2005-132 FASTRACK CRUSHING SERVICES, INC. v. ABATEMENT INTERNATIONAL/ADVATEX ASSOCIATES, INC.

charges. address the motions for summary judgment or attorney’s fees and late payment court’s ruling on the defendants’ motion to dismiss and therefore do not

(AGLIC), appeal an order of the Superior Court (

on the issue of attorney’s fees and late payment charges. We reverse the trial an order from the Superior Court (Morrill, J.) denying its motion to reconsider on the parties’ cross-motions for summary judgment. Fastrack cross-appeals (Fastrack), and an order of the Superior Court (McHugh, J.) in favor of Fastrack motion to dismiss the claim of the plaintiff, Fastrack Crushing Services, Inc.

Associates, Inc. (Advatex), and American Guarantee & Liability Insurance Co. BRODERICK, C.J. The defendants, Abatement International/Advatex

and orally), for the defendants. Rath, Young and Pignatelli, P.A., of Concord (Brian T. Tucker on the brief

Spinella, Jr. on the brief and orally), for the plaintiff. Errors may be reported by E-mail at the following address: Hall, Morse, Anderson, Miller & Spinella, P.C., of Concord (Frank P.

ABATEMENT INTERNATIONAL/ADVATEX ASSOCIATES, INC. & a.

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-132 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as superior court agreed and denied the motion to dismiss. This appeal followed.

p. 2 law that is reviewed

contracting party, file . . . in the office of the clerk of the superior 90 days after the completion and acceptance of the project by the

contended that RSA 508:10 (1997) allowed it to file a second action. The notice was filed with the court clerk after the ninety-day time period, but provisions of” sections 17 and 18. Fastrack conceded that the section 17

filing a claim on a statutory bond. Interpretation of a statute is a question of

RSA 447:18 (2002). defective notice, the suit was not timely filed within the one-year provision of machinery, tools, or equipment furnished as aforesaid shall, within

allegation . . . of the facts showing compliance by the claimant with the 2

one-year time periods included in those sections constitute preconditions to

with the clerk of the superior court. They further argued that, because of the corporation having any claim for labor performed, materials,

To obtain the benefit of the bond, any person, firm or

relevant part: We address the ninety-day requirement first. Section 17 states in

and (2) the petition itself was deficient as it did not, nor could it, “contain an de novo. See Crowley v. Frazier, 147 N.H. 387, 389 (2001).

must interpret sections 17 and 18 to determine whether the ninety-day and the claim. Although this comes to us as an appeal from a motion to dismiss, we clerk. Shortly thereafter it filed a new petition in the superior court to enforce comply with RSA 447:17 (2002) (amended 2004, 2005) because it was not filed Fastrack filed a statement of claim against the bond with the superior court court. The defendants moved to dismiss on the grounds that the notice did not subcontractor. Within one year of that notification, it filed suit in the superior and RSA 447:18. Fastrack failed to comply with the statutory notice requirements of RSA 447:17

Fastrack’s filings were untimely under sections 17 and 18 of RSA chapter 447; Advatex and AGLIC moved to dismiss the petition on two grounds: (1)

almost three and one-half years after the project’s completion and acceptance, Assocs., 149 N.H. 661, 664-67 (2003). Within ninety days of that decision, but not been paid what it was owed under its contract with a first-tier Fastrack Crushing Servs. v. Abatement Int’l/Advatex

the grounds that, although it had given actual notice to the defendants, Fastrack prevailed on its claims in the superior court, but we reversed on

15, 2000. Within ninety days, Fastrack notified Advatex and AGLIC that it had on the project from AGLIC. The project was completed and accepted on June contractor. Pursuant to RSA 447:16 (2002), Advatex obtained a payment bond subcontractor on a public works project for which Advatex was the general The record supports the following facts. Fastrack was a second-tier types of statutes, permitting

p. 3 principal or surety will arise until the claimant complies with the notice before a job’s completion and acceptance, no cause of action against a bond’s claim against the bond. Accordingly, except where a petitioner files its notice

requirements of that section. This construction reflects the policy behind these against statutory bonds.

day time period as required by RSA 447:17 is a condition precedent to any In light of the foregoing, we now hold that giving notice within the ninety-

145, 147 (N.D. Ill. 1997) (same). have not countenanced any violations of the letter of RSA 447:17. (1970)); construed. Aside from this special circumstance, however, we American Build & Contract Supply v. Bradley Const., 960 F. Supp. 649 F.2d 29, 31 (1st Cir. 1981) (construing Miller Act, 40 U.S.C. § 270b even in cases where the underlying statute must be strictly passed by Congress. See, e.g., United States, Etc. v. J. F. White Contracting, Such a rule has been adopted by federal courts interpreting similar provisions time window. For this reason, premature notice that is “in form advantageous to the respondent than notice within the statutory See 17 Am. Jur. 2d Contractors’ Bonds § 113 (2004). 17 are generally considered conditions precedent to the right to maintain a suit statutorily designated party. Premature notice is, if anything, more Compliance with time periods such as the ninety-day provision of section

Id. at 667 (citations omitted).

given before completion and acceptance of the job.. . . in strict compliance with the statute” is not fatal to the claim,

failed to file any notice at all with the superior court clerk, the merely a premature delivery of proper notice, here [Fastrack] has [W]hereas the deficiency alleged in New England Culvert involved rights, those rights can only be enforced by the means specified in the statutes. we declined to do. Fastrack, 149 N.H. at 666-67. We stated: asked us to extend the reasoning of New England Culvert to this case, which Williams Constr. Co., 105 N.H. 235, 238-39 (1963). Fastrack has previously

a violation of the ninety-day rule was where the statutorily required notice was The only situation in which we have allowed a claim to go forward despite

strictly observed. Id. at 136. settled that to give proper notice, the requirements of the statute must be See American Fidelity Co. v. Cray, 105 N.H. 132, 135 (1963). Our law is well

RSA 447:17. We have previously held that where statutes create claimants’

performed . . . a statement of the claim . . . . court for the county within which the contract shall be principally the first judgment.

p. 4 suit the plaintiff filed a new writ, thus reinstating his remaining claims.

RSA 508:10 is whether the right of action is, or is not, barred by

508:10 was designed to protect.

he appealed the motion for summary judgment. Within one year of the non-

the right of action or determining it upon its merits. The test of seasonably brought, should be dismissed for reasons not barring 4 after the general limitation has run . . . where a prior action,

seasonably brought, we held that he was the kind of “diligent suitor” RSA Id. at 725 (quotation omitted). Because the plaintiff’s original action was

urging, the plaintiff entered a voluntary non-suit on his remaining claims while summary judgment motions relating to some of his claims. At the trial court’s corporation. The trial court subsequently ruled against the plaintiff on

Essentially, RSA 508:10 serves to permit an action to be brought

we stated: Roberts may be brought thereon in one year after the judgment., 140 N.H. at 724-25. In allowing the plaintiff to again file his claims and the right of action is not barred by the judgment, a new action within the time limited therefor, or upon a writ of error thereon,

second suit: contractors and subcontractors. 723 (1996). In that case, a plaintiff had filed various claims against a First, Fastrack relies upon Roberts v. General Motors Corp., 140 N.H.

safeguard itself.”). RSA 508:10. owing to subcontractors to ensure the prime contractor has some way to contractors by allowing them to exercise retainage rights on payments due and

If judgment is rendered against the plaintiff in an action brought

claim to go forward. That section sets forth the requirements in order to file a alternative of interminable delay in settlements between prevents both double payments by prime contractors and the Fastrack makes various arguments why RSA 508:10 should allow its subcontractors or materialmen. The notice provision thus

[10] [e] (May 2004) (“These statutes are, typically, intended to protect prime and quotations omitted); see also 5 S.G.M. Stein, Construction Law ¶ 17.03 J. W. Bateson Co. v. Board of Trustees, 434 U.S. 586, 590 n.4 (1978) (citation

subcontractors without fear of additional liability to subthe prime contractor, after waiting ninety days, safely to pay his contractors. p. 5 447:17 would vitiate the policy behind the statute protecting general

undetermined.” failed to meet the requirements of RSA 447:18.

Adopting Fastrack’s reading of RSA 508:10 for claims arising out of RSA

in its brief explaining why RSA 12-G:30, II applied. DALIANIS, DUGGAN and GALWAY, JJ., concurred.

previously. Reversed. G:30, II (2003). Fastrack made this argument when this case was before us act of the court, when either would leave them with a cause of action, yet are compelled to abandon their present action, whether by their own act or the 447:17, we need not address the defendants’ arguments that Fastrack also writ, but rather in the substance of its claim. “The statute benefits suitors who Because we hold that Fastrack failed to meet the requirements of RSA

(1987). Eastern Marine Const. Corp. v. First Southern Leasing, 129 N.H. 270, 273 therefore was left with no cause of action for which its writ could be amended. res judicata precludes Fastrack from raising this argument again now. See

having held that Fastrack waived the argument by failing to present arguments dismissing Fastrack’s claim. Fastrack, 149 N.H. at 663-64. We did not decide that issue, suitor RSA 508:10 was intended to protect, and the trial court erred by not in that the bond at issue is in fact a common law bond by virtue of RSA 12- Finally, Fastrack argues that there is an alternative basis for affirmance

that the reason for dismissal of its claim in that case was not a defect in the

notice under RSA 447:17, Fastrack failed to meet a condition precedent and ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993). Having never given proper will be precluded where the amended complaint fails to cure the deficiency.

Roberts, 140 N.H. at 725 (quotation omitted). A second action chance to make claims upon the bond. Having done so, it is not the diligent

not on the merits of its claim. What Fastrack fails to recognize, however, is the ninety-day period had expired, and because our decision in that case was amend its writ in timely fashion because Fastrack was not decided until after Fastrack next argues that it never had a meaningful opportunity to

requirement of RSA 447:17, Fastrack failed to assert its rights and thus lost its N.H. at 726 (quotation omitted). Because Fastrack did not meet the ninety-day to protect . . . is the plaintiff who has not slept on his rights.” Roberts, 140 But as we stated in Roberts, “the diligent suitor whom the saving statute seeks Fastrack argues that it, like the plaintiff in Roberts, is a diligent suitor.