Compass Bank v. Brickman Group, Ltd.

(1995 Supp.)). Assembly, res- the intent of 8A C.R.S. Wolford’s the General convic- of upon based the total amount titution was only requires tion under section 8-43-402 she TTD benefits that Wolford received after compensation forfeiture of the that was ob- working. started This order reaches as of tained a result false statements. Ac- permitted as that under same result section cordingly, we reverse the of decision today interpret 8-43-402 we forfei- —the of court and order the case remand- compensation ture of that obtained as re- proceedings ed to district court for con- sult of Wolford’s false statements. opinion. sistent this benefits, receiving As a TTD condition to work. permitted Wolford was not (2004) 8-42-105(3)(b),

§ (“Temporary disability

total until benefits shall continue any one first occurrence of of the follow-

ing: employee ... regular returns to Thus, employment.”).

modified when Wol- working

ford first stated she was not May 1993, longer was no TTD she entitled to BANK, Petitioner, COMPASS benefits. she filed false statements When working, with Pinnacol that she was not she began receiving compensation workers’ bene- GROUP, LTD., The BRICKMAN fits as a result of her false statements. Con- corporation, a Delaware tinuing May through November Respondent. compensation TTD Wolford re- ceived was as a result of false obtained her No. 03SC632. such, statements. As consistent opinion, compen- Wolford forfeited this TTD Colorado, Supreme Court upon sation her conviction under section 8- En Banc. 43-402 because the nexus between the March false she statements was convicted Thus, compensation and the she received.

the criminal court’s restitution order of compensation effectively

same TTD made

proper forfeiture of Wolford’s TTD benefits. case, however,

The district court in this looking

without to the nexus between compensation

false statements and the for-

feited, determined as a matter of law that compensa-

Wolford also forfeited PPD her Accordingly,

tion. court district erred summary

granting judgment Pinnacol

against Wolford.

D. Other Issues Raised Wolford

Because we have determined that dis- required

trict court erred Wolford PPD compensation forfeit her as a matter law, we need not consider her additional

contentions that such a forfeiture violated prohibitions against

constitutional double

jeopardy and excessive fines.

III. Conclusion give provisions

To to all in the effect Compensation

Workers’ Act preserve

957 LLP, Stubbs, partial payments Davis Graham & Glen E. continued to make on the Denver, Keller, Jr., Simko, S. Peti- contract unit James as each was sold.

tioner. May Compass appoint- Bank was Hostetler, LLP, Quiat, Laurin D. units, Baker & ed prede- receiver for for which its Denver, Respondent. Karlsgodt, Paul cessor in interest had made construction loans, trust; secured deeds of and Com-

COATS, Justice. pass began foreclosing on those units. Four of Bank, those units were nine in the described Compass the defendant an action in lien. All brought by Group proceed- Brickman’s foreclosure the Brickman to foreclose lien, ings temporarily stayed on were sought a mechanics’ review of the when Anthem appeals judgment voluntary petition court filed a Bankruptcy; of reversal of a inval in but idating Group, in February pursuant the lien. See Brickman Ltd. agreement to an Bank, Compass (Colo.App. Anthem, P.3d Compass was relieved of the 2003). court found Brick- The district had stay proceeded and with foreclosure sales. man’s lien invalid it blanket because included One of the four units was sold and released fewer than all of the that benefit exchange in por- Brickman’s lien for a ed under the same contract. The court of outstanding tion of remaining the debt on reversed, appeals holding that the lien could remaining Anthem’s contract. Of the three Compass against proper be enforced Bank’s units, Compass Compass was Bank/Brickman ties, despite benefiting of proper some the only the bidder sales and foreclosure took having ties in the never been included lien title to two of the units the redemption when having others statement and been released periods subject expired, only to the claims of Brickman; it settlements with and remanded senior The third unit un- lienors. remained apportion for equitable directions an negotiation der purchase for at the time of ment outstanding of the amount of the debt trial in this case. on the contract. was of Brickman too relieved the Bank- permits a Because Colorado law mechan- ruptcy stay, proceeded and it also with its ics’ lien to and include be enforced foreclosure action. Because some of the more than one but fewer than all of the units listed in its lien units in were which properties benefiting under the same con- Compass interest, an had Brickman amended tract, long proper apportionment as aas of join pleadings Compass its as a defendant. made, judgment the debt can be the of the trial, Before the units in five Anthem part. court appeals of is affirmed in To the Compass no had interest were released however, extent, appeals’ of court Brickman, sold, they in exchange were directions for fail to account portion outstanding obligation some of the on for all benefiting properties, judg- of the its Therefore, trial, the contract. at the time of ment is reversed. only units encumbered Brickman’s (or lien were the three units owned fore- I. closure) by Compass Bank. August Group, The Brickman Ltd. lien, At of filing the time its Brickman lien, describing recorded a mechanics’ $182,659. unpaid By claimed an balance of community common of a areas residential trial, July time of Brickman had project contiguous nine housing and units. $102,448. By its recovered an additional own later, Two months filed suit calculations, including unpaid on the interest Communities/R.G.B., developer, Anthem amount, $158,891 against Brickman claimed earlier, years LLC. or four Some three properties. three remaining Compass At predecessor Brickman its and interest had trial, Compass' conceded that Brickman’s me- entered into contracts with Anthem and had chanics’ lien senior to own deeds of its was begun providing labor and materials trust, validity and contested phase pro- common of the areas first enforceability single of a mechanics’ lien ject, which included the main entrance and one, claim more than but fewer than 48 town and manor At the time homes. all, lien, benefiting under the Brickman its 21 of the 48 units filed unsold, by agreement, remained Anthem contract. however, permitted, have also accepted factual as- Our statutes district court buildings, single lien claim all such judgment and entered parties of the sertions structures, improvements (together or other Brickman’s Compass Bank. It declared they ground upon which are situat with the invalid, though a reasoning that even lien ed), or cost or value of the labor materials is some- person supplying labor readily definitely cannot be materials single describing file a times entitled to case, in that all of the apportioned; and single benefiting under a all of the improvement, one improvements are deemed lien, entire cannot file a for the he situated, they one and the land on which are contract, against than fewer balance Although does tract of land. Id. the statute Briekman benefiting properties. all of the term, not define or use the such liens reversed, appealed. The court pieces property purport to cover several statutory scheme holding that the Colorado referred to as one statement have been permit a mechanics’ construed to has been B.F. Inv. Co. v. “blanket liens.” See fewer than describing more than one but Co., 401, 403, P. Lumber 77 Colo. 237 Salzer benefiting properties from work all of the (1925). 162, 163 contract, single long as as pursuant to a done equitably appor- value of the work can be jurisdic of other Unlike a number tioned; further, equitable apportion- and that ITC, 487, tions, long P.2d at we have see 796 in this case. possible ment was (and construed our mechanics’ lien statutes liberally, according particular) this section II. principles, Buerger, 77 equitable see Colo. right to a mechanics’ lien is 164-65, 406-07, P. at for the benefit at 237 Independent wholly a creature of statute. protection and of mechanics and material- Miller, Inc., Corp. Hudson, Trust v. Stan 213, men. Darien v. 134 Colo. (Colo.1990)(“ITC ”). 483, than (1956). For more P.2d 519 We have held that century, permitted a Colorado statutes have reasonably, liberally, eq construed and when 38-22-103(4) filing separate lien claims on each of uitably, provides a section structures, buildings, or other im ability several options, based on his claimant various materials provements for which labor and apportion the value of his work. The contract, single intended, however, provided were under a to force statute was proportion apportion to the value of the labor and claimant to choose whether to or particular lien, pay furnished for the struc and later for even a materials file a blanket Liens, losing improvement. or See Mechanics mistake of fact or his ture harmless law (cur 407, Buerger, at P. Laws whole lien. 77 Colo. 1899-1901 Colo. Sess. (2004)).1 38-22-103, rently 165.2 section performed provides: and als had been furnished labor

1. Section structures, buildings, or other for each of said any any person Whenever furnishes laborers or improvements separately; but if the cost or labor, performs any materials or tion, construction, for the erec- labor, laborers, materials can- value of such or to, alteration, addition or readily definitely ap- and not be and divided structures, buildings, repair of two or more or among buildings, portioned the several struc- they improvements, and other are built when tures, improvements, or other then one lien person under the constructed the same made, established, may claim be and enforced person same it is lawful for the so structures, buildings, or other all such furnishing per- laborers or materials or such together ground upon improvements, with the forming labor to divide and such situated, may the same be and in such structures, among buildings, or other same article, purposes of the all such case for the proportion improvements to the value structures, buildings, improvements shall and the laborers or materials furnished for structure, building, improve- be deemed one upon performed or for each of said labor ment, and the land on which the same are structures, improvements buildings, or other tract of land. situated as one her lien claim therefor a and to file with his or apportioned by plaintiff so statement of the amount asked for in er- "The construction structure, improve- game building, or other each ror would make the transaction like merely misplay brings disaster ment. This lien claim when so filed cards where provisions misplay. article in it is a There has been too enforced under the of this because construction of the Meehan- or materi- much of sort of the same manner as if said laborers understanding, contract Consistent with and described more than one but always sought to avoid a needless we have fewer than all of benefiting inequitable loss of a mechanic’s or mate- under the ap- contract. While the court of security Although rialman’s interest. a lien peals clearly conclusion, reached this same clearly property cannot attach to other than erroneously rejected as dictum our statement statement, that mentioned the lien see in ITC that “a upon blanket mechanics’ lien Boyd, Perkins v. 37 Colo. 86 P. 1045 several for materials and labor (1906); see also First National Bank in Fort benefiting properties may not be en- Son, Inc., Collins v. Sam McClure & forced less than all of the (1967), Colo. 431 P.2d 460 where a claim showing the absence of some proper single proper ant has chosen to file apportionment.” ap- That court’s confusion ty, though multiple properties even were pears to have arisen misreading both from its benefited under the same contract and the Buerger position to endorse a that it actu- value of the work cannot be ally rejected, and from its treatment of the them, we have held that the entire segregated, single-property liens Perkins debt on the contract can nevertheless be and McClure as “blanket liens.” single prop recovered from the encumbered former, regard With the court of erty, long as the debtor holds the sole attributed to the conclusion properties benefiting interest in all of the permitted, “where a blanket lien is each contract. under the Id. part is liable for the whole lien even Similarly, where a claimant has cho Brickman, subsequent purchasers.” lien, sen to file a blanket we have held that (quoting Buerger, at 1170 77 Colo. at the failure to show that claim cannot the be 164). Although P. at we found such a solu apportioned is not a defect in action itself problem releasing proper tion to the of some merely goes availability but to the of relief. preferable ties from a blanket lien holding 405-07, Buerger, at P. Colo. at part all,” that “a release of releases ulti we long support any 164-65. As as there is rejected mately approaches both in favor of lien, kind of the court is not barred from allowing a blanket lien remaining allowing segregated a lien or liens properties, crediting equitable por “after an property. each Id. If a claimant chooses in any properties. tion” to Buerger, released good faith to file blanket lien on more than Colo. at 237 P. at 164. improvement, one structure or and it turns apportionment possible out that an is after latter, regard And with the court of all, may equitably appor the court therefore quoted proposi- misunderstood the tion the in debt its decree. Id. tion from rulings ITC to conflict with our of McClure, describing Perkins and a circum- Naturally enough, it follows that a in stance which the entire contract debt could merely blanket lien is not rendered invalid single, be from a recovered encumbered properties, because some of the covered ben property, despite proper- the fact that other efiting under the same are released ties also benefited under the contract. While may from the lien. See id. The lien still be may expressly it have been clearer to limit remaining properties by enforced general rule articulated in ITC —that crediting equitable portion an of the value of may blanket mechanics’ lien not be enforced provided labor and materials under the con properties. benefiting proper- tract to the released Id. For the less than all of the reasons, describing same showing blanket ties in proper the absence of some of (from filing) the moment of its fewer than all apportionment involving blanket liens —to properties benefiting of the under the same other than those owned invalid; contract does not render the lien it himself, (as any of debtor free other interests simply availability affects the of relief. ITC), actually was the case in in no event quoted proposition could the conflict with our The district court therefore erred de- McClure, holdings in claring solely Perkins and because invalid Brickman’s lien because unpaid it they recoverability claimed the entire balance of the addressed the un- Law, ought go Buerger, ic’s Lien and it no farther.” at Colo. 237 P. of, apportioning the value of work Equity in the absence of a contract paid balance (and single contract therefore done under a lien. upon, a blanket rather than remaining equity apportioning the debt on rule, general To the extent contract) necessarily depends upon the ITC, necessarily implies that restated the structures or proportion which each of upon showing liens are enforceable blanket work done un properties benefited from the against fewer than proper Although liens the contract. mechanics’ der only it benefiting properties, all of the protection and maintained for the are created law, actually but an accurate statement materialmen, of mechanics and and benefit case. of this controls the outcome single done under a con the value work according to cannot tract be III. fact, lienor, in law or in capacity of the per- was not fact that labor The mere the lienor’s recover his entire debt. While on, provided materials were not formed to include some but not good faith decision structures, to, or other specific buildings, properties benefiting under a con all of the course, not, of mean that improvements does tract, properties, certain does or to release by the contract or they were not benefited lien, clearly may a blanket not invalidate materials value of the labor and remaining extent to which the debt affect the appor- cannot provided under the contract remaining can from the encum be recovered Perhaps quintes- See, them. e.g., tioned properties. CS & W bered apportionable (lienor value example of such sential could extract Contractors 4/52nds roads, improvements to the original in a contract for for work on exists value of contract sewers, benefiting of a condominium. Where lines 52-unit common elements and water subdivision, of land and unless he could show that more common elements are areas condominium, value was received the four units included comprising the improvements lien). in his blanket Ownership in the Condominium as defined Declaration, in each unit owner owns Similarly, later or encum while sales fractional interest and shares an undivided parties recast the interested brances non-exclusive, joint possession with all other priority alter the nature and of their inter owners,3 proportion unit the which each ests, they change proportion in cannot the to com- by improvements unit benefits perform properties which the benefited from Supply mon is clear. See Plateau elements See, e.g., of the contract. Brunzell v. ance Corp., Colo.App. v. Meadows 31 Co. Bison 395, Lawyers Corp., Title Ins. 101 Nev. 705 (1972). 205, planned 500 P.2d 162 Even (1985) (where attempted to P.2d 642 lienor in which individ- communities or subdivisions entirety of lien unsold 36 units collect property ual owners do not own an undivided condominium, only it could enforce of 72-unit elements,4 each); fractional interest common Stevens of contract 1/72nd however, improvements that Hall, Inc., the value of Corp. Draper v. Constr. Wis.2d community (1976) as a whole still 104, benefit the (allocating 242 N.W.2d 893 l/35th comprising apportionable among the units eight of total contract amount to each condominium). community, under some circumstances. already sold in 35-unit units Contractors, See, Inc. v. e.g., Statutory provisions relating CS & W South liens mechanics’ Assoc., 180 Ariz. west Sav. & Loan to the time of the commencement back (1994) (basic infrastructure, P.2d 404 such as work under a contract between the owner lines, contractor, 38-22-106(1), roads, equally and water benefit and first see section sewers subdivision). (2004), clearly designed pre- to of a C.R.S. are the individual lots Hills, Cherry ownership recognized Cheiry P.2d Hills Resort Dev. v. 3. Condominium is (Colo.1990)). governed by statute in Colorado. See Condomin Act, -113, §§ Ownership ium 38-33-101 to before, (2004). pointed As we have out agree parties that the unit 4. The in this case now “very requires a definition of condominium areas, although do not own the common owners of an undivided interest common the existence appeals apparently court believed other- Assoc., elements." Trailside Townhome Inc. Brickman, 83 P.3d at 1171. wise. See Acierno, (Colo.1994) (citing interest, priority proportion serve the of the mechanic’s by the value received each notwithstanding subsequent sales en- and file with the lien claim a statement of the cumbrances; failure, including (2) even a each; but apportioned amount so or where legal inability, appropriate por- to collect an possible, is not file a blanket unpaid tion from sold or debt other- all the involved wise encumbered cannot increase entire cost or value owed. Because the lien enjoyed by remaining proper- the benefit filed Group comply Brickman failed to ties. statutory either of these two require- ments, I conclude that Brickman’s lien is remand, On the district court must invalid and is therefore equita- not entitled to and, so, if precisely determine whether how Hence, ble respectfully enforcement. I dis- equitable apportionment an can be made of sent. performed the value of the work under the principles consistent with the out Discussion opinion. lined in this Because the district single Brickman erroneously filed lien claim for the court found Brickman’s lien in action, unpaid valid entire contractual and dismissed Brickman’s balance only inadequate record before this court is some of which benefited such a determination.5 To the extent developer. its contract with the The appeals apportion the court of directions for properties charged with its lien included nine remand, however, suggest ment on that the units and the common of forty-eight areas unpaid amount of the contract claimed properties. benefited Brickman’s lien did Brickman in apportioned its lien must be owed; divide and the amount it among the 21 units remained unsold at did not contain a statement of the amount filing, the time of those directions are incon properties liened; opinion sistent with this and are therefore against only portion was asserted of the Instead, rejected. remaining debt can be properties benefited. Brickman’s lien thus remaining recovered from the encumbered “hybrid” was a complied lien because it all, properties, to the extent that some, all, requirements but not of the of each actually per each benefited from the work type alternative of lien under subsection 38- formed under the contract. 22-103(4). Hence, hybrid lien failed to satisfy requirements statutory of either IV. alternative. judgment of the court of 38-22-103(4), Under subsection when part therefore affirmed and reversed in person performs any upon, labor or furnishes part, attempt and the case is remanded an for, prop- laborers or materials two or more equitable apportionment outstanding person erties under the same debt. apportion must either and [the value] “divide [properties] proportion to the BENDER, dissenting. Justice ... ... value for each and ... file with his person asserting A a lien claim for work or her lien claim therefor a statement of the performed upon, or laborers or materials each,” or, apportioned amount “if so to for, provided buildings, two or more struc- readily ... cost or value cannot be and defi- tures, improvements (properties) or other nitely apportioned divided ... and then one comply under the same contract must with made, established, may lien claim be and ways one of the two alternative of filing such [properties].” enforced all such 38-22-103(4), a lien under subsection view, (2004), my In filing a claimant a lien for perfect to a valid lien. The claimant (1) performed upon, work or laborers or materi- apportion must either: divide and for, properties als value of the materials or laborers furnished furnished two or more for, performed upon, required or labor under the same contract is to corn- orders, light apparent change even the remains unclear. price performed contract for all of the work guage, the next sentence of the subsection alternatives to these two

ply with one of enforceable, valid, lien. of the expressly and thus conditions the enforcement assert a 38-22-103(4) uses the discretion- compliance Subsection with divid- lien on the claimant’s phrase “may” permissive and the ary term apportioning filing and a statement ing and describing these alternative “it is lawful” This sentence apportioned amount. of the However, the use of filing a lien. means of may claim when so be states: “This lien filed not mean discretionary language does added). Thus, (emphasis a lien ...” enforced required comply to is not that a claimant may be asserted under this first alternative statutory alternatives. of the two with one claimant first asserts enforced after the Instead, permissive language in I read statutory complies lan- a lien which (4) allowing a claimant to as subsection (4). majority reads guage of subsection types the two of liens which one of choose statutory permitting mandate en- out this Hence, asserting a lien a claimant assert. though even no lien was “so filed” forcement upon, or laborers or performed for work by Brickman. for, proper- two or more materials furnished alternative, where the Under the second contract must either ties under the same divisible, readily a claim- cost or value is not apportion and file statement divide and prop- “all” the the amount ant must assert lien prop- all the or assert the lien liened may lien be enforced. erties before erties involved.1 38-22-103(4) provides that “one Subsection made, established, may and claim be 38-22-103(4) as re- Treating subsection properties]” (empha- [the all comply with one quiring a claimant enforced added). and “estab- with this sis The terms “made” two alternatives is consistent these creation, as previous reading bringing of this subsection into court’s lished” refer to the filing a valid lien. creating “requirements” existence, of a lien. Webster’s New See B.F. Salzer Lumber Inv. Co. v. (3rd Dictionary College World (1925) Co., 401, 404, P. 77 Colo. ed.1996) (defining bring “make” as “to into (concluding claimant’s work “was that where defining and “establish” specified condition” on all the under one contract to be done about”). happen; bring “to cause to be or houses, satisfy re- sufficient to that is Assembly’s use of Based on the General subsection 38- quirements [predecessor the creation of a lien words describe 22-103(4) requirement no ... ... find ] [w]e instance, legislature first must have except must be one contract all that there against all intended a valid lien be asserted lots, must such as that the lien and may that lien involved before readily definitely appor- not to be and in certain contexts this be enforced. While ”) added); (emphasis Independent tioned “or,” I interpreted has “and” to mean court Inc., Miller, Corp. v. Trust Stan interpretation that such an do believe (“ITC ”) (Colo.1990) (construing sub- specific appropriate here because of the quoting, ap- section i.e., Assembly, terms used the General proval, Buerger: “the claimant “made,” “established,” “enforced,” impossible, he possible; where specific placement of these because [against all the spread must his blanket (4). Both the General terms subsection added). properties]”) (emphasis Assembly’s past and its use of the tense Further, plain language of subsection placement “made” and “estab- of the terms 38-22-103(4) comply requires that a claimant (terms lished,” referring to the creation a to assert one of the two alternatives lien), bringing into of a before the existence enforceable, valid, lien. A lien and thus legislature term “enforced” indicate that claimant first alternative of sub- under the validly against a made intended that lien be (4) apportion the section must divide and may properties before it be enforced. all the properties and file with the among value common of the terms reflects the The order appor- of the amount lien claim a statement possess legally a Following principle lan- that one must property. tioned to this each any, against properties, stating those which were lien must be asserted filed 1. In that the blanket already by the claimant. properties, lien need not be released "all" the

963 case, a cognizable right Similarly, “description this valid lien property —in right may charged that be enforced. to requirement claim—before be with the lien” of (4) context, Thus, in corresponds subsection should be section 38-22-109 to the re requiring 38-22-103(4) quirement read as that a valid lien be asserted under subsection all the involved before that the claimant assert its lien “all” may properties. such a lien be enforced. See Everitt A property description is 38-22-109(l)(c) adequate Lumber v. Prudential Ins. Co. Amer- Co. under section if it of ica, 925, (Colo.App.1983)(noting 926 identify” property. 660 P.2d is “sufficient to See long history requiring Quiros Colo., of Colorado courts McIntire & Westing Inc. v. of “statutory provi- 398, Corp., 401, strict construction of those house Colo.App. Credit 40 (1978). right 1026, upon sions which the to the existence of 576 requiring P.2d In depends”). the lien that a claimant assert its blanket lien properties, all the subsection 38-22- addition, asserting a claimant a lien 103(4) only requires that the claimant 38-22-103(4) required under subsection is to identify properties charged specifies but comply with one of the two alternatives be- identified, i.e., must be so fore its lien be enforced because the “all” of Again, statutory them. because this requirements pertain under this subsection 38-22-103(4) requirement under subsection perfecting perfect lien. To a lien of to, corresponds actually specific and is more any type, comply a claimant must with the than, requirement under subsection 38- 38-22-109, requirements of section 22-109(l)(c) perfecting general, for a lien in (2004), portion of the mechanics’ lien I believe that the second alternative of sub pertaining perfection of a statute lien 38-22-103(4) heightened section creates a § general. (“Any person See requirement perfecting for a lien for labor wishing provisions to use the of this article performed upon, or materials or laborers shall for ... a file record statement contain- for, furnished two or more under ing requirements of subsections 38-22- [the the same contract. 109(l)(a) (l)(d) ]”); Seifert, Stephen W. — Colorado Creditors’ Re- compliance Remedies—Debtors’ Because with one of the two (1990). 4.33, § require- at 214-16 required perfection álternatives is for of a lief perfecting 38-22-103(4), ments for a lien under section 38- lien under subsection a lien include, others, comply necessarily 22-109 that the claim- which fails to so invalid “description property ant file both and therefore unenforceable. Kalamath (subsection Co., 109, charged Asphalt with the lien” Paving 38-22- Inv. Co. v. 153 Colo. 109(l)(c)) (“The (1963) and a “statement of -the amount existence (subsection owing” due or the claimant presumed 38- of a lien ... is not [mechanics’] 22-109(l)(d)). ... claimant show that he has [the must] complied require- with all the essential comply To with both sections 38-22-109 ments the statute under which he claims.” 38-22-103(4), asserting a claimant a lien 308)); § (quoting 57 C.J.S. Mechanics’ Liens under the first alternative of subsection 38- Co., (deter- Everitt Lumber 660 P.2d at 926 22-103(4) must file not “statement mining lien to be unenforceable where claim- due,” the amount but a “statement of the strictly comply statutory ant failed to apportioned” property. amount so to each lien); perfecting Sprague section for requirement Because this under subsection Co., Inv. Lumber Inv. Co. Mouat & 38-22-103(4) corresponds requirement (1899) 107, 121, Colo.App. P. 38-22-109(l)(d) filing under subsection (“The exactly one who claims the must owed, actually statement of the amount but initiating perfect- observe statute i.e., requires specificity, “appor- more an ing right.”). his because Brick- Accordingly, amount, tioned” I read the first alternative as comply man failed to with either alternative creating heightened requirement per- (4), I lien is of subsection conclude its fecting performed those liens filed for work both invalid and unenforceable. for, upon, or or materials laborers furnished Although majority two or more under the same con- admits that Brick- tract. man failed to assert its lien all the 964 Buerger plain language nor the to divide and Neither

properties involved and failed majori supports subsection 959, majority, maj. op. at apportion, see ty’s of Briekman’s equitable enforcement principles to Buerger, applies equitable citing Buerger, In the court first determined lien. agree I with the lien. While enforce the lien was valid that the claimant’s blanket long ap- have majority that Colorado courts equitable ap before it considered whether principles to construe liberal- plied equitable appropriate. 77 at portionment was Colo. in favor of lien ly the mechanics’ lien statutes 406, (stating, sold for “[I]t 237 P. at 164 was claimants, 958, maj. op. at this see liberal purpose, one on one on one set ap- of the statute has not been construction lien.”) (em buildings permits .... That one and, view, my not plied across board added).3 phasis to Brickman failed appropriate here because Further, equitable of Brick- enforcement lien. See Schneider v. J.W. perfect a valid because, appropriate unlike man’s lien is not (Colo. 329, Co., 715 P.2d Metz Lumber Buerger, Brickman did not the claimant 1986) (“Colorado long courts have held “good apportioning faith” choice of make a derogation [is in] the mechanics’ lien statute but, rather, filing a blanket lien failed to strictly law is to be [and] of the common comply express statutory require- with determining to a construed in who is entitled In applicable ments to either alternative.4 lien.”); Brannan Sand & Gravel Co. v. view, my non-compliance Brickman’s with ex- F.D.I.C., 1337, (Colo.App.1996) 928 P.2d press statutory language interpret- cannot be (“The strictly lien statute is to be mechanics’ “good attempt ed as a faith” to assert a valid respect to those acts neces- construed circumstances, lien. these I believe Under liberally sary perfect the lien and con- apply equitable princi- not this court should respect to the benefits accorded strued with ples to construe the mechanics’ lien statute lien.”), properly perfected rev’d on other v. favor of the lien claimant. See Salzman grounds,2 Because a mechanics’ lien is a (Colo.2000) Bachrach, 1263, 996 P.2d ITC, 487, statute, at creature of see 796 P.2d (describing, general, the doctrine that “one equitable of such a lien is enforcement equity equity”).5 Any who seeks must do only appropriate where it is first determined inequities thus result to Brickman claim was made in accordance that the lien my interpretation of the statute stem statutory language with the which created express from its own failure to adhere to the right place. statutory language asserting that lien in the first for its lien.6 to assert least, "good initially, Painting Peregrine at filed in 2. also Mtn. v. Joint faith” and was See Powder Venture, 279, compliance statutory requirements (Colo.App.1994); with the 899 P.2d Rademacher, 38-22-103(4). Plumbing Heating, predecessor to subsection Richter & Inc. (mechan- (Colo.App.1986) 729 P.2d reasons, "strictly disagree ics' lien statute is to be determining construed 5. For these same I with the exists"). right majority's whether the to lien characterization of Brickman’s im- being properly asserted blanket lien as a "mis- ITC, (before play.” maj. op. Filing 2 liens, at n. 2. a lien 3. See also 485 n. complying express statutory considering enforcement of mechanics’ while not requirements creating perfecting re- for court noted the trial court's determinations but, rather, garding validity misplay “[The of the liens: mechan- lien is not a a violation of principal express statutory language. ic] had a valid mechanics’ lien in the added).). (emphasis ...” amount of Buerger, equitable appor 6. I also note that under Buerger, that where the should be allowed where the court the court concluded tionment "good equitable parties.” 77 Colo. at claimant had chosen in faith” to file a "deems it to all added). (emphasis 237 P. at 165 Where blanket lien all the unreleased so," against only proper selected and had his statement he should claimant files lien "ma[d]e owed, inequi even ties for the entire amount it seems "turn[ed] lose his entire lien out” owners, possible equita properties' selected who are that an was table 165; effectively parties. themselves ble to all 77 Colo. at 237 P. at forced to defend amount, ITC, "good unpaid (quoting see also 796 P.2d at 488 the lien claim for the entire equitably the lien for the faith” choice of claimant to or file the court to enforce comply properties). all Unlike the of the lien claimant who failed blanket lien benefit here, express statutory language asserting circumstances thus concerned the with the in the first instance. enforcement of a claim which was asserted that lien addition, majority’s I that the hold note express require ing superfluous makes 38-22-103(4) that the

ment under subsection ap

claimant file a statement of the amount

portioned with or her lien claim. Brick- his

man to divide and the value failed of an

owed and failed to file statement apportioned property. By to each

amount

directing equitably appor trial court to lien, majority superfluous

tion this makes statutory express requirement that a

statement of the amount be filed initially claimant its

at the time the files lien.7 words, performing

In other court is legislature specifically

task the directed the

claimant to do. I would avoid such a statuto

ry Durango v. construction. See Widder 9-R, (Colo.

Sch. Dist. No.

2004) (interpretations rendering statutory avoided).

provision superfluous should be

Hence, respectfully I dissent. JIMINEZ, Petitioner,

Maxie

INDUSTRIAL CLAIM APPEALS OF COLORADO,

FICE OF the OF STATE Assurance,

Pinnacol Amax Project, Respondents.

Henderson

No. 02CA2283. Appeals,

Colorado Court of

Div. II.

Sept. 2003. Again, statutory equita- complied the court in allowed for blanket lien and had language ble where the claimant had at of former subsection "good asserting type least made a faith” choice to assert of lien.

Case Details

Case Name: Compass Bank v. Brickman Group, Ltd.

Court Name: Supreme Court of Colorado

Date Published: Mar 7, 2005

Citation: 107 P.3d 955

Docket Number: 03SC632

Court Abbreviation: Colo.