### No. 80-283 IN THE SUPREME COURT OF THE STATE OF MONTANA

GENERAL ELECTRIC SUPPLY COMPANY, DIVISION OF GENERAL ELECTRIC COMPANY, A 

### CORPORATION, Plaintiff and Appellant,

GARY V. BENNETT and HAROLD E. GERKE, et al.

## , Defendants and Respondents.

Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, Montana Honorable Diane Barz, Judge presiding. Counsel of Record: For Appellant: Fred 

### N. Dugan,Billings,Montana For Respondents: Stacey & 

### Jarussi,Billings,Montana

Submitted on briefs: January 8, 1981 Decided: April 15, 1981 Filed:

## BQR1.51981

II I Y P 

### ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court.

Plaintiff General Electric Supply Company (General Electric) appeals from the order and judgment entered by the DistrictCourt of the Thirteenth Judicial District, Yellowstone County, granting summary judgment to the defendants (owners) after cross-motions for summary judgment had been made. The order and judgment invalidate General Electric's mechanic's lienon certainproperty of the defendants. The sole issue involved inthis appeal 

### isone of law: 

### Is the description of the subjectproperty, which description 

### is contained 

### in the notice of lien filedwith the county clerk and recorder, legally sufficient to identify the property forpurpose of enforcing the lien? We hold that the order and judgment of the DistrictCourt should be reversed, and summary judgment should be entered infavor of appellant General Electric. The appeal has been submitted on an agreed statement of facts. The quotes which appear inthe following description of facts are taken from that agreed statement. The owners caused a building tobe constructed on their following-described property: The South 90 feetof Lot - 9, Block 1, of Valley ViewAcres Subdivision, in the City of Bill-ings, Yellowstone County, Montana. General Electric sold electrical supplies to the electrical subcontractor on the job. On February 23, 1978, and within 90 days after the lastof the electrical materials was supplied, General Electric filed a notice of itsmechanic's lienwith the county clerk and recorder. "The notice states that the reputed owners of the lands and premises and the office building located thereon

### were Gary V. Bennett and Harold E. Gerke, d/b/a Bennett & Gerke, that the reasonable value of the building materials furnished by claimantwas inthe sum of $14,173.37, and that theproperty to be charged with the lien 

### is the 'office building' located on Lots 7 and 8 inBlock 1of Valley View Acres Subdivision and the lands 'hereinbefore described on which said building 

### is situated'. The invoices attached asexhibits to the notice each referred variously to the applicable charges as for: 'Bennett Office Building'; 'Bennett Office'; 'Bennett'; or 'Bennetts'. As emphasized above, the building was actually located on Lot 9 not Lots 7 and 8." Agreed Statement inLieu of Record on Appeal, p. 2. Thereafter a portion of the supplieswas returned to General Electricunused. The remaining supplies, in the amount of $10,586.18, were actuallyused in the construction of the building. The owners substituted their bond in the remaining amount so as to discharge the lienon the property. "Suiton the bond inthemanner of foreclosure of Mechanic's Lien but reciting the substitutionof the bond was commenced on February 7, 1979 naming asdefendants the owners, theprime contractor, the subcontractor and the bonding company 

# .

# . . After the filing inbankruptcy by the subcontractor, his trustee inbankruptcy was substituted inhis place and default

### was entered against the trustee. The defendant owners answered counterclaiming for the cost of theirbond premium and cross-complaining against the prime contractor, Mora, for any judgment plaintiff might sustain 

# . .

# . [Tlhe issues concerning Mora, the prime contractor were severed for consideration after trial or determination of the issues between plaintiff and the defendant owners and bonding company on their respective motions for summary judgment." Agreed Statement in Lieu of Record on Appeal, 

### p. 3. The owners and bonding company moved for summary judgment, and filed a brief insupport of the motion. General Electric alsomoved for summary judgment, and filed a brief and supporting affidavits. The owners did not fileany affidavits in support of their own motion, and did not file affidavits or a brief inopposition to General Electric's motion. "The matter was then submitted to the Court upon crossmotions for summary judgment. Thereafter the Court entered itsOrder granting the defendants' motion for summary judgment and denying plaintiff's motion. A pre-judgment hearing was held inwhich due proof was made of defendants damages by way of bond premium cost and of the reasonable value of theirattorney's fees, whereupon summary judgment for the defendants was entered from which this appeal 

### is taken." Agreed Statement inLieu of Record on Appeal, pages 4-5. This appeal 

### is taken upon cross-motions for summary judgment. We agree that there 

### is no genuine issue as to any material fact, but

### wehold that the DistrictCourt erred in granting summary judgment to the owners. General Electric 

### isentitled to a judgment asa matter of law, and not the

owners. Rule 56(c),M.R.Civ.P. Section 71-3-511(1), MCA, prescribes the necessary steps tobe followed 

### inacquiring a mechanic's lien: "How to perfect lien. (1)Every person wishing to avail himself of the benefits of this partmust file, with the county clerk of the county inwhich the property or premises mentioned in 71-3-501 

### is situated and within 90 days after thematerial ormachinery aforesaid has been furnished or the work or labor performed, a just and true account of the amount due him, after allowing allcredits, containing a correct description 

### -- of the property 

### --- tobe charged wigh 

### -- such lien, verified by affidavit, 

## -- but any error ormistake inthe account

# or description does not affectthe 

### -- 

### -- validity 

### ----- of thelienif the property 

### -- can be identified by the description. The paper containing the account, 

### -- description, and affidavit 

### isdeemed the lien. When there 

### isan open account between the parties for labor, material, ormachinery, such lienmay be filedwithin 90 days after the date of the last

### itemin such account and include allitems and charges contained therein formaterial ormachinery furnished for, or work performed on, the property on which the lien 

### is claimed." (Emphasis added.) The above statute and 

### its emphasized portion have been construed by thisCourtmany 

### times. This Court has uniformly held that the requirements of the mechanic's lien statutes

astoprocedure 

### willbe strictlyenforced. Once the procedure has been fulfilled, the statutes

### willbe liberally construed

so as togive effectto their remedial character. Federal Land Bank of Spokane v. Green (1939), 108Mont. 56, 62-63, 90 P.2d 489, 491-492; Western Iron Works v. Montana Pulp & Paper Co. (1904), 30 Mont. 550, 558, 77 P. 413, 416.The property tobe described and towhich the lienattaches 

### is the building or improvement itself. ~arco-~ruden

v. Nelson (1979), 

## - Mont.

## , 593 P.2d 48, 50, 36 St.Rep. 704, 706. Based upon the above-stated rule of liberal construction, thisCourt has held that "if the description of the building itself 

### is sufficient to enable a person familiar with the locality topoint 

### it out as the only one corresponding with the description contained in the lien, 

### it 

### meetsallthe requirements of the statute

# . . .I' VarcoPruden 

### v. Nelson, supra; Midland Coal & Lumber Co. v. Ferguson (19211, 61 Mont. 402, 405, 202 P. 389, 390. In seeking todetermine if a party familiar with the locality can identify the property from the description, "whether a given description 

### is sufficientor not depends upon the surrounding circumstances, the character of the particular building, 

### its situation with reference toothers, etc." Midland 

### -- Coal & Lumber 

### - Co., 61 Mont. 406, 202 P. 390. Although the statutes extend the lienon the structure to the land itself, the land need not be described. Section 71-3-514, MCA; Federal 

## --- Land Bank of Spokane, 108Mont. 64, 90 P.2d 492. Often, a description of the land 

### isincluded

so asto further identify the particular structure. MorrisonMont. Maierle, Inc. 

### v. Selsco (19801, 

# - - 

## , 606 P.2d 1085, 1087, 37 St.Rep. 299, 301; Midland 

### -- Coal & Lumber 

## - Co., 61Mont. 405, 202 P. 390; Western IronWorks, 30 Mont. 556, 77 P. 416. Incases where the legal description of the land contained errors, thisCourt stated that "if, by rejecting what 

### iserroneous inthe description contained in the lien, enough remains to identify the particular property sought to be charged, the lien

### willbe upheld." Caird ~ngineering Works v. Seven Up Gold Mining Co., Inc. (1941), 

### 111 Mont.471, 479, 111 P.2d 267, 272; Midland Coal & Lumber Co. v. Ferguson, supra. Under the statutes, the accounts and statements filed with the notice of lien form part of the lien itself, and can be used for further aid inidentifying the building sought tobe charged. Section 71-3-511(1), MCA; Morrison-Maierle, Inc. v. Selsco, supra; Federal Land Bank of Spokane, 108Mont. 

### --- 63-64, 90 P.2d 492. The purpose of requiring notice of the lien tobe filed 

### is toprotect allparties dealing with the property, including innocent third parties and subsequent purchasers. MorrisonMaierle, Inc. v. Selsco, supra; Western IronWorks, 30 Mont. 

## -- 557, 77 P. 416. This Court 

### willconstrue the adequacy of the description more strictly against the lienclaimant where third parties are involved than where only the owners themselves are involved: "The same rule of construction would certainly not apply ina casewhere the result affected the interest of an innocentpurchaser forvalue, whose rightsmight have been prejudiced by a lack of full description, and one which affected only the interest of the owner whose land has been enhanced invalue by the lienclaimants, and who 

### ispresumed toknow 

### its location." Caird Engineering Works v. Seven Up Gold Mining Co., supra, 111 Mont. 481, 111 P.2d 273. See alsoBlose v. Havre Oil & Gas Co. (1934), 96 Mont. 450, 466-467, 31 P.2d 738, 744. Turning now to the facts of this appeal, we note first thatonly the lienclaimant and the owners of the property

are involved. No third party has been misled tohis detriment by the incorrectdescription. Therefore, the owners' argument that third parties might have been misled 

### isunpersuasive, and the owners themselves could not have been misled by the incorrect description. The notice of liendescribes the structure itself as an "officebuilding" and the invoices attached asexhibitsdescribe 

### it as "Bennett Office Building", "Bennett Office", "Bennett", and "Bennetts"

# . Omitting the incorrectportion of the legal description, the building 

### isdescribed asbeing located on Block 1of Valley View Acres Subdivision 

### in Billings, Yellowstone County, Montana. The following 

### isa pertinent portion of General Electric's exhibit "C" showing the location of the lotsinquestion:

The affidavits and photographs submitted inevidence by General Electric show only two commercial buildings on Block 1, the Royal Fork restaurantbuilding (obviouslynot an office building) and the Bennett office building. This evidence 

### isnot controverted or rebutted by the owners, and Mont. 

### is therefore taken astrue. Swecker v. Dorn (1979), 

### - I 593 P.2d 1055,1058, 36 St.Rep. 844, 847. The uncontroverted evidence forms a proper basis for summary judgment. Rule 56

### (e)

## , M.R.Civ.P.Using only the correctportions of the description contained inGeneral Electric's notice of lien, and using the account statementswhich form part of the lien for further aid inidentification, the building subject to the lien

### is described as the "Bennett Office Building" located on Block 1of Valley View Acres Subdivision of Billings, Yellowstone County, Montana. Considering the uncontradicted evidence, 

### it is clear thata person familiarwith the locality could identify the property subject to the claim of lien. The description contained inthe notice of lien 

### is sufficient to allow lien foreclosure. Any question in this regard 

### is eliminated by the presence of the owners as the only parties involved and the absence of innocent third parties. We reverse the judgment of the DistrictCourt, and remand the case for entry of judgment in favor of General Electric Supply Company.

We concur:

Chief Justice \