross-appeals. We affirm.
I. Background and Procedural History
[¶2] The facts in this case are not in dispute. DLV was the developer and owner of a building project at 2210 Blake Street in Denver (Blake Street property). The Blake Street property has two commercial units on the first floor and twenty-seven residential
units on floors two through five. Sure-Shock was the primary electrical contractor on the project and installed the electrical work throughout the building.
[¶3] In October 2007, Sure-Shock filed a mechanics' lien for the unpaid contract price. The same day, Sure-Shock filed an amended lien statement for the unpaid contract price plus interest. The original and the amended lien statements identified the Blake Street property as the property charged with the lien, but DLV as the only owner. However, DLV only owned seven (DLV units) of the twenty-nine units at that time, having sold the rest. Sure-Shock later clarified that its lien was only against the units DLV owned when Sure-Shock's lien was filed.
[¶4] Sure-Shock then filed a complaint against DLV asserting claims for breach of contract and unjust enrichment, and to foreclose on the lien. Pursuant to their contract, DLV and Sure-Shock first participated in arbitration. The arbitrator determined that Sure-Shock had proved its claims, and awarded it the principal amount claimed in the amended lien statement. A division of this court affirmed the district court's affirmation of the arbitration award and remanded to the trial court the issue whether the lien was procedurally valid. Sure-Shock Elec., Inc. v. Diamond Lofts Venture, LLC, 259 P.3d 546, 550 (Colo.App. 2011).
[¶5] After a bench trial, the trial court found that Sure-Shock's lien was procedurally valid, and it apportioned the lien to the seven DLV units. Though Sure-Shock had performed electrical work throughout the building, the court determined that the DLV units would only be responsible for a portion of the lien relative to each unit's square footage. The court entered a decree of foreclosure authorizing the sale of the DLV units to satisfy Sure-Shock's lien.
[¶6] In this appeal, DLV contends that the trial court erred in allowing Sure-Shock to foreclose on its lien because (1) Sure-Shock did not comply with statutory notice requirements; (2) the lien statement did not sufficiently describe the property charged with the lien; and (3) Sure-Shock's assertion of a blanket lien lacked good faith. DLV also contends that the trial court erred in awarding Sure-Shock costs because it was not the prevailing party below. On cross-appeal, Sure-Shock contends that the trial court erred in apportioning the lien. We affirm.
II. Validity of the Lien
[¶7] DLV first contends that the trial court erred in allowing Sure-Shock to foreclose on its lien because Sure-Shock failed to comply with the statutory requirements necessary to perfect the lien. We disagree.
A. Standard of Review
[¶8] We review a trial court's application of the mechanics' lien statute de novo. See Ferguson Enters., Inc. v. Keybuild Solutions, Inc., 275 P.3d 741, 745 (Colo.App. 2011). The mechanics' lien statute's notice requirements and the contents of the required lien statement relate to the perfection of the lien, and thus must be strictly construed. See id.
B. Notice of Intent to File a Lien
[¶9] DLV first argues that Sure-Shock's amended lien is invalid because Sure-Shock did not comply with the statutory notice requirements.
[¶10] To preserve the right to assert a lien, a lien claimant must provide a " notice of intent to file a lien" to the property owner at least ten days before filing the lien statement with the county clerk and recorder. § 38-22-109(3), C.R.S. 2013; Skyland Metro. Dist. v. Mountain W. Enter., LLC, 184 P.3d 106, 116 (Colo.App. 2007) ( " If a mechanics' lien claimant fails to comply with the requirement of service of the notice of intent, he or she fails to meet the burden of proving a right to the lien under the statute." ). And a lien claimant can file a " [n]ew or amended" lien statement within the time period specified in the statute " for the purpose of curing any mistake or for the purpose of more fully complying with the provisions of [the statute]." § 38-22-109(6).
[¶11] The parties agree that Sure-Shock provided DLV with proper notice more than ten days before filing the original lien statement, but DLV contends that Sure-Shock did not provide an additional ten-day notice before filing the amended lien statement. The amended lien ...