2009-102 & 2009-103, General Insulation Company v. Eckman Construction & a.

Company.

respondents Youngblood Co., Inc. and International Fidelity Insurance Moore and Anthony S. Augeri on the brief, and Mr. Moore orally), for Devine, Millimet & Branch, P.A., of Andover, Massachusetts (George R.

American Specialty Insurance Company. respondents Eckman Construction, Northern Peabody, LLC and North Donovan and Michael J. Kenison on the brief, and Mr. Kenison orally), for McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Thomas J.

orally), for the petitioner. Sherman Law, PLLC, of Portsmouth (John P. Sherman on the brief and

to press. Errors may be reported by E-mail at the following address: Opinion Issued: January 28, 2010

2009-103 Nos. 2009-102 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 the surety on the statutory performance bond issued to Youngblood. p. 2 performance bond issued to Northern Peabody, and International Fidelity was According to the petitioner, North American was the surety on the statutory

enrichment/restitution and quantum meruit.

Insulation was a subcontractor to Northern Peabody and Youngblood.

enforce the statutory bonds and to assert common law claims for unjust

opinion as to their validity.

Northern Peabody and Youngblood were subcontractors to Eckman; Advanced Project” in Bedford. Eckman was the general contractor on the project. Insulation) for a bonded project known as “Bedford Middle/High School 2007. On March 6, 2008, the petitioner filed petitions in superior court to

petitions against Advanced Insulation remain pending and we express no

August 2008, after the court issued orders of notice to the respondents.

required by RSA 447:18 (2002).

respondent R & H Enterprises d/b/a Advanced Insulation (Advanced court pursuant to RSA 447:17. It amended this notice of claim on May 3,

and did not separately file a motion to dismiss. Accordingly, the petitioner’s Insulation did not join the motions to dismiss filed by the other respondents petitions, which the trial court granted, and this appeal followed. Advanced see also Super. Ct. R. 124. The moving respondents moved to dismiss the

did not provide the respondents with copies of its petitions, however, until

respondents with copies of the petitions within one year of filing its claims as statutory performance bonds because the petitioner failed to provide the respondents). The trial court dismissed the petitioner’s petitions to enforce respondents did not pay for insulation and related materials it supplied to On March 15, 2007, the petitioner filed a notice of claim in superior

447:16.

Insurance Company (International Fidelity) (collectively, the moving The record evidences the following facts. The petitioner claims that the

I. Background

allege sufficient facts to support them. We affirm and remand. enrichment/restitution and quantum meruit because the petitions failed to also dismissed the petitioner’s alternative claims for unjust

American), Youngblood Co., Inc. (Youngblood) and International Fidelity (Northern Peabody), North American Specialty Insurance Company (North filed by respondents Eckman Construction (Eckman), Northern Peabody LLC an order of the Superior Court (Abramson, J.) granting the motions to dismiss DUGGAN, J. The petitioner, General Insulation Company, appeals from p. 3 (the contractor or subcontractor).” 3 S. Stein,

owner’s property.” 3 Stein,

performance of contract obligations owed to the second party by its principal promises a second party (the owner or general contractor) the successful bond is a three-party instrument by which one party (the surety) guarantees or subcontractors and suppliers, who might otherwise file liens against the

to include. public works projects and the statutory scheme that governs such bonds. “A payment bond assures the owner that the prime contractor will pay its legislature might have said or add language that the legislature did not see fit Neck Prop. Owners Assoc. v. Town of Wolfeboro, 146 N.H. 449, 453 (2001). “A perform according to the contract referenced in the bond.” Id.; see Wolfeboro “A performance bond guarantees to the owner that a prime contractor will guarantees that the bidder will enter into the contract for the bid amount. Id. or purpose sought to be advanced by the statutory scheme. bid bonds, performance bonds, and payment bonds. Id. A bid bond at App. 9-27 (Sept. 2006). Three kinds of bonds are common in construction:

the trial court’s statutory interpretation

We begin with a brief general discussion regarding bonds issued for further indication of legislative intent, and we will not consider what the

words of the statute considered as a whole. the legislature’s intent and to interpret statutory language in light of the policy Elks v. Marcoux, 149 N.H. 581, 585 (2003). This enables us to better discern isolation, but within the context of the statute as a whole. Franklin Lodge of N.H. 625, 628 (2008). Additionally, we do not consider words and phrases in statutory scheme and not in isolation. Liam Hooksett, LLC v. Boynton, 157 respondents within one year of filing its claim under RSA 447:17. We review Id. We also interpret a statute in the context of the overall

a statute’s language is plain and unambiguous, we need not look beyond it for

N.H. 67, 72 (2008). We first examine the language of the statute, and, where

We are the final arbiters of the legislature’s intent as expressed in the

RSA 447:18 to require it to send copies of its petitions to the moving The petitioner first argues that the trial court erroneously interpreted

A. Compliance with RSA 447:18

II. Discussion repair of equipment used in carrying out said contract. p. 4 labor and parts furnished upon the order of said contractor for the by said principal and used in carrying out said contract, and for

fuels, lubricants, power, tools, hardware and supplies purchased

equipment hired, including trucks, for all material used and for

subcontractors for all labor performed or furnished, for all upon, conditioned upon the payment by the contractors and of the estimated cost of the work if no aggregate price is agreed

project by the contracting party” file with the proper public entity “a statement

in an amount equal to at least 100 percent of the contract price, or

claimant must “within 90 days after the completion and acceptance of the

execution of the contract, sufficient security, by bond or otherwise, expenditure of less amount, obtain as a condition precedent to the involves an expenditure of $25,000, and may if it involves an

To obtain the benefit of bonds issued pursuant to RSA 447:16, a

Erectors Inc. v. Company, 86 N.H. 349, 350 (1933). Petition of Keyser, 97 N.H. 404, 407 (1952) (quotation omitted); Guard Rail them and at the same time to save the state or municipality from annoyance.” an alternative security to lienors, in general more practically adapted to protect The purpose of this provision, which was first enacted in 1927, is “to furnish

highways, bridges or other public works shall if said contract

bonds at issue. assume for the purposes of this appeal that RSA 447:16 to :18 govern the

construction, repair or rebuilding of public buildings, public in behalf of the state or any political subdivision thereof for the combined.” 3 Stein, Officers, public boards, agents or other persons who contract

RSA 447:16 provides:

of their claims against the municipality.” 14 P. Loughlin, suppliers, and laborers who otherwise might be without recourse for payment though the petitioner characterizes them as performance bonds. We, therefore, § 789, at 46, no party argues that they do not govern the bonds at issue even appears that these statutes only apply to payment bonds, see Loughlin, supra RSA 447:16 to :18 govern bonding for public works projects. Although it

“Performance and payment bonds can be separate documents or may be provisions requiring the posting of performance and/or payment bonds.” Id. municipal contracts, especially capital building contracts, must have Practice, Local Government Law § 789, at 45 (1995). In New Hampshire, “[a]ny

project,” while “[a] payment bond is exacted for the protection of materialmen, exacted for the protection of the public body to guarantee completion of a owners.”

p. 5 parity, in respect to their liens, with those who perform a like service for private those who supply materials [and labor] for the erection of state property on a furnishing materials or supplies.” The purpose of this lien provision “is to put the respective amounts due such party claimants.” claims as herein provided, and to the principal and surety or sureties, and find

performance of which contract the lienor participated by performing labor or

duly filed” and hold a hearing, “with notice to all creditors who have filed

contract for any public work or construct, alteration, or repair, in the due from the state or from any political subdivision thereof by virtue of any order.” RSA 447:18. The court then “shall examine all claims having been (2002) allows for a mechanic’s lien to attach “to any money due or to become copy to the principal and surety, and such further notice as the court may notice of claim],” files a petition in superior court to enforce the claim “with Signs, Inc. v. Evroks Corp., 132 N.H. 156, 158 (1989).

American Bridge Co. v. Company, 87 N.H. 62, 63 (1934); see Lyle use.

In addition to the remedy of seeking payment on the bond, RSA 447:15

statutory bond provided that the claimant, “within one year after filing [the 136. failure to comply with RSA 447:18 is “usually held fatal.” Cray, 105 N.H. at Id. As with the failure to comply with RSA 447:17, we have held that the claims, or require such official to furnish a copy of such claims” for the court’s interminable delay in settlements between contractors and subcontractors.” “the attendance of any official with whom claims have been filed, with such

In the event that there is no settlement, a claimant may sue on a

Id. (quotation omitted). 447:17 is a condition precedent to any claim against a statutory bond. prevents both double payments by prime contractors and the alternative of 153 N.H. at 287 (quotation omitted). The notice required by RSA 447:17 “thus fear of additional liability to sub-subcontractors or materialmen.” Fastrack II, purpose is to allow the prime contractor to pay his subcontractors “without Envtl. v. Abatement Int’l/Advatex Assocs., 149 N.H. 671, 674 (2003). Another an opportunity to settle the claim without resorting to litigation.” Mountain “[T]he main purpose of [this] notice requirement is to provide parties with

287 (2006) (Fastrack II). Fastrack Crushing Servs. v. Abatement Int’l/Advatex Assocs., 153 N.H. 284,

have also held that giving notice within the ninety-day period required by RSA Abatement Int’l/Advatex Assocs., 149 N.H. 661, 666 (2003) (Fastrack I). We Fidelity Co. v. Cray, 105 N.H. 132, 136 (1963); see Fastrack Crushing Servs. v. of claim be filed with the designated party “is usually held fatal.” American held that the failure to comply with the statutory requirement that a statement mail by the office where it is filed to the principal and surety.” Id. We have of the claim.” RSA 447:17. A copy of the statement of claim is then “sent by p. 6 We will not interpret a statute to require such an illogical result.

receive, process, and return an Order of Notice for service on a Respondent.”

for a party filing a Petition to predict when a particular Court might be able to issue orders for further notice. As the petitioner contends: “[I]t is impossible the court may order” because a petitioner has no control over when a court will

copy of such Petition within a specific timeframe (i.e., one year).” surety.” It would not make sense to apply the phrase to “such further notice as

Enforce” and “does not create a specific obligation to provide a Respondent a year after filing such claim” are “file a petition” and “with copy to principal and

reddendo singula singulis and the words giving power and authority limited to is to read and examine the text of the statute and draw inferences concerning words apply to the several branches of the clause. It may be construed State v. are found at the beginning of a clause, it is not necessary that each of the

J.D. Singer,

447:18 qualifies and relates only to the date of the filing for the Petition to RSA 447:18 because “[t]he one year statute of limitations contained in RSA In this case, the subjects most properly related to the phrase “within one March 2007 claim. The petitioner argues that, nonetheless, it complied with the phrase “within one year after filing such claim” applies.

grammar and composition, a widely accepted method of statutory construction 2007). Thus, “[w]here several words granting power, authority, and obligation

Statutes and Statutory Construction § 47.26, at 438 (7th ed. mandatory enforcement.” that seem most properly related by context and applicability.” 2A N. Singer &

rules of statutory construction, the word ‘shall’ is a command, which requires they are to be read distributively. The words are to be applied to the subjects “Where a sentence contains several antecedents and several consequents

the moving respondents until August 2008, more than one year after filing its 12, 17 (1985) (quotation omitted). Here, we must determine to what subject

“Although the legislature is not compelled to follow technical rules of

surety, and such further notice as the court may order.” “Pursuant to general

The petitioner concedes that it did not provide copies of its petitions to

must be strictly observed.” Id. (quotation omitted). law is well settled that in giving statutory notice the requirements of the statute Substantial compliance with this statute does not suffice. See id. at 666. “Our

his claim or intervene in a petition already filed, with copy to the principal and year after filing such claim, file a petition in the superior court . . . to enforce RSA 447:18 provides, in pertinent part: “Said claimant shall, within one

p. 7 first files the petition and again when the petitioner is ordered to serve the

respondents with two copies of the same pleading, once when the petitioner notice.” In other words, the statute requires that the petitioner provide the the first notice and court-ordered notice given thereafter is “such further

respondents with a copy of its petitions within one year after filing its notice of

different interpretation.”

of the filing of a lawsuit under similar circumstances.

principal and surety when the petition is filed is in addition to any court-

same person or thing last mentioned.” read on its own. In this case, because the petitioner did not provide the moving

date suit was filed).

there is something in the subject matter or dominant purpose which requires a

New Hampshire is not alone in requiring a petitioner to provide separate notice

antecedent rule. this rule, “such further notice” means that the copy of the petition given to

‘such,’ when used by way of reference to any person or thing, shall apply to the together, while the phrase “such further notice as ordered by the court” is to be Railroad, 75 N.H. 435, 442 (1910). RSA 21:14 provides: “The words ‘said’ and phrases “file a petition” and “with copy to principal and surety” are to be read This rule has been adopted by statute. See RSA 21:14 (2000); Piper v. ordered by the court” from the rest of the sentence. This indicates that the two Statutory Interpretation 84 (2008); Singer & Singer, supra § 47.33, at 487-89. satisfaction of stop notice be mailed to subject of lawsuit within five days after Id. (quotation omitted); see L. Jellum, Mastering

construction that a modifying clause is confined to the last antecedent unless singula singulis, “is the general rule of statutory as well as grammatical a respondent with “two (2) copies of the exact same pleading.” We disagree. 144 N.H. 642, 652 (2000). The last antecedent rule, a subset of reddendo

See Mountain Valley Mall Assocs. v. Municipality of Conway,

to “such further notice as the court may order” is consistent with the last principal and surety with a copy of the petition to enforce the bond in addition Moreover, construing the statute to require a petitioner to provide the

comma and that there is a conjunction separating “such further notice as § 48-2A-9 (Michie 1995) (requiring that written notice of lawsuit to obtain

The petitioner argues that it is “absurd” to require a petitioner to provide

principal and surety” is separated from the phrase “file a petition” with a Further aiding our construction is the fact that the phrase “with copy to

477, 479 (1964). Yates, 152 N.H. 245, 255 (2005); see General Electric Co. v. Dole, 105 N.H. be “unconscionable” for them to retain. These are legal conclusions, however,

substantial benefit without compensating Petitioner for same,” which it would

damages for breach of contract.” 26 R. Lord, independent basis for a cause of action.” 42 C.J.S. unconscionable to retain, and unjust enrichment generally does not form an wrongfully secured a benefit or passively received one which it would be

to retain that benefit.” defendant received a benefit and it would be unconscionable for the defendant The petitioner’s petitions alleged only that the respondents “received a

133 (2001). 17 (2007); see Kowalski v. Cedars of Portsmouth Condo. Assoc., 146 N.H. 130,

construction that would permit recovery.” only unjust enrichment, but that the person sought to be charged had 145 N.H. 15 p. 8 8, 163 (2000). “The party seeking restitution must establish not

respondents. “A plaintiff is entitled to restitution for unjust enrichment if the

(1994). We first address the petitioner’s restitution claim. 5 (4th ed. 2003); see Kondrat v. Freedom School Board, 13 p. 8 8 N.H. 683, 686

respondents. Restitution and quantum meruit recovery based upon “unjust claim for restitution or for quantum meruit recovery against the moving allegations in the petitioner[’s] pleadings are reasonably susceptible of a The petitioner’s petitions failed to allege facts sufficient to state either a

improper to grant the motion to dismiss. McNamara, 157 N.H. at 73. and if the allegations constitute a basis for legal relief, we must hold that it was alleged sufficient facts to establish these claims against the moving threshold inquiry that tests the facts in the petition against the applicable law, petitioner contends that, contrary to the trial court’s decision, its petitions Matter of Kenick & Bailey, 156 N.H. 356, 35 p. 8 8 (2007). We then engage in a alternative claims for unjust enrichment/restitution and quantum meruit. The petitioner’s pleadings, however, that are merely conclusions of law. In the favorable to it. Id. We need not assume the truth of statements in the pleadings to be true and construe all reasonable inferences in the light most 73 (2008) (quotation and brackets omitted). We assume the petitioner’s

“In reviewing a motion to dismiss, our standard of review is whether the

The petitioner next asserts that the trial court erred by dismissing its

B. Unjust Enrichment/Restitution and Quantum Meruit Claims

court did not err by dismissing its petitions. See Fastrack I, 149 N.H. at 666. claim, the petitioner did not strictly comply with RSA 447:1 p. 8 8, and the trial them.

p. 9 General Insulation, complying with the court’s order of notice, served copies on

elevating form over substance, affirms. I cannot join such a decision.

principals and sureties on the project did not receive copies of the petition until the trial court still dismissed the petition as untimely merely because the of the project by the contracting party.” RSA 447:17. The public entity with 447:17 (Supp. 2009) and its petition to enforce pursuant to RSA 447:18 (2002),

sometime later was fatal to General Insulation’s petition. The plurality,

statement of claim is filed “within 90 days after the completion and acceptance General Insulation having timely filed its notice of claim pursuant to RSA

the principals and sureties did not obtain their copies of the petition until

The filing of a claim to enforce a bond involves two steps. First, a bonded project known as “Bedford Middle/High School” in Bedford. Despite

payment.” Insulation’s petition was filed within one year of its notice of claim, the fact that under circumstances that make it reasonable for the plaintiff to expect See Super. Ct. R. 124. The trial court ruled that, even though General

inequitably retained[,] [i]n

Insulation Company (General Insulation), for materials it supplied on the This case involves a petition to enforce a bond filed by the petitioner, General BROCK, C.J., retired, specially assigned under RSA 490:3, dissenting.

BROCK, C.J.