Fagerlie v. MARKHAM CONTRACTING CO., INC.
227 Ariz. 367
Ariz. Ct. App.2011Background
- EHV acquired a large Peoria parcel in 2004 and subdivided it into 28 lots sold as site-improved lots.
- In 2005 Markham proposed work on the parcel and served a preliminary twenty-day notice naming EHV as owner or reputed owner.
- Markham performed over $3 million in work; EHV later acknowledged owing $569,565.
- Markham recorded a First Lien in December 2007 but attached incomplete supporting documents (Original Exhibit A and proper proof of mailing).
- Markham amended the lien in January 2008, then sought correction in March 2008; suit was filed by Fagerlie to remove liens and sanction Markham; Markham asserted counterclaims and foreclosure-related filings.
- The trial court granted summary judgment to the lot owners on several defects, leading to this appeal seeking reversal and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of the lien as to work furnished at owner's instance | Markham's work was at EHV's instance as agent | EHV was not owner or agent for lien purposes | Lien valid; EHV acted as statutory agent for lien purposes |
| Service of Preliminary Notice on owner or reputed owner | Service on EHV was proper as owner or reputed owner | Service failed if EHV not owner/reputed owner | Proper under statute; EHV was owner or interested party; service adequate |
| Timeliness of recording the lien | Completion and filing occurred within 120‑day window; contested gaps create material fact | Gaps showed completion earlier; lien untimely | Material fact questions remain; summary judgment reversed on completion timing |
| Original Exhibit A and proof of mailing not attached | Substantial compliance permitted; corrected documents timely filed | Nonattachment rendered lien defective | Substantial compliance allowed; correction timely within filing window |
| Lis pendens notarization requirement | Notarization not required for lis pendens in lien foreclosure | Notarization required under some provisions | Lis pendens need not be notarized; valid without notarization |
Key Cases Cited
- MLM Constr. Co. v. Pace Corp., 172 Ariz. 226 (Ariz. 1992) (strict adherence to steps; substantial compliance allowed in perfection of lien)
- S.K. Drywall, Inc. v. Developers Fin. Group, Inc., 169 Ariz. 345 (Ariz. 1991) (single improvement; timing of completion governs lien period)
- Peterman-Donnelly Eng'rs & Contractors Corp. v. First Nat'l Bank of Ariz., 2 Ariz. App. 321 (Ariz. App. 1966) (substantial compliance suffices when general contract terms are disclosed)
- Mills v. Union Title Co., 101 Ariz. 297 (Ariz. 1966) (agency for lien purposes; contractual obligation supports lien via statutory agent)
- Stratton v. Inspiration Consol. Copper Co., 140 Ariz. 528 (Ariz. App. 1984) (statutory agency fiction to permit remedies against owner)