Opinion
Aug. 29, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1189
Kane, Donley & Wills, Lee Wills, Colorado Springs, for plaintiff-appellee and intervenors-appellees.
Blakemore McCarty, Colorado Springs, for defendant-appellant.
DWYER, Judge.
In this action, plaintiff, S & S Construction, Inc., and three intervenors, Floor Craft, Inc., C.F. Long Painting Co., Inc., and Berwick Electric Company, obtained a judgment foreclosing their mechanics' liens on certain real estate owned by defendant R. R. Riss, Sr. Judgments for damages against Evergreen-Springs, Inc., lessee of the premises, were entered by default and have not been appealed. On this appeal, Riss seeks reversal of the judgment foreclosing the liens. We affirm.
On October 27, 1969, Riss, the owner, leased the Old Elks Building in Colorado Springs to Evergreen-Springs, Inc. The lessor authorized the lessee to make improvements to the building to make it suitable for use as a restaurant.
Pursuant to a contract with the lessee, S & S Construction, Inc., and two of its subcontractors constructed the emprovements for which the liens are claimed. Floor Craft, Inc., also claimed a lien for installing floor coverings in the building under separate contract with the lessee. It is undisputed that all the liens were timely and properly filed and that the amounts for which the liens were claimed are due and owing.
Under the mechanics' lien statutes, a landlord, who by lease or contract has buthorized improvements, subjects his interest in the property to a mechanics' lien unless he gives notice of 'nonliability' in compliance whth C.R.S. 1963, 86--3--5(2), which provides:
'Such interest so owned or claimed shall be subject to any lien given by the provisions of this article, unless such owner or person, within five days after he shall have obtained notice of the erection, construction, alteration, removal, addition, repair or other improvement, shall give notice that his interests shall not be subject to any lien for the same, by serving a written or printed notice to that effect, personally, upon all persons performing labor or furnishing skill, materials, machinery or other fixtures therefor, or within five days after he shall have obtained the notice aforesaid, or notice of the intended erection, construction, alteration, removal, addition, repair or other improvement, shall give such notice by posting and keeping posted a written or printed notice to the effect aforesaid, in some conspicuous place upon said land or upon the building or other improvements situate thereon.'
The issue at trial was whether Riss complied with the requirement of service or posting of notice of nonliability. Work was begun by S & S on October 31, 1969, and continued for six working days when it was interrupted and stopped until December 15, 1969. The work originally contemplated was then resumed and thereafter completed. On December 19, 1969, Riss served a written notice of nonliability upon S & S. This was not timely under the statute because the notice was not served within five days after the lessor obtained notice of the construction.
Riss offered testimony that written notice of nonliability was posted October 27, 1969. Workmen, however, testified that they did not see any notice of nonliability posted on the property in question. In Denver Decorators, Inc. v. Twin Teepee Lodge, Inc., 163 Colo. 343, 431 P.2d 8, an action to foreclose a mechanics' lien for work performed under contract with lessee, the court held that the issue whether the owner's notice of nonliability had been posted as required by C.R.S.1963, 86--3--5, was a factual issue to be determined by the trial court. The court there cited with approval Byrne v. Stone & Birkle, Inc., 156 Colo. 445, 399 P.2d 940, wherein it was stated:
'The credibility of the witnesses, the sufficiency, probative effect and weight of the evidence, the inferences and conclusions to be drawn therefrom, of necessity are all within the province of the trial court, and will not be disturbed on review, unless manifestly erroneous or actuated by passion or prejudice.'
It was upon conflicting evidence that the trial court found as a matter of fact that the notice of nonliability was not posted and kept posted as required by the statute.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.