2009-698, Alex Builders & Sons, Inc. v. Michael Danley & a.

No. 2009-698

Rockingham

services, the plaintiffs had failed to pay an outstanding balance of $45,391.75. ___________________________ further alleged that despite their promise to pay for those materials and services in constructing a home at 26 Odiorne Point, Portsmouth. The writ unjust enrichment, alleging that it had supplied materials and performed sued the defendants under theories of breach of contract, quantum meruit and The record supports the following facts. On March 26, 2009, the plaintiff

the Superior Court (Lewis HICKS, J. The plaintiff, Alex Builders & Sons, Inc., appeals an order of

Hoefle, Phoenix, Gormley & Roberts, P.A. Coughlin, Rainboth, Murphy & Lown, P.A.

of the defendants, Michael and Ann Marie Danley. We reverse and remand.

Murphy on the brief and orally), for the defendants.

Gormley on the brief and orally), for the plaintiff.

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as cited by [the plaintiff] in Manchester Federal Sav. and Loan p. 2 II. Did the trial court err in failing to distinguish the authority

noncompliance with the statutory requirement?

lien as a result of its finding of a defective writ and I. Did the trial court err in ordering dissolution of the mechanic’s

holdings in Manchester Federal Sav. and Loan Ass’n

law: Supreme Court Rule 8, the trial court transferred the following questions of 2 lien had not been properly perfected. By interlocutory appeal pursuant to papers,” the court ruled that the writ was defective and that the mechanic’s After hearing and review of the writ of attachment “and other pertinent

is to be considered as an integrated [w]hole[?] Raymond P. D’Amante, P.A., 142 N.H. 213 (1997) that the filing Holden Engineering & Surveying, Inc. v. Law Offices of

recitations to perfect a mechanic’s lien, contrary to the is the sole appropriate location on the writ for the required I p. 2 II. Did the trial court err in finding that the so-called “blue form” The defendants objected to the ex Lathing v. FDIC, 135 N.H. 262 [(1992)]? Ass’n v. Letendre, 103 N.H. 64 (1960), from Gothic Metal

this writ” by leaving a copy of the writ and return at the registry of deeds. tenements in Rockingham County “to the exten[t] ordered on the reverse side of person making the attachment had attached the defendants’ lands and $50,000. The return of service on the writ of attachment indicates that the the Petition, asserts the appropriate notice language.” which repeatedly, in the heading, in Paragraph ‘B’ and on the second page of sheriff to attach the goods or estate of the defendants up to the value of totaling the five pages on record at the Registry of Deeds, includes the Petition, process, sometimes referred to as the “blue form,” which commanded the attached. The plaintiff moved to supplement the record, alleging that its “writ, The plaintiff’s attorney also completed a writ of attachment and trustee to perfect a mechanic’s lien and failed to accurately describe the property to be that the writ of attachment was defective because it failed to specify its purpose

PARTE MECHANICS LIEN.” (Bolding and underlining omitted.) Tax Map 224, Lot 10-002.” The pleading was entitled: “PETITION FOR EX limited, to 26 Odiorne Point Road, Portsmouth NH 03801, aka Tucker’s Cove, the defendants described as: “Any and all Real estate located at, but not parte attachment, “in accordance with RSA 447 and 511-A:8,” on property of Also on March 26, 2009, the plaintiff petitioned the superior court for an ex p. 3 Gothic Metal Lathing

specificity, and direct the officer to attach that specific property. describe the property to be attached with reasonable accuracy and

must state the purpose for which the attachment is brought, sufficiency of a writ of attachment for purposes of RSA 447:10. It

Our cases set forth a three-part test to determine the

The issue before us is the sufficiency of the writ. attachment and petition for ex The plaintiff argues that the trial court erred in failing to read the writ of

of Attachment itself that must be reviewed to determine compliance.” In other hand, assert that the “statute and case law make clear that it is the Writ purpose of the Writ is to perfect a mechanic’s lien.” The defendants, on the supporting documents, should be read together to determine whether the Attachment, the Writ itself and the accompanying declaration or other 213 (1997), support the position that “the documents that make up a Writ of Engineering and Surveying v. Law Offices of Raymond P. D’Amante, 142 N.H. Manchester Savings &c. Ass’n v. Letendre, 103 N.H. 64 (1960), and Holden

distinctly expressing that purpose.” RSA 447:10. which it exists at any time while the lien continues, the writ and return thereon usually fatal). provides: “Any such lien may be secured by attachment of the property upon failure to comply with RSA chapter 447’s performance bond provisions is 447:9 (2002), and may be secured in accordance with RSA 447:10, which Gen. Insulation Co. v. Eckman Constr., 159 N.H. 601, 608 (2010) (noting that 120 days after the services are provided or the materials are furnished, RSA is usually fatal.” Rodd v. Titus Construction Co., 107 N.H. 264, 266 (1966); cf. to the lot of land on which it stands.” RSA 447:2 (2002). The lien continues for to comply with the specific statutory provisions of perfecting a mechanics lien any material so furnished and on said structure, and on any right of the owner 447:12-a (2002) (priority over construction mortgages). Accordingly, “[f]ailure the amount of $15 or more,” for building or repairing a house, has “a lien on right of recovery in the form of priority over certain other liens, see RSA Under RSA 447:2, a person who performs labor or furnishes material, “to 511-A, and, in particular, RSA 511-A:8), and the statute affords an enhanced Maine Nat’l Bank v. Baker, 116 N.H. 185, 186 (1976) (discussing RSA chapter because “[t]he remedy of attachment is in derogation of the common law,” compliance with the test. Id. Insistence upon strict compliance is warranted

438 (2009). question of law that we review de novo. See Zorn v. Demetri, 158 N.H. 437, for securing a mechanic’s lien, see RSA 447:10 (2002), which presents a Answering these questions requires us to interpret the statutory requirements p. 4 Id

whole and that RSA 447:10 so intended. the declaration and the lien command, must be regarded as a

short, we believe the instrument here, including the writ proper,

Similarly, in Holden Engineering 4

attachment is sufficiently stated.” p. 4 Id. at 216. that the attachment is made to secure a mechanic’s lien, the purpose of the whole, and that so long as the writ and return taken together distinctly express return’ contained in RSA 447:10 refers to the instrument as an integrated serve its intended purpose they must be considered together. In construction of its terms.” Impact Food Sales v. Evans service.” Holden Eng’g and complementary portion of a whole, and to cause this whole to, 142 N.H. at 215. We held that “the phrase ‘writ and requirements, “strict compliance with a statute does not equate to strict lien to be “explicitly stated twice, once in the writ and again in the return of separate and distinct except as to content. . . . Each is an integral In Manchester Savings of RSA 447:10 that would have required the purpose to secure a mechanic’s cannot be said as a practical matter that the two are necessarily [W]hile in a technical sense we speak of a writ and a declaration, it, we rejected an overly technical reading

. at 69.

suggest. Although we demand strict compliance with the statute’s Our cases have not construed the statute as strictly as the defendants

reserved for it in the writ. p. 4 Id. We found the writ sufficient, concluding: command to the sheriff in that case was too long to fit in the usual space purpose thereof should be inserted.” Id. In addition, we noted that the entire direction as to the place where the command to attach and the statement of the 68. In rejecting that challenge, we noted that the statute contains no “express stapled to the second page of the specifications. Manchester Sav., 103 N.H. at as required by RSA 447:10, because it appeared on a separate sheet of paper challenged on the ground that the command to the sheriff was not in the writ,

594 (2007). intended to benefit. See, e.g., Stankiewicz v. City of Manchester, 156 N.H. 587, to construe remedial statutes liberally in favor of the person the statute is of others.” Innie v. W & R, Inc., 116 N.H. 315, 317 (1976). The general rule is furnish labor or materials which are used to enhance the value of the property the mechanics’ lien law is remedial, to guarantee effective security to those who (2010) (Hicks, J., dissenting). This is especially true where “[t]he purpose of

record the attachment.” blue Writ form not the pleading filed with the Court to obtain authority to addition, they claim that “[t]he words the ‘writ and return’ clearly refer to the in the command to attach is fatal. p. 5 Rockingham County. We must determine, therefore, whether this overbreadth attachment attached “all the lands and tenements” of the defendants in precinct, and the sheriff’s return indicates that the person making the sheriff to “attach the goods or estate” of the defendants to be found in his that prong here as well. Specifically, the writ of attachment commands the overinclusion is also implicated under the third prong of the test, we address includes property in addition to 26 Odiorne Point Road. Because this issue of The more difficult question is whether the description fails because it specify the actual property subject to the lien but instead made reference to all the petition failed to sufficiently describe the property because it “did not aka Tucker’s Cove, Tax Map 224, Lot 10-002.” The defendant contends that located at, but not limited, to 26 Odiorne Point Road, Portsmouth NH 03801, The petition also sought permission to attach “[a]ny and all Real estate

and tax map designation, is sufficient under our test. The description at issue here, which identifies the property by street address (requiring property to be described “with reasonable accuracy and specificity”). three-part test for compliance. See certainty.” Innie, 116 N.H. at 317; see Gothic Metal Lathing, 135 N.H. at 263 We now address whether the writ and petition in this case meet the the property, so that the attached real estate may be identified with reasonable mechanic’s lien. This language plainly expresses that the attachment’s purpose is to secure a reference; rather, our cases require only “a reasonably accurate description of have never required the property description to contain a book and page pursuant to RSA 447:10, against the specific real properties specified above.” Page, but instead a City Tax Map.” We reject the latter argument because we also specifically states that “[t]his attachment is to secure a Mechanics Lien property of the Defendants” and “[i]n addition, . . . did not reference a Book and LIEN” (bolding and underlining omitted) and references RSA chapter 447. It The petition states that it is a “PETITION FOR EX PARTE MECHANICS

the writ of attachment directs the sheriff to attach that property. perfect a mechanic’s lien and identifies the real property to be attached, and The plaintiff asserts that they do because the petition states the purpose to

the lien. be taken together with it, as an integrated whole, for the purpose of securing for ex parte mechanic’s lien, which was recorded with the writ and intended to compliance with the statute consists of the writ of attachment and the petition Sav., 103 N.H. at 69; Holden Eng’g, 142 N.H. at 216, to be assessed for We conclude that on the facts of this case, the “instrument,” Manchester p. 6 RSA 447:10, against the specific real properties specified above.

This attachment is to secure a Mechanics Lien pursuant to

on the property sought to be attached. . . . . with goods and services utilized in the construction of a new home Within the last 120 days Plaintiff has provided Defendants,

The petition also states:

amount of $45,391.75.

have failed and refused to remit payment for said services in the

the same. Despite repeated requests by the Plaintiff, Defendants and as contracted, based upon the Defendants’ promise to pay for Tucker’s Cove, Portsmouth, NH. Plaintiff performed the services Defendants’ property, located at 26 Odiorne Point Road aka

materials and services for construction of a new home on the a contract with Plaintiff by which Plaintiff agreed to provide We conclude that the writ of attachment and the petition for ex Defendants, Michael and Ann Marie Danley (“Danley”) entered into

right to recover, and the amount thereof: certifie[d] the following facts to establish probable cause for the

parte mechanic’s lien states that the plaintiff property on which the plaintiff performed work. Specifically, the petition for ex whole delineates the extent of the plaintiff’s mechanic’s lien by identifying the that upon which the lien created under RSA 447:2 exists, the instrument as a property description and command to the sheriff include more property than mechanic’s lien, taken together, meet these requirements. Although the

furnished. RSA 447:2, :10. to describe the property on which the labor was performed or the materials lien.” Rodd, 107 N.H. at 266. To satisfy these requirements, we require the writ reasonable accuracy” and must “direct the officer to attach it to preserve his plaintiff’s writ must “describe the property on which he claims a lien with We have stated that in order to secure a mechanic’s lien under RSA 447:10, the which, again, is the property on which the work was performed. RSA 447:10. created under RSA 447:2 by attaching the property on which that lien exists, materials furnished. RSA 447:10, in turn, provides for securing the lien RSA 447:2 is limited to the property on which the labor was performed or the land on which that house stands. RSA 447:2. Thus, the lien arising under furnished by the attaching laborer or supplier, and upon the owner’s right in upon the house that was built or repaired with labor performed or materials As previously noted, RSA 447:2, in relevant part, creates a statutory lien p. 7 Annotation, Sufficiency of Notice, Claim, or Statement of Mechanic’s Lien with

third parties are not affected. description is not fraudulent or grossly misleading and innocent description and to which a lien may properly attach, at least if the

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ.,

lien upon so much of the land as is encompassed within the than that to which the lien may properly attach does not vitiate the [I]t has often been held or stated that the inclusion of more land

not subject thereto under RSA 447:2 is simply ineffectual and void. identification.’”). Any attempted assertion of a mechanic’s lien over property inclusion of such excess constitutes a description that is not ‘sufficient for much land in its description of the liened property, it cannot be said that 658, 663 (Ariz. Ct. App. 1973) (noting that “[a]lthough appellant did include too were met. See Adams Tree Serv., Inc. v. Transamerica Title Ins. Co., 511 P.2d it, i.e., 26 Odiorne Point Road. The statutory requirements as to that property be attached does not void its mechanic’s lien on the property validly subject to We adopt this rule and conclude that the plaintiff’s overinclusion of property to properly subject to it. Respect to Description or Location of Real Property in a claimed mechanic’s lien does not invalidate the lien on the property, 52 A.L.R.2d 12, 83 (1957). Furthermore, several jurisdictions hold that the overinclusion of property

which the plaintiff may validly claim a mechanic’s lien under RSA 447:2. makes clear that the property at 26 Odiorne Point Road is the only property on Thus, although the description and command are overbroad, the petition