### No. 81-81 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982

CLIMATE CONTROL COMPANY, INC., a Corporation, Plaintiff and Appellant,

BERGSIEKER REFRIGERATION INC

# ., et al., Defendant, Respondent and ThirdParty Plaintiffs.

Appeal from: DistrictCourt of the Eleventh Judicial District, In and for the County of Flathead Honorable JamesM. Salansky, Judge presiding. Counsel of Record: For Appellant: S. Y. Larrick, Kalispell,Montana For Respondent: Hash, Jellison,OIBrienand Bartlett, Kalispell,

Montana Murphy, Robinson,Heckathorn and Phillips,

Kalispell,Montana

Submitted on briefs: October 9, 1982 Decided: February 1, 1982 Filed:

# FE5 I 

# -1982 

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### Clerk

### Mr. Justice Fred J. Weber delivered the Opinion of the Court. Climate Control brought an action for debt and for foreclosure of a mechanic's lien. Following a motion for summary judgment, Climate Control presented an extensive written offer of proof with proposed exhibits. The District Court of Flathead County awarded summary judgment to Arrowhead, Inc., holding that Climate Control did not create or have a valid mechanic's lien, and Arrowhead, Inc., was awarded reasonable attorney's fees and costs of suit to be determined by the DistrictCourt. We affirm the holding that a valid mechanic's lien was not created. The key issuewhich determines the case is whether the DistrictCourt erred in holding that the claimed mechanic's lienwas invalid because the affidavit in the claim of lien

was not legally sufficient. We will briefly refer to the other issues which are not controlling. Climate Control is a distributor of airconditioning equipment. Bergsieker is a dealer in airconditioning equipment. Climate Control entered into an agreement with Bergsieker for the sale of various airconditioning equipment to be installed by Bergsieker in the Outlaw Inn owned by third party defendant, Arrowhead, Inc. Climate Control contends it received no payment from Bergsieker for such equipment furnished to the Outlaw Inn, and contends there is in excess of $30,000.00 owing. On November 6,

### 1974, Climate Control filed a claim of lien and statement of account in the office of the Flathead County Clerk and Recorder. Inpertinent part, the claim of lien and statement of account said:"That Climate Control, Co., Inc., a Washington corporation duly authorized to transact business within the Stateof Montana, did, between September, 1973 and the 7th day of August, 1974, furnish certain cooling and heating equipment and supplies and related and associatedmaterials



# . . . That there 

### isdue, owing and unpaid to this claimant the 

### sum of $29,868.00 on account of the equipment, supplies and materials so furnished. 

# . 

# . "That a statement of account of said equipment, supplies and materials 

### is hereto annexed as exhibit 'A' and by this reference made a part hereof. 

# . . "That the sum of $29,868.00, together with interest atthe legal rate is now justly due and owing tothis claimant after allowing all offsets and credits. 

# .. (a description of real properties included)." The verificationby affidavit stated inpertinent part: "State of Montana ) 

### 1 SS. "County of Flathead ) "Donald J. LaPlante, being firstduly sworn deposes and says: That he 

### is the Treasurer of Climate Control Company, Inc., the claimant named inthe foregoing claim of lienand statement of accounts; that said account contains a just and true account of the amount due said claimant for equipment, supplies and materials furnished, after allowing allcredits and offsets; that said claimant's statement contains a correct description of theproperty tobe charged with said lien; and that-allofp the facts stated in 

### ---- said claim and statement aretrue tothe best - -- - -- - - - -- 

### ----- of his knowledge, information and belief." 

### -- (Underscoringadded.) Attached tothe claim arecopies of invoices from Climate Control. From the invoices it appears that various described equipment was furnished between September, 1973 and August 7, 1974. The filing date of November 6, 1974, 

### is the 91st day following the stated final date for furnishing of airconditioning equipment. Section 71-3-511, MCA, requires that a mechanic's lienbe filedwithin 90 days after the materials have been furnished. In ruling on themotion for summary judgment by defendant, Arrowhead, the DistrictCourt concluded that summary judgmentshould be entered inasmuch as Climate Control's notice of lienwas not filedwithin 90 days of the end of the period inwhich the notice asserts that the materialswere furnished, that the notice was not amended within the time period during which a lien could be filed, and that the affidavit incorporated in such lien 

### is not legally sufficient, and, therefore, stated in

### itsjudgment: "1. That Arrowhead is awarded summary judgment thatplaintiff (ClimateControl) did not create a valid lien and does not have a lien against the described real property.

"3. Arrowhead is entitled toreasonable attorney's fees and its costs of suittobe paid by plaintiff Climate Control and court reserves jurisdiction toconduct a hearing todetermine such fees." The issue as to the sufficiency of the affidavit attached tothemechanic's lien claim 

### is determined by Saunders CashWay, etc. v. Herrick (1978), 179 Mont. 233, 587 P.2d 947. Climate Control attempts todistinguish Saunders by arguing that the affiant did positively statethat the account contains a just and true account of the amount due and that it also contains a correct description of the property, which are the essentialrequirements under section 71-3-511, MCA. A carefulreading of the verification answers this contention. It is true that the affiant states that the account contains a just and true account and that the statement contains a correct description of the property. However, those positive statements arequalified by the lastportion of the verification inwhich the affiant stated: 

# ".

. . - and that allof the facts stated in said claim and statement are 

### ---- -- true tothe best of his knowledge, information and belief." 

### ------ That qualifying statement clearly 

### limitsthepreceding "positive" statements so thatwe must determine the sufficiencyof a verificationwhich states that the factsaretrue to the best of an affiant's knowledge, information and belief. Saunders 

### isdirectly comparable to the present case. The verification in Saunders, which was determined by this Court tobe insufficient, stated inpertinent part: 

# ".

. . that thematters and things therein set forth aretrue (tothe best) of his knowledge, (information and belief)." With the exception of the use of parenthesis, which is not significant, thewording is almost identical tothe verification inthe present 

### case. In explaining why a positive affidavit 

### isessential, this Court in Saunders, 179 Mont. at236, 587 P.2d at949, stated: "Such a requirement is necessary because of the extraordinary right imposed by themechanic's lien. Once the lien 

### isperfected, 

### it has priorityover any prior lien, encumbrance ormortgage upon the land. Section 45-506, R.C.M. 1947. [Now 71-3-502 (3)

## , MCA. ] This extraordinary claim should not be placed on the property of another unless the facts outof which the lien arises arevouched for on oath by some person who knows them to exist. Globe Iron Roofing & Corrugating Co. v. Thatcher (1889), 87 Ala. 458, 6 So. 366, 367. The sanction of perjury insures the veracity of the statementsmade by the person with knowledge. Thus 

### a test of the sufficiency of the affidavit toa mechanic's lien iswhether perjury 

### is assignable upon the verification to

### it. Gregg v. Sigurdson (19231, 67 Mont. 272, 215 P. 662, 663." In pointing out that theverification statementwas not equivalent toa declarationunder oath that thematter istrue, thisCourt inSaunders, 179 Mont. at237, 587 P.2d at949, stated: "This Court has stated 'that an affidavit soworded is inno sense equivalent to a declaration under oath that the matter contained therein is true.' Rogers-Templeton Lumber Co. v. Welch (1919), 56 Mont. 321, 184 P. 838, 840. If the items contained inthe statement 

### were infactfalse, R. A. Saunders could not be charged with perjury based on the verification 

### as it isworded."

### This Court in Saunders further emphasized that a verification must also be considered from the standpoint of the rules of evidence to determine if itmeets such standards. The Court stated at 179 Mont. at 237-238, 587 P.2d at 949-950: "The verification is insufficient in another respect. When a lienor asks the Court to enforce a mechanic's lien and foreclosure, the lienor is asking the Court to impose an extraordinary right upon the property involved. The lienor asks the Court to take such action based upon the complaint and accompanying affidavit as proof of the existence of the lien. Thus the complaint and affidavit in this situation 'mustbe considered from the standpoint of evidence and tested by the rules of evidence, rather than those of pleading and practice.' Benepe-Owenhouse Co. v. Scheidegger (1905), 32Mont. 424, 80 

### P. 1024, 1026. See, Fisk Co. v. Lanstrum (1934), 96

### Mont. 279, 30 "This consideration is particularly relevant in the present situationwhere the parties submitted stipulated facts to the District Court, including the notice of the lien and supporting affidavit,and upon this proof asked for a decision. If the allegations contained in the notice and affidavit are made positively and sworn to as of the affiant's own knowledge, there is no apparent reasonwhy they may not convince a court of their truth. Benepe-Owenhouse Co. v. Scheidegger, supra. 

### 'If the allegations, however positively made, are sworn to only upon information furnished to the affiant by some third person, then they aremerely hearsay, and ought not to have been given any evidentiary value, for the evidence necessary to move the [court]must be legal evidence.' Benepe-Owenhouse Co. v. Scheidegger, supra.I' 

### As in Saunders, it cannotbe ascertained here from the affidavit of Mr. LaPlante what portion of the facts is declared upon his own knowledge,what portion upon information furnished from other sources and what sources thosemight be, what portion is upon his mere belief, and what portion may be a deduction from facts and circumstances as they appeared to him. Such an affidavit is insufficient and will not support a claim for a mechanic's lien.Climate Control submitted an extensive offer of proof which included facts claimed to support their contention that equipment had been furnished within the 90 days prior to the filingof the claim of lien so that the error indate contained in the lien claim should not be enforced against them. While the facts and the law might justify a court in disregarding such an error indate, because of our holding

on the verification question, thismatter 

### willnot be considered. Weaffirm the summary judgment for the defendant, Arrowhead, Inc.

WeConcur: