We are asked to decide whether a contractor who makes repairs and improvements to real property, under agreement with a tenant, is entitled to imposе a laborer’s and materialman’s lien against the landlord’s interest in the property. Upon the facts presented in this case, the district court entered summary judgment holding that the contractor was entitled to such a lien. We affirm.
The facts essential to our opinion are undisputed. The landlord, Idaho Land Developers, Inc., leased a tavern and restаurant to the tenants, William P. Kelly and Kelly Enterprises, Inc., for a period of fifteen years. The lease instrument required the tenants to “maintain the plumbing, heating, air conditioning equipment, and electrical outlets ... and all other maintenance.” The lease further provided that the tenants “shall not do or permit to be done in said premises anything that would be dangеrous, illegal or unlawful under the ordinances of the City of Idaho Falls.... ”
After approximately four months had elapsed under the lease, the landlord received a letter from thе chief electrical inspector of the City of Idaho Falls. The letter, addressed to the landlord with copies to the tenants and to the city fire department, listed thirty-one “electrical violations and deficiencies” found during an inspection of the subject property. The violations and deficiencies included numerous instances of improрer wiring, inadequate receptacles, missing outlet covers, and loose or open wiring. The inspector’s letter advised that the corrections “must be made within fifteen days frоm receipt” of the letter. The landlord forwarded the letter to the tenants, who then engaged a contractor, Loc Electric, to remedy all the violations and deficiencies. The contractor performed the work as requested, but the tenants failed to pay. A claim of lien for labor and materials was filed of record against the property. When the landlord similarly failed to pay, the contractor successfully sued to foreclose the lien.
On appeal from the summary judgment, our threshold inquiry is whether the reсord discloses any “genuine issue of material fact.” I.R.C.P. 56(c). Because the events recited above are uncontroverted, it appears that no genuine factual issuе exists. We turn, then, to the next inquiry — whether, upon these facts, the contractor was entitled to judgment as a matter of law.
The contractor’s claim of lien- was grounded in I.C. § 45-501, which provides, in pertinent part, as follows:
Every person performing labor upon, or furnishing materials to be used in the . .. alteration or repair of ... any structure has a lien ... for the work or labor done or materials furnished, whether done ... or furnished at the instance of the owner of the building ... or his agent. [Emphasis supplied.]
As a general principle, a tenant is not the “agent” of the landlord, for the purpose of § 45-501, merely by virtue of a lessor-lessee relationship.
See generally
Anno.,
In the present case, the district court did not distinguish between these two corоllaries. However, the court held that the general requirements imposed by the lease— that the tenants “maintain” the premises, and that they refrain from any unlawful use of the premises — were rendered “specific” in their application when the landlord *460 forwarded to the tenants the city’s letter enumerating thirty-one corrections needed in the electrical system on the premises. This view of the case invokes the first corollary, that a landlord’s interest is lienable if the lease specifically requires the work in question. The cоurt also held that the landlord’s act of forwarding the city’s letter to the tenants represented “a ratification or a consent for the work to be done.” This view would bring the case within the second corollary.
The landlord argues, in effect, that application of either corollary rests upon the district court’s implicit determination that the tenants wеre expected to take remedial action in response to the city’s letter. The landlord contends that such a determination relates to a question of fact, and is precluded by the rule that a party resisting summary judgment is entitled to have the record construed, and all reasonable inferences drawn, in his favor.
E.g., Palmer v. Idaho Bank & Trust Co.,
The landlord has invited our attention to Russell v. Hill, 4th Jud. Dist., Ada County, No. 23942, 1 Idaho Supp. 254 (1952). In that case, a district court ruled that a landlord’s interest was lienable only if the work in question were specifically described and required in the lease itself. We believe this ruling too narrowly states the law in Idaho. Particularly, it is inconsistent with the Supreme Court’s subsequent decision in Bunt v. Roberts, supra, stating that a lien may attach upon a landlord’s act of ratification or consent to the work performed. The landlord asserts that Bunt actually militates in its favor because the result in that case was to hold a property owner’s interest not subject to a lien for work performed at the direction of a tenant. This description of the result is correct, but it does not detract from the principles of ratification and consent articulated in Bunt and applied here. Moreover, the reported facts in Bunt disclosе no awareness by the landlord of the work on the property until it was completed. In contrast, the landlord here was informed of the need for specific work and forwardеd a letter on the subject to the tenants. We conclude that the narrow ruling in Russell, and the factual setting of Bunt, afford no basis to disturb the judgment entered in this case.
The landlord further contends that, even if its interest in the property is held lienable, the work performed by the contractor went beyond the requirements of the city’s letter — and, therefore, went beyond the scope of any lien. Howеver, the contractor itemized the labor and materials furnished, and claimed that the work was performed to correct the deficiencies noted by the city. The district court, in a memorandum decision issued prior to the entry of summary judgment, offered the landlord an opportunity to challenge the necessity of any such work. When the landlord did not respоnd to this offer, summary judgment was entered. On appeal, we will not decide questions which were not presented, and on which no ruling was obtained, in the court below.
See, e.g., Gemkist Farms, Inc. v. Bolen,
Finally, we consider the question of whether to award attorney fees on appeal to the contractor. Our Supreme Court recently noted that I.C. § 12-121 is the only statute which authorizes an award of attor
*461
ney fees, on appeal, in actions tо foreclose liens for labor and materials.
Acoustic Specialties, Inc. v. Wright,
The judgment of the district court is affirmed. Costs to respondent.