At issue in this appeal is the construction of A.R.S. § 33-1002(B) as it existed in 1976 and 1977
Cross motions for summary judgment were filed. The appeal is from the granting of appellees' motion for summary judgment foreclosing appellees' liens on appellants' property and from the denial of appellants' cross motion for summary judgment. The facts are not in dispute. This court has jurisdiction of the appeal pursuant to A.R.S. § 12-2101.
Appellants, Joe Riley, Jr., and Ernestine Riley, purchased the property in 1976 with a dwelling on it. Appellants entered into an agreement with a general contractor for remodeling and alteration of the dwelling. After the work began, appellants decided that the dwelling could not be remodeled and they agreed with the contractor to completely remove the dwelling except for the concrete slab, foundation, and such plumbing as remained in the foundation. A house somewhat similar in design to the original dwelling was thereafter constructed, using the original slab and foundation as well as some new foundation. Appellees furnished labor and materials for the construction to the general contractor. Appellees had no written contract with appellants. The general contractor eventually left the job and defaulted. Appellees were not paid and filed timely notices and claims of lien.
In 1976 and 1977, A.R.S. § 33-1002(B) provided:
A.R.S. § 33-1002(A) defined "dwelling" and "owner-occupant" as follows:
A.R.S. § 33-1002(A) was amended significantly by Laws 1979, Ch. 202, § 4, as follows:
Appellants first contend that A.R.S. § 33-1002 as it existed in 1976 and 1977 applied to the construction of new dwellings. We must determine the legislative intent as expressed by the words used in the statute. 2A Sutherland, Statutes and Statutory Construction § 45.05, at 16
Appellants also contend that inasmuch as there was an existing dwelling on their property, and the original slab, foundation, footings and underground plumbing were retained and incorporated into the reconstructed dwelling, the dwelling was at all times an "existing structure" within the definition of A.R.S. § 33-1002(A). Appellees argue that the demolition of the house down to the foundation caused it to cease to exist as a dwelling, and the subsequent construction was of an entirely new structure which was not covered by A.R.S. § 33-1002(A) as it was written in 1976.
Appellants have attached as an appendix to their opening brief minutes of a legislative committee hearing on the original statute which was adopted in 1973. Such minutes are entitled to consideration if properly introduced. However, the minutes were not part of the record which was presented to and considered by the trial court. Only those matters of record which were considered by the trial court may be considered by the appellate court on review. Crook v. Anderson, 115 Ariz. 402, 565 P.2d 908 (App. 1977). Accordingly, appendix D to appellants' opening brief must be disregarded.
In Board of Commissioners of Guadalupe County v. State, 43 N.M. 409, 94 P.2d 515 (1939), the court stated:
Id. at 414, 94 P.2d at 518.
We hold that by any reasonable interpretation of the term "existing structure," the construction and work performed in this case was the erection of a new dwelling on the property. The provisions of A.R.S. § 33-1002 in effect in 1976 and 1977 were not applicable to the erection of a new dwelling.
Appellants have argued that a subsequent amendment of a statute which has a doubtful meaning is strong evidence of what the legislature intended in the first statute. 2A Sutherland, Statutes and Statutory Construction § 49.11 (4th ed. C.D. Sands 1973); Ebasco Services Inc. v. Arizona State Tax Commission, 105 Ariz. 94, 459 P.2d 719 (1969); Police Pension Board of City of Phoenix v. Warren, 97 Ariz. 180, 398 P.2d 892 (1965); City of Mesa v. Killingsworth, 96 Ariz. 290, 394 P.2d 410 (1964).
However, if the legislative amendment is made after a considerable lapse of time and constitutes a clear and distinct change of the operative language, it is an indication of an intent to change rather than clarify the previous statute. 2A Sutherland, Statutes and Statutory Construction § 49.11, at 266 (4th ed. C.D.Sands 1973); In re Dilse, 219 N.W.2d 195 (N.D. 1974). See also Finch v. State Department of Public Welfare, 80 Ariz. 226, 295 P.2d 846 (1956); Sterman v. Transamerica Title Insurance Co., 119 Ariz. 268, 580 P.2d 729 (App. 1978); Pace v. Hanson, 6 Ariz.App. 88, 430 P.2d 434 (1967); Brown v. White, 2 Ariz.App. 295, 408 P.2d 228 (1965).
We hold that on the undisputed facts of this case the trial court properly granted summary judgment foreclosing appellees' liens on appellants' property, and denied appellants' cross motion for summary judgment. The judgments of the trial court are affirmed.
EUBANK, P.J., and HAIRE, J., concur.