Beeman Bros. Drilling v. First Interstate Bank of Denver, N.A.

Opinion by

Judge NEY.

In this proceeding, defendant and third-party plaintiff, First Interstate Bank of Denver, N.A., appeals the judgment of the trial court in favor of plaintiff, Beeman Brothers Drilling, permitting foreclosure of a mechanic’s lien against First Interstate’s real property. First Interstate also appeals the judgment in favor of Simmons Land and Cattle Co. on First Interstate’s claim of unjust enrichment, indemnity, and specific performance. We reverse the judgment in favor of Beeman and affirm the judgment in favor of Simmons.

Beeman was engaged by Smith, First Interstate’s predecessor in interest, to drill water wells on the property of Smith’s neighbor, Simmons. The wells, if sufficiently productive, were, in accordance with an agreement to be negotiated after testing, intended to to provide water for a real estate development planned for Smith’s land and for a mobile home park to be constructed on Simmons’ land. Smith agreed to pay Beeman all costs of the drilling, completion, and testing of the wells.

Simmons gave permission for the drilling by Beeman on his land; however, Simmons did not agree to pay for Beeman’s services. After testing, no agreement for the allocation of water between Smith and Simmons was ever negotiated nor water made available to Smith’s land.

When Smith breached his agreement and did not pay for Beeman’s services, Beeman filed mechanics’ liens against both Simmons’ and Smith’s properties. Beeman released its lien against the Simmons’ property because Simmons had not agreed to pay for the work.

Beeman initiated an action for foreclosure of its lien against the Smith property, then owned by First Interstate. First Interstate asserted claims for unjust enrichment, indemnity, and specific performance against Simmons which were dismissed by the trial court.

The trial court entered judgment on the lien foreclosure in favor of Beeman. Although the work for which the lien was claimed had been performed on the neighboring property, the court reasoned that the work was for the intended benefit of First Interstate’s property.

I

First Interstate contends that the trial court erred in finding that Beeman is entitled to foreclose on a mechanic’s lien against its property. We agree.

The right to a mechanic’s lien is governed by § 38-22-101, C.R.S. (1982 Repl. Vol. 16A). Trustees of Mortgage Trust v. District Court, 621 P.2d 310 (Colo.1980).

Section 38-22-101(1), C.R.S. (1982 Repl. Yol. 16A) provides:

“All persons of every class performing labor upon ... any building, mill, bridge, ditch ... wagon road, tramway, or any other structure or improvement on land, including adjacent curb, gutter, and sidewalk ... shall have a lien upon the property upon which they have ... bestowed labor or for which they have furnished materials ... machinery or other fixtures, whether at the instance of the owner, or of any other person acting by his authority or under him, as agent, contractor, or otherwise.... ” (emphasis supplied)

The plain language of the statute authorizes a lien in favor of the laborers or materialmen only “upon the property upon which they have” either bestowed labor or materials. It does not authorize a lien against any property other than that upon which the services were rendered or for which the fixtures were supplied. Schmidt Construction Co. v. Fast, 776 P.2d 1175 (Colo.App.1989). See Brannan Sand & Gravel Co. v. Santa Fe Land & Improvement Co., 138 Colo. 314, 332 P.2d 892 (1958).

We conclude that since the drilling was not upon First Interstate’s land nor did it bestow any benefit on that land, it was error to permit foreclosure of a lien against First Interstate’s property.

II

First Interstate also contends that the trial court erred in ruling that it is not entitled to recovery from Simmons on the grounds of unjust enrichment, indemnity, and/or specific performance. Because First Interstate did not confer a benefit on Simmons, nor did Simmons agree to pay for Beeman’s work, we perceive no error in the court’s rulings. Martinez v. Continental Enterprises, 730 P.2d 308 (Colo.1986).

III

Claiming that First Interstate’s appeal against it is frivolous and without substantial justification, Simmons has requested, in its answer brief, attorney fees and costs as to this appeal. We agree that Simmons is entitled to its attorney fees and costs.

Our review of the record and the briefs reveals no rational argument based on the evidence or law in support of First Interstate's contentions on appeal as to Simmons. Under these circumstances, we deem the appeal to be frivolous, as to the contentions against Simmons and award Simmons its reasonable attorney fees and costs incurred on this appeal. See C.A.R. 38(d); Rogers v. Charnes, 656 P.2d 1322 (Colo.App.1982). The request of Beeman for attorney fees and costs is denied.

The judgment of the trial court is reversed as to Beeman’s foreclosure of a lien against First Interstate’s land. In all other respects, it is affirmed, and the cause is remanded for determination of reasonable attorney fees and costs incurred by Simmons in the defense of this appeal, together with appropriate interest thereon.

PLANK, J., concurs. JONES, J., dissents.