Opinion
No. 77-1065
Decided January 25, 1979. Rehearing denied March 8, 1979. Certiorari granted June 18, 1979.
Holders of deeds of trust appealed a judgment approving a Master's findings that a mechanics' lien was valid and superior to their security interest in the property.
Reversed
1. MECHANICS' LIENS — Lienholder — Must Join — Enforcement Action — Statutory Period — Filing — Motion to Intervene — Insufficient — Joinder Effected — Motion Granted. A mechanics' lienholder must sue or be joined in an action to enforce its lien within the statutory period; and the mere filing of a motion to intervene in an existing action is not sufficient; rather joinder is accomplished only when and if the court grants the motion to intervene.
Appeal from the District Court of Jefferson County, Honorable Ronald J. Hardesty, Judge.
Towey Zak, James J. Zak, for defendants-appellants.
Stephen H. Diamond, for defendant-appellee.
On December 3, 1974, this mechanic's lien foreclosure action was commenced by Amco Electric Company, but defendant Franklin Contract Sales Company was not named as a defendant. On August 21, 1975 Franklin filed a motion to intervene in order to enforce its mechanic's lien in the amount of $25,908.16. This motion was granted on October 27, 1975.
The matter was referred to a Master who found that Franklin's mechanic's lien was valid and superior to deeds of trust held by First National Bank of Denver (First National) and Percy Wilson Mortgage and Finance Corporation (Percy Wilson). The trial court entered judgment approving the Master's findings, and awarded Franklin $22,869.58 plus interest. First National and Percy Wilson now appeal. We reverse.
Franklin entered into a contract with a development company for the installation of drapes and carpeting at a condominium project known as "The Oaks". Pursuant thereto Franklin installed drapes in the amount of $2,872.62 and carpeting worth $23,035.54 and recorded its mechanic's lien on January 13, 1975, subsequent to commencement of the foreclosure action against the project on December 3, 1974. At a hearing held before the Master, the parties stipulated that Franklin commenced work on November 16, 1973; that the final date of work performed by Franklin was December 23, 1974; that all work ceased on the project on December 23, 1974, with the last work performed by Franklin. The Master found that the parties had stipulated that by the terms of § 38-22-109(7), C.R.S. 1973, the project was deemed to have been completed three months after discontinuance of all labor and provision of materials, that being March 23, 1975.
First National and Percy Wilson argue on appeal that Franklin's intervention was not timely. We agree.
Section 38-22-110, C.R.S. 1973 provides that:
"No lien claimed by virtue of this article . . . shall hold the property longer than six months after the last work or labor is performed, or materials furnished, or after the completion of the [project], . . . as prescribed in Section 38-22-109, unless an action has been commenced with that time to enforce the same . . . ."
By the terms of this section, read together with § 38-22-109(7), Franklin had nine months from December 23, 1974 to commence an action to foreclose its lien. Although Franklin filed its motion to intervene on August 21, 1975, the motion was not granted until October 27, 1975, more than nine months after the cessation of work.
[1] Section 38-22-110, C.R.S. 1973, requires that a lienholder must sue or be joined in an action to enforce its lien within the statutory period. Rogers Concrete Inc. v. Jude Contractors, 38 Colo. App. 26, 550 P.2d 892 (1976). We conclude that under the statute, the mere filing of a motion to intervene is not enough. An intervening lien claimant must be joined in an action. A lien claimant is not joined in an action by the mere filing of a motion, but rather joinder is accomplished only when and if the court in the exercise of its discretion grants the motion. C.R.C.P. 24.
This interpretation does not diminish the statutory protection granted a mechanic or materialman under the mechanic's lien law since a lienholder is permitted by the statute to commence an independent action to foreclose his lien, and the lienholder may thereafter seek consolidation of his cause with any other independent claims upon application to the court.
Here, Franklin's lien was specifically extinguished by the statute when it failed to sue or be joined by order of the court in the pending foreclosure action within the permissible statutory period. Rogers Concrete v. Jude, supra. The trial court therefore erred in adjudicating that Franklin's lien was superior to the deeds of trust.
Judgment reversed.
JUDGE COYTE and JUDGE BERMAN concur.