Opinion
As Modified on Denial of Rehearing Aug. 4, 1971.
Strand, Holst & Hilbert, Dale L. Holst, Edwin Strand, Colorado Springs, for defendants in error, Buena Vista Estates, Inc., Christopher H. Munch, Eugene DeBellis, Moanare M. DeBellis, Barbara Smith, Melvin J. Mitchell, Joanne P. Mitchell, Security Savings and Loan Assn. and Western Federal Savings and Loan Assn.
M. Keith Singer, Denver, for plaintiffs in error.
William T. Eckhart, Colorado Springs, for defendant in error, City of Colorado Springs.
No appearance for other defendants in error.
COYTE, Judge.
This case was transferred from the Supreme Court pursuant to statute.
Pacific States Cast Iron Pipe Co., Pipeline Materials, Inc., and Denver Brick and Pipe Co. appear as plaintiffs in error, and were plaintiffs below. They were lien claimants to a certain tract of land known as Prospect Park Subdivision, which was owned by the defendant Buena Vista Estates, Inc. In this court plaintiffs assert claims only against Buena Vista Estates, Inc. and Munch, landowners, and the City of Colorado Springs. Liberty Pipeline Company was a contractor which had agreed to install a sewage system at Prospect Park for Buena Vista Estates, Inc. The lien claim arose out of materials purportedly delivered to Liberty Pipeline Company for use in this subdivision. Liberty Pipeline Company has since been released through a bankruptcy proceeding. Trial on the matter was to the court, which at the conclusion of plaintiffs' evidence, found generally in favor of the defendants, and ordered them to prepare findings of fact and conclusions of law. This was done by defendants' counsel, and the trial court adopted the findings and entered them as part of its judgment.
The fact that the trial judge used findings prepared by defendants, rather than findings prepared by himself, forms the basis for the first alleged error. It is argued by plaintiffs that R.C.P.Colo. 52(a) prevents a judge from using findings other than those personally prepared by him. On this issue, the Supreme Court has ruled in Uptime Corporation v. Colorado Research Corporation, 161 Colo. 87, 420 P.2d 232, that adoption of findings prepared by one of the litigants is permissible, since it is assumed the trial judge has examined them for accuracy, and has made an independent determination as to their validity. The Supreme Court was careful to point out that uncritical acceptance of prepared findings is not to be condoned, but in the instant case nothing appears in the record to indicate the trial judge did not examine and fully agree with these findings. Therefore, we must presume the findings to be a true expression of the trial court's conclusions in this matter.
Plaintiffs further assert that the trial court's findings of fact are against the manifest weight of the evidence. Specifically, the trial court found as fact that plaintiffs had failed to prove that the materials sold to Liberty Pipeline Company had been delivered for use at Prospect Park, and, consequently, it held that their lien claim under C.R.S. 1963, 86--3--3, must fail.
In brief, the evidence used by two of the plaintiffs were invoices prepared by them which show a list of material sold to Liberty Pipeline Company to be sent to Prospect Park. Another plaintiff, Pipeline Materials, Inc., also had invoices prepared, but these list a different address than Prospect Park. However, its agent did testify that the materials sold were for use at Prospect Park. As further proof of delivery, Pacific States Cast Iron Pipe Co. brought in bills-of-lading corresponding with its invoices, and showing the address for delivery as Prospect Park.
The inherent difficulty with plaintiffs' assertions that the findings are contrary to the evidence is the testimony elicited by the defendants on cross-examination of plaintiffs' witnesses. This testimony established that none of the witnesses had direct knowledge that all of the materials sold to Liberty Pipeline Company actually ended up at Prospect Park Subdivision. It was further shown that Liberty Pipeline Company was working on two other projects concurrently with the one at Prospect Park.
Although plaintiffs presume the materials sold to Liberty Pipeline Company were for use at Prospect Park, there was no positive showing that all of this particular material for which a lien is claimed, that was sent to Liberty Pipeline Company, was actually delivered to Prospect Park. There was, admittedly, material at Prospect Park which was picked up by Pacific States Cast Iron Pipe Co. However, there was no proof that the rest of the materials claimed to have been delivered to the job site by this company were actually delivered. An employee of Pipeline Materials, Inc., admitted he could not identify material as coming from his employer. This same witness testified that when the unused material of this company was picked up, it came from another location, not Prospect Park. An employee of Pacific States Cast Iron Pipe Co. admitted having no knowledge as to where the materials were delivered or from where they were returned.'
We affirm the judgment of the trial court. To have a mechanic's lien attach, it must be shown that the material was delivered for use on a building project on the land in question. C.R.S.1963, 86--3--3. Here the plaintiffs established that materials were delivered to Liberty Pipeline Company, and they then assume, contrary to the trial court's finding that such materials were used at Prospect Park. This assumption is not supported by the evidence. In reviewing evidentiary questions, we must view the evidence in the light most favorable to the conclusions reached by the trial court, and merely because a different conclusion might have been reached based upon the same facts does not justify our disturbing these findings. Broncucia v. McGee, Colo., 475 P.2d 336. Only in instances where but one inference might be reached may we reverse a determination of fact made by the trial court not in accord with that inference. Hipps v. Hennig, 167 Colo. 358, 447 P.2d 700.
The other arguments raised by plaintiffs presuppose the fact of delivery of the materials, and therefore need not be discussed in view of the above opinion.
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.