VOIGT, Justice.
[¶ 1] The district court granted summary judgment to Elkhorn Construction, Inc. (Elkhorn), a subcontractor, on its mechanic's lien claim against KM Upstream, LLC (KM), the owner of an amine plant, the construction of which plant underlies all the issues of this case.
[¶ 2] Because of a W.R.C.P. 54(b) certification issue, the appeal and the cross-appeal were each filed twice. The resulting four docketed cases, as referenced in the heading of this opinion, have been joined for briefing, argument, and opinion. We affirm in part, reverse in part, and remand to the district court for further proceedings consistent herewith.
[¶ 3] 1. Did the automatic stay in Newpoint, LP's bankruptcy deprive the district court of jurisdiction to enter summary judgment in this case?
[¶ 4] On July 6, 2007, KM and Newpoint, Inc. entered into a contract whereby the latter would construct for the former "an amine plant at West Frenchie Draw, Fremont County, Wyoming[.]" KM agreed to pay Newpoint, Inc. $15,664,490 as a fixed cost, as might be amended by written change order. Eventually, two written change orders increased the price to $15,695,855.30. KM paid Newpoint, Inc. $15,524,659.21, and it paid $219,256.72 to other contractors to finish the job.
[¶ 5] Newpoint, Inc. subcontracted with Elkhorn to build the foundation and to interconnect certain "skids." The Time and Material Contract between Newpoint, Inc. and Elkhorn contained a "target price" of $5,700,000, which target price was not to be increased but by Newport, Inc., in writing. Despite the fact that this target price was never formally increased in writing, and despite the fact that no additional change orders were presented, Newpoint, Inc. approved Elkhorn's invoices in the total amount of $9,910,086.96.
[¶ 6] On March 6, 2009, Elkhorn filed a Lien Statement with the Fremont County Clerk, reading in pertinent part as follows:
(Emphasis in original.) Attached to the Lien Statement were 1,260 pages of invoices and labor charges for amounts claimed by Elkhorn.
[¶ 7] On March 23, 2009, Elkhorn filed a complaint against KM, alleging three causes of action: foreclosure of the lien as a mechanic's lien under Wyo. Stat. Ann. § 29-2-101
[¶ 8] KM filed an answer in response to the Second Amended Complaint, denying that Elkhorn was entitled to recover any amounts under any of its causes of action, and presenting numerous affirmative defenses. Newpoint, Inc. filed an answer, in pertinent part denying that Elkhorn had provided any material or performed any labor for which it had not been paid. Newpoint, Inc. also counterclaimed against Elkhorn, claiming that Elkhorn had breached its contract with Newpoint, Inc. by seeking compensation beyond the contract's target price, without prior notice as required by the contract. Newpoint, Inc. also sought a declaration that nothing further was owed to Elkhorn under the contract. Newpoint, Inc. later filed an amendment to its answer and counterclaim, limiting the counterclaim to a request for a declaratory judgment as to what amounts Elkhorn might be owed, and adding a cross-claim against KM, with seven claims for relief: misrepresentation, estoppel/waiver, breach of the implied covenant to provide timely and adequate plans, breach of contract, indemnity, breach of the covenant of good faith and fair dealing, and unjust enrichment.
[¶ 9] KM answered Newpoint, Inc.'s cross-claim, and filed a responsive cross-claim against Newpoint, Inc., in which it alleged breach of contract as follows: creation of the Elkhorn lien, failure to manage contract expenses, failure to pay or discharge lien, failure to provide notice of liens, failure to acquire subcontractor's waiver of lien rights, failure to assure consistent subcontract, failure to indemnify, and breach of the duty of good faith and fair dealing. Finally, KM sought a declaration as to Newpoint, Inc.'s obligations to defend against and hold KM harmless from the Elkhorn claims, or other claims arising by virtue of contract or common law.
[¶ 10] After replying to Newpoint, Inc.'s amended counterclaim, Elkhorn filed an amendment to its Second Amended Complaint in which it added a breach of contract claim against Newpoint, Inc., seeking $4,880,588.83 for amounts that it had not been paid under the project. Subsequently, Newpoint, Inc. answered the amendment to Elkhorn's Second Amended Complaint, and amended its cross-claim against KM by adding allegations of negligent retention of contractor, and indemnity under a specific section of the contract. KM then answered Newpoint, Inc.'s cross-claim, and amended its cross-claim against Newpoint, Inc. by alleging the following causes of action: breach of contract—joint venture obligations, promissory estoppel, equitable estoppel, breach of contract, breach of contract—creation of the Elkhorn lien, breach of contract—demand in excess of contract price, breach of contract— failure to pay or discharge liens, breach of contract—failure to provide notice of liens, breach of contract—failure to acquire subcontractor's waiver of lien rights, breach of contract—failure to assure consistent subcontract, breach of contract—obligation to defend and indemnify, breach of statutory duty to defend and pay, breach of the duty of good faith and fair dealing, and a declaratory judgment.
[¶ 11] The next series of filings in the district court began with KM's motion to join
[¶ 12] On March 28, 2011, Elkhorn filed a motion for summary judgment. A similar motion from KH followed on April 4, 2011. Both motions were supported by hundreds of pages of affidavits, deposition transcripts, and other exhibits. On May 3, 2011, KM filed a motion seeking partial summary judgment against Newpoint, Inc., on four of the causes of action in its cross-claim. Before any of these motions could be heard, KM notified the district court that Newpoint, LP had filed in Oklahoma a voluntary petition seeking bankruptcy protection, and seeking the district court's guidance on application of the bankruptcy court's automatic stay. Two days later, KM filed an amended notice of the bankruptcy, this time advising the court that "Newpoint Gas, LP, allegedly a/k/a Newpoint Gas Services, Inc." had taken bankruptcy. Elkhorn opposed recognition or application of the automatic stay arising in the Oklahoma bankruptcy in this case, arguing that its contract was with Newpoint, Inc., which company was not in bankruptcy, rather than with Newpoint, LP, the company in bankruptcy. Elkhorn argued further that, not only does a bankruptcy stay not stay proceedings against solvent companies affiliated with the company taking bankruptcy, neither does it stay proceedings against co-defendants of the company taking bankruptcy.
[¶ 13] The district court heard the pending motions in regard to the bankruptcy stay, as well as the summary judgment motions, on June 17, 2011. Ruling from the bench, the district court granted Elkhorn's motion for summary judgment to allow foreclosure on the mechanic's lien, but indicated that it would stay the balance of the proceedings as such related to Newpoint, Inc. and Newpoint, LP. On July 1, 2011, an Order Staying Case and an Order Granting Plaintiff's Motion for Summary Judgment on Foreclosure of Mechanic's Lien were entered. The details of those orders will be discussed as pertinent below.
[¶ 14] With little fanfare, we will dispose of KM's contention that the federal bankruptcy code's automatic stay, found at 11 U.S.C. § 362(a) (2006 & Supp. IV 2010), effective in Newpoint, LP's Oklahoma bankruptcy, should have stayed the entire case facing the district court in Wyoming. Whether we review the district court's decision de novo, as argued by KM, or for an abuse of discretion, as argued by Elkhorn, we come to the same conclusion.
[¶ 15] It must be remembered that, in the instant case, the district court did stay the proceedings in regard to any claims, cross-claims, or counterclaims that could have resulted in a judgment against Newpoint, allowing only the summary judgment on Elkhorn's in rem mechanic's lien foreclosure to proceed. See True v. Hi-Plains Elevator Mach., Inc., 577 P.2d 991, 1004 (Wyo.1978) and Mawson-Peterson Lumber Co. v. Sprinkle, 59 Wyo. 334, 140 P.2d 588, 591-92 (Wyo.1943). Because the property subject to the lien foreclosure was the property of KM, rather than the property of Newpoint, the entity in bankruptcy, the in rem proceeding to foreclose the lien was not subject to the automatic stay. Fortier, 747 F.2d at 1330.
Hamel, 713 P.2d at 1154 (internal citations omitted). The bankruptcy stay in Oklahoma did not deprive the district court of jurisdiction to enter summary judgment in the instant case.
[¶ 16] District court rulings on the joinder of parties, including allegedly indispensable parties, are reviewed for an abuse of discretion. Grove v. Pfister, 2005 WY 51, ¶ 4, 110 P.3d 275, 277 (Wyo.2005); Albrecht v. Zwaanshoek Holding En Financiering, B.V., 762 P.2d 1174, 1178 (Wyo.1988). The court rule governing joinder is found at W.R.C.P. 19:
[¶ 17] In addition to this provision in the court rules, the lien statutes provide a mechanism for making a contractor such as Newpoint a party in a lien foreclosure action brought by a subcontractor such as Elkhorn against an owner such as KM:
Wyo. Stat. Ann. § 29-2-108 (LexisNexis 2007).
[¶ 18] Before we discuss this law, and the issue of indispensable parties, we must make a point. This is not a question of the effect of the district court's denial of a motion to join Newpoint as an indispensable party. As noted above, after KM filed two motions to add Newpoint, Inc., as a party defendant, KM and Elkhorn stipulated to such joinder, and an order was entered to that effect. See supra ¶ 7. Elkhorn's complaint was amended, Newpoint, Inc. answered, and filed a counterclaim against Elkhorn and a cross-claim against KM. See supra ¶¶ 7, 8. Both Elkhorn and KM responded to Newpoint, Inc.'s claims. Subsequently, the district court was notified that Newpoint, Inc. had filed for bankruptcy protection in Oklahoma, and the question of the applicability of the bankruptcy stay, discussed above, arose. See supra ¶ 12. Consequently, the limited issue now before us is whether the district court abused its discretion in failing to stay or dismiss the entire case because of Newpoint, Inc.'s non-participation, a question not much different from the one just answered.
[¶ 19] We believe that the district court's concurrent entry of its two orders— one granting summary judgment to Elkhorn against KM on the limited issue of the lien foreclosure, and one staying all proceedings that in any way affected Newpoint's rights and obligations—was precisely what was intended by the automatic bankruptcy stay, by the lien statutes, and by the court rule governing indispensable parties. We begin by noting the purpose of the lien statutes, which is "to create a means of securing the claims of a particular class of creditors and to prevent unjust enrichment arising out of the enhancement of value of property from labor and materials which would otherwise go without payment." Engle v. First Nat'l Bank of Chugwater, 590 P.2d 826, 830 (Wyo. 1979). Allowing the insolvency or bankruptcy of the contractor to defeat the lien claim of a subcontractor would, of course, thwart that purpose. That reasoning is reflected in W.R.C.P. 19(a), (b)(4), which directs the district court, in determining "whether in equity and good conscience the action should proceed among the parties before it" when an "indispensable" party cannot be joined, to consider "[w]hether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder." In addition, W.R.C.P. 19(a) makes it clear that a person should not be joined as a party under the rule if "joinder will [] deprive the court of jurisdiction over the subject matter of the action...." Clearly, the intent of the rule is that it not be used to prevent adjudication of claims between parties
[¶ 20] Without doubt, Wyo. Stat. Ann. § 29-2-101 was "incorporated in the lien laws for the owner's protection, and the owner has a clear right to insist that the contractor be made a party." Hamel, 713 P.2d at 1154. We have previously noted, however, that this right is only the right to have the contractor made a party if such "is possible." True, 577 P.2d at 1005. This is consonant with the introductory language to W.R.C.P. 19(a), which indicates that persons are to be joined under the rule "if feasible," and to the body of the rule, which contains several exceptions to joinder where such could defeat the underlying action: person not subject to service of process, subject matter jurisdiction would be destroyed, or venue would be rendered improper. See Hoiness-LaBar Ins. v. Julien Constr. Co., 743 P.2d 1262, 1269 (Wyo.1987) (not indispensable party if not subject to service of process). It is also consonant with the fact, noted above, that inclusion of an indispensable party is a discretionary decision, not one made as a matter of law. See American Beryllium & Oil Corp. v. Chase, 425 P.2d 66, 68 (Wyo.1967) (no fixed rule determines whether person with interest is an indispensable party; rather, peculiar facts of case are determinative). The general rule has been described as follows:
59 Am.Jur.2d Parties § 10 (2d ed. 2012).
[¶ 21] A mechanic's lien foreclosure, in the context of the case sub judice, is a statutory procedure that allows a subcontractor to obtain from the property the reasonable value of the labor and materials put into that property. It has the joint equitable goals of preventing unjust enrichment and providing restitution. Horseshoe Estates v. 2M Co., 713 P.2d 776, 779 (Wyo.1986); Engle, 590 P.2d at 830. Perhaps it could be said that the usual necessity for a subcontractor establishing a lien and seeking to foreclose it is that the contractor did not pay for the subcontractor's services. Allowing the owner
[¶ 22] In its final argument in regard to this issue, KM cites A.H. Robins Co. v. Piccinin, 788 F.2d 994, 999-1001 (4th Cir. 1986) for the proposition that Newpoint is an indispensable party because KM is entitled to "absolute indemnity" from Newpoint. In response, Elkhorn distinguished A.H. Robins from the instant case by pointing out that in the latter the question of indemnity is not at all clear, and that matter remains to be resolved between KM and Newpoint in the bankruptcy. We agree with Elkhorn. The contingent nature of any indemnification claims simply renders them too remote to justify staying these state lien foreclosure proceedings and transferring the entire matter to the bankruptcy court. Ni Fuel Co. v. Jackson, 257 B.R. 600, 616 (N.D.Okla.2000). In turn, allowing these proceedings to continue will not affect the indemnity claims involving the bankrupt entity and the bankruptcy estate:
Id. This is precisely what has happened in the instant case. The district court maintained jurisdiction over the statutory lien foreclosure, and then stayed the balance of the proceedings for resolution in the bankruptcy court. That was the correct course of action.
[¶ 23] About two years into this lawsuit, KM filed a motion to join HFG as an additional defendant, arguing that HFG was a joint venturer with Newpoint, and therefore was an indispensable party. KM's theory was that, as a joint venturer with Newpoint, HFG was liable for Newpoint's contractual obligations, including indemnity. Elkhorn opposed the joinder motion, principally on three grounds: that the motion was untimely, that as a matter of law Newpoint and HFG were not joint venturers, and that a mandatory arbitration clause in the contract between KM and HFG would compel arbitration of any claims between them.
[¶ 24] Our resolution of the joinder issue as it applies to Newpoint allows us to determine this issue without further discussion. Resolution of Elkhorn's statutory lien claim does not require resolution of the question of whether Newpoint and HFG were joint venturers, and does not require resolution of any potential indemnification issues among KM, HFG, and Newpoint. All of those questions are more properly questions for the bankruptcy court, and the stay entered in this case by the district court accomplishes that goal. The district court did not err in granting summary judgment in the absence of HFG.
[¶ 25] We have repeatedly stated our standard for reviewing summary judgments. The following is an apt rendition of that standard given the issues presented in this case:
Hatton v. Energy Elec. Co., 2006 WY 151, ¶¶ 8-9, 148 P.3d 8, 12-13 (Wyo.2006).
[¶ 26] As mentioned earlier herein, the target price in the Newpoint-Elkhorn contract was $5,700,000. Nevertheless, Newpoint approved Elkhorn invoices totaling $9,910,086.96. Newpoint paid Elkhorn $4,829,498.13. Eventually, Elkhorn filed the Lien Statement that is the subject of this controversy, to which were attached copies of unpaid but Newpoint-approved invoices totaling $4,880,588.83. At the hearing upon the parties' summary judgment motions, Elkhorn conceded that there were genuine issues of material fact concerning certain invoices totaling $181,369.00, leaving a balance of $4,699,219.83. That was the amount awarded to Elkhorn in its foreclosure claim.
[¶ 27] Elkhorn supported its summary judgment motion with nine attachments. Exhibit A consisted of excerpts from the deposition testimony of Zane Rhodes, president of Newpoint, Inc. The following colloquy occurred during the deposition after Rhodes described the process whereby Newpoint, Inc. authorized Elkhorn's invoices:
After further testifying that some invoices were approved in the field, and some were approved in Newpoint's offices, Rhodes testified that the amounts were due and owing, and that the Elkhorn invoices were "used by Elkhorn to improve Kinder Morgan's property."
[¶ 28] Attached to Elkhorn's summary judgment motion as Exhibit D are excerpts from the deposition of Cole Deister, Elkhorn's project representative, who described in detail the construction problems that resulted in Elkhorn's extra work on the project. Exhibit F contains copies of numerous deposition exhibits, including the Time and Material Contract between Newpoint and Elkhorn, Elkhorn's bid documents, rate sheets, e-mails about construction problems, invoices, discovery responses, the KM/HFG contract, and the KM/Newpoint contract. Exhibit H consisted of an affidavit and a chart comparing the number of laborers Elkhorn had expected to work on the project with the larger number of laborers actually required. In further support of its summary judgment motion, Elkhorn submitted to the district court a brief summarizing these exhibits and laying the blame for the construction problems and additional costs squarely upon the failures of HFG, particularly in the untimely delivery of engineering drawings.
[¶ 29] KM filed its own summary judgment motion, a memorandum of law in support of that motion, and a response to Elkhorn's motion. KM raised three contentions as to the existence of genuine issues of material fact: (1) whether Elkhorn is entitled to the amount it claims, (2) who was responsible for the cost overruns, and (3) whether the amount of Elkhorn's lien claim is reasonable. In regard to those specific contentions, we note the following information contained in KM's materials. First, the head of KM's project management group states in an affidavit that, to the best of his knowledge, the target price established in the Newpoint/Elkhorn contract was never increased in writing. Next, KM notes that it approved only two change orders for the project, one increasing its contract price with Newpoint by $15,090.30, and the second increasing its contract price with Newpoint by $16,275.00. In addition, portions of the transcript of the deposition of Elkhorn's project representative reveal that Elkhorn obtained no written change orders from Newpoint. In short, KM first argues that Elkhorn never obtained an increase in its contract price in the manner required by the contract, and, therefore, is not entitled to any amount beyond the contract price.
[¶ 30] Elkhorn cites three Wyoming cases in rejecting this contention. Repeating its argument that HFG's failure timely to produce engineering drawings made it impossible for Newpoint and Elkhorn to determine a new target price under their contract, Elkhorn quotes Mortenson v. Scheer, 957 P.2d 1302, 1306 (Wyo.1998) as follows:
(Quoting Restatement (Second) of Contracts § 261 (1979)). Next, noting that Newpoint and Elkhorn responded to the impossibility of identifying a new target price by modifying the contract price via Newpoint's approval of Elkhorn's invoices, Elkhorn points out the following language from Schuler v. Community First Nat'l Bank, 999 P.2d 1303, 1305 n. 1 (Wyo.2000):
See also Huang Int'l, Inc. v. Foose Constr. Co., 734 P.2d 975, 978 (Wyo.1987) (habitual disregard of provision requiring written change orders can amount to waiver of the requirement).
[¶ 31] We agree with Elkhorn and the district court that the altered method of contract pricing, that being Newpoint's periodic approval of Elkhorn's invoices, rather than a one-time amendment to the target price, does not take those charges outside the parties' contract, or negate Elkhorn's entitlement to payment. There is no genuine issue of material fact as to that proposition.
[¶ 32] KM next asserts that a genuine issue of material fact remains as to who was responsible for the cost overruns. The suggestion, of course, is that Elkhorn should not be allowed to benefit from extra expenses that it was at fault for causing. In maintaining that it has proven that Elkhorn was not responsible for the additional costs, Elkhorn relied upon the attachments to its Lien Statement and the exhibits mentioned above that were attached to its summary judgment motion. In response, KM points to two Newpoint e-mails that call Elkhorn's performance into question. On December 22, 2008, Newpoint's CEO, Wiley Rhodes, informed Elkhorn that despite the good intentions of Elkhorn, HFG, and Newpoint, "we all fell short of our original goal." In an internal e-mail dated about three months later, Newpoint, LP's Project Manager, Cathy Torregano, identified what she believed to be contract breaches by Elkhorn: failure adequately to schedule and manage project activities, failure to submit written notices of discrepancies, failure to document actual installation, failure to "redline" civil, mechanical and electrical drawings, failure to generate accurate lists to procure required materials, failure to use expedited materials within 30 days, and failure to know what was needed to finish the job despite continuous reorders. Finally, KM attached to its response to Elkhorn's summary judgment motion an affidavit and lengthy expert report entitled "Analysis of Claimed Damages related to West Frenchie Draw Treating Plant Fremont County, Wyoming."
[¶ 33] Before we further analyze KM's assertion that a genuine issue of material fact exists in regard to who caused the project's cost overruns, we think it prudent first to discuss KM's third allegation—that is, that genuine issues of material fact exist in regard to whether the amount of Elkhorn's claimed lien is reasonable. We begin with the proposition that the correct measure of compensation under a mechanic's lien, rather than being the enhanced value of the owner's property, is the value of the materials and services supplied by the mechanic or materialman. Horseshoe Estates, 713 P.2d at 778-79; Engle, 590 P.2d at 830. Of particular note because of the parties' relations in the instant case is our stated principle that, where there is no contract between the owner and a subcontractor, the correct measure of compensation under a lien filed by that subcontractor against the owner is the reasonable value of the labor and materials furnished. United Pacific Ins. Co. v. Martin & Luther Gen. Contractors, Inc., 455 P.2d 664, 669 (Wyo.1969). Furthermore, both the cost of the goods and services supplied, and the contract price, are "admissible on the issue of reasonable value and constitutes prima facie proof of the issue." Id. (quoting Lenslite Co. v. Zocher, 95 Ariz. 208, 388 P.2d 421, 424 (1964)).
[¶ 34] In the end, we conclude that Elkhorn presented a prima facie case in support of its motion for summary judgment, and that KM did not in response present specific facts showing the existence of genuine issues of material fact. Through affidavits, deposition testimony, contracts, bid documents and rate sheets, and, above all, proof that Newpoint had approved all of the subject invoices, Elkhorn met its burden of making a prima facie showing that it provided the labor and materials underlying the lien statement, and that the total amount was reasonable.
[¶ 35] KM misapprehends its obligation in resisting Elkhorn's summary judgment motion. It is not sufficient, for instance, to suggest that Elkhorn may have been responsible for some of the cost overruns. Speculation is not evidence. Furthermore, KM's
[¶ 36] Wyo. Stat. Ann. § 29-2-101(b) (LexisNexis 2007), which is part of the "Contractors or Materialmen" lien statutes, provides that "[t]o have a lien the work or materials shall be furnished under a contract." KM interprets this language to mean that, not only must there be a contract supporting the lien claim, but the lien claim may not exceed the stated contract price. KM then reasons that, because Elkhorn's Lien Statement itemized amounts beyond the original "target price" in the Elkhorn-Newpoint contract, Elkhorn's lien is invalid.
[¶ 37] We will reject KM's contention with little comment. We note that, although KM cites to numerous cases recognizing the statutory contract requirement, KM does not cite a single case holding that the statutory language "caps" the lien amount at the original contract price.
[¶ 38] Title 29 of the Wyoming Statutes is entitled "Liens."
[¶ 39] Elkhorn filed only one Lien Statement, which reads in pertinent part as follows:
(Emphasis in original.)
[¶ 40] KM argues that, by referencing only § 29-1-301, which governs all lien statements as part of the general provisions of Chapter 1, and § 29-3-101, which governs oil and gas liens under Chapter 3, Elkhorn did not make a mechanic's lien claim under § 29-2-101, which is part of Chapter 2. Elkhorn contends, to the contrary, that use of the conjunctive "and" between the phrases describing leasehold interests and improvements, on the one hand, and oil and gas production, on the other, shows the intent of the Lien Statement to set forth both a mechanic's lien claim and an oil and gas lien claim. Further, Elkhorn argues that § 29-1-301(b), which lists the information that must be contained in all lien statements, does not require a reference to the particular statutory section under which the lien is being claimed. Finally, Elkhorn notes that it sent KM a notice of its intent to file a lien, as required by the mechanic's lien statutes, but not the oil and gas lien statutes, and that in its pleadings throughout the case, KM expressly recognized that Elkhorn had filed both a mechanic's lien and an oil and gas lien.
[¶ 41] We have said many times that statutory liens are in derogation of common law, that the lien statutes must be strictly construed, and that, to establish a valid lien, there must be full compliance with the statutes. Foster Lumber Co. v. Hume, 645 P.2d 1176, 1180 (Wyo.1982); Tottenhoff v. Rocky Mountain Constr. Co., 609 P.2d 464, 466 (Wyo.1980); American Bldgs. Co. v. Wheelers Stores, 585 P.2d 845, 847 (Wyo.1978). At the same time, however, in recognition of the equitable principles underlying the lien statutes, we have also repeatedly found a lien to be valid even though it contained inadvertent inaccuracies or omissions that were not prejudicial. See, e.g., Kirby Bldg. Sys. v. Independence P'ship No. One, 634 P.2d 342, 346 (Wyo.1981); Engle, 590 P.2d at 830-32; United Pacific, 455 P.2d at 673-76; Phelan v. Cheyenne Brick Co., 26 Wyo. 493, 188 P. 354, 358 (1920).
[¶ 42] In the instant case, KM does not claim to be prejudiced by Elkhorn's omission from its Lien Statement of a specific reference to Wyo. Stat. Ann. § 29-2-101. Rather, KM simply argues that, because of that omission, Elkhorn did not file a mechanic's lien. That position is inconsistent with the position that KM took during the proceedings in district court. For instance, in a reply filed on July 16, 2009, in support of its motion to dismiss Elkhorn's oil and gas lien foreclosure claim, KM made the following statement:
[¶ 43] We find that the Lien Statement is sufficiently clear in its intent to state both a mechanic's lien and an oil and gas lien. It certainly cannot be said that, as a matter of law, the language is statutorily inadequate, and it is clear from the record that KM was not mislead and suffered no prejudice. While the lien statutes, themselves, are to be strictly construed, and while compliance with their mandates is required, it would defeat the equitable purposes behind the statutes— to create a means of payment for labor and materials that might otherwise go unpaid— were we to find invalid every lien that contained any discrepancy or omitted any information, whether or not material.
[¶ 44] In its summary judgment order, the district court awarded Elkhorn prejudgment interest at the statutory rate of seven percent per annum. In considering the rectitude of prejudgment interest in this case, the parties have not suggested what
[¶ 45] Prejudgment interest is awarded in the appropriate case under the doctrine of unjust enrichment, as damages for the lost use of money. Pennant Serv. Co. v. True Oil Co., 2011 WY 40, ¶ 36, 249 P.3d 698, 711 (Wyo.2011); State v. BHP Petroleum Co., 804 P.2d 671, 673 (Wyo.1991). This doctrine is applicable where a lien is being foreclosed, because the loss of use of money is part of the claimant's damages, and an award of interest may be necessary "to avoid an injustice." Horseshoe Estates, 713 P.2d at 782. Prejudgment interest is available if a two-part test is met: (1) the claim must be liquidated, as opposed to unliquidated, meaning it is readily computable via simple mathematics; and (2) the debtor must receive notice of the amount due before interest begins to accumulate. Bowles v. Sunrise Home Ctr., Inc., 847 P.2d 1002, 1005-06 (Wyo.1993); BHP Petroleum, 804 P.2d at 673; Holst v. Guynn, 696 P.2d 632, 635 (Wyo.1985). Finally, this Court has repeatedly held that, in the absence of a contractual agreement to a different percentage, the appropriate measure of prejudgment interest is the seven percent per annum stated in Wyo. Stat. Ann. § 40-14-106(e) (LexisNexis 2007). See, e.g., O's Gold Seed Co. v. United Agri-Products Fin. Servs., 761 P.2d 673, 677 (Wyo.1988); Holst, 696 P.2d at 635; and John Burk, P.C. v. Burzynski, 672 P.2d 419, 424 (Wyo.1983).
[¶ 46] KM contends that Elkhorn's claim was not liquidated, and that, therefore, prejudgment interest was not available to be awarded to Elkhorn. The district court disagreed, finding the claim "readily computable by simple mathematical computation[.]" Further, the district court found that KM had received notice of the claimed amount on March 5, 2009, which was the date the Lien Statement was filed. We will affirm, in good part for the same reasons that we affirmed the district court's finding that there are no genuine issues of material fact and that summary judgment is appropriate. Attached to the Lien Statement were 1,260 pages of labor and materials invoices, detailing the labor and materials supplied toward KM's project, detailing the amounts owed to Elkhorn under those invoices, and reflecting Newpoint's assurance that the amounts were due and payable. "[A] mere difference of opinion as to the amount due or as to liability does not preclude prejudgment interest if the amount sought to be recovered is a sum certain and the party from whom payment is sought receives notice of the amount sought." Wells Fargo Bank v. Hodder, 2006 WY 128, ¶ 61, 144 P.3d 401, 421 (Wyo.2006).
[¶ 47] This issue was raised by Elkhorn in its cross-appeal. The matter can quickly
[¶ 48] Based upon this limited concession, the district court stated in the summary judgment order that "[Elkhorn] agreed to deduct $181,369 from its original lien amount of $4,880,588.83 based on what it conceded to be legitimate issues raised by [KM], leaving the amount to be foreclosed at $4,699,219.83." The intent of this language is unclear. While stating that "the amount to be foreclosed [is] $4,699,219.83," the district court did not directly declare that the $181,369 was not owed. Rather, the court identified that sum as being subject to "legitimate issues." That suggests that, instead of eliminating Elkhorn's ability to recover the $181,369, the district court meant for that amount to be the subject of a bench trial. We will remand this matter to the district court for such proceedings.
[¶ 49] The district court concluded its summary judgment order with the following language: "based on the resolution of [Elkhorn's] mechanic's lien, the Court need not address [Elkhorn's] remaining claims." In its cross-appeal, Elkhorn takes the position that, by using this language, the district court "mooted" the issue of its oil and gas lien.
[¶ 50] An oil and gas lien claim is, of course, a creature quite unlike a mechanic's lien. First off, it applies to production and the proceeds of production, statutorily delineated means of production, and lands and leaseholds under particularized circumstances. Wyo. Stat. Ann. § 29-3-105 (LexisNexis 2007). Because of those distinctions, it would not appear that a decision as to a mechanic's lien would necessarily make the issue of an oil and gas lien claim moot. In addition, under Wyo. Stat. Ann. § 29-3-103(a)(vi), a successful oil and gas lien claimant may recover attorney's fees and other costs of collection.
[¶ 51] Because of these distinctions, and other statutory distinctions between a mechanic's lien and an oil and gas lien, we do not believe that resolution of a claim as to the former makes moot a claim to the latter. This case must be remanded to the district court to determine the validity and amount of Elkhorn's oil and gas lien claim. The district court will have to determine in the first instance whether the record is sufficient for it to make such a determination as part of the determination of the motions for summary judgment, or whether a bench trial on the issue is necessary.
[¶ 52] The automatic stay in the bankruptcy of the contractor, Newpoint, did not deprive the district court of jurisdiction to enter summary judgment in favor of the subcontractor, Elkhorn, in an in rem lien foreclosure action against the owner. Furthermore, because the lien foreclosure was an in rem proceeding not requiring the presence in the case of either Newpoint or HFG, the district court did not err in proceeding in their absence. Elkhorn presented a prima facie case in support of its motion for summary judgment, and KM's argumentative and speculative response did not prove the existence of genuine issues of material fact, making summary judgment appropriate. The labor and materials supporting the mechanic's lien claim were furnished under a contract and did not exceed the time and materials contract price, as determined by the conduct of the parties. Elkhorn's Lien Statement set forth both a mechanic's lien claim and an oil and gas lien claim. Prejudgment interest was an appropriate part of the damage award in the summary judgment order because Elkhorn's claim was a liquidated claim in the sense that it was readily determinable by simple mathematical computations. The district court did not determine that $181,369 of Elkhorn's lien claim was not valid; rather the district court determined that $181,369 of Elkhorn's lien claim was disputed, meaning that such requires remand and resolution in the district court. Resolution of the mechanic's lien claim in favor of Elkhorn did not make moot the issues of the validity and amount of Elkhorn's oil and gas lien claim.
[¶ 53] Affirmed in part and reversed in part and remanded to the district court for further proceedings consistent herewith.