843 A.2d 946 (N.H. 2004), 2003-173, Daniel v. Hawkeye Funding, Ltd. Partnership
|Citation:||843 A.2d 946, 150 N.H. 581|
|Opinion Judge:||NADEAU, J.|
|Party Name:||Daniel v. HAWKEYE FUNDING, LIMITED PARTNERSHIP & a.|
|Attorney:||Cook, Little, Rosenblatt & Manson, P.L.L.C., of Manchester (Arnold Rosenblatt and Michael S. Owen on the brief, and Mr. Owen orally), for the plaintiff., Gallagher, Callahan & Gartrell, P.A., of Concord (Michael D. Ramsdell on the brief and orally), for the defendants., MEMORANDUM OPINION Cook, ...|
|Case Date:||February 26, 2004|
|Court:||Supreme Court of New Hampshire|
Argued: Jan. 7, 2004.
Rehearing Denied March 31, 2004.
Cook, Little, Rosenblatt & Manson, P.L.L.C., of Manchester (Arnold Rosenblatt and Michael S. Owen on the brief, and Mr. Owen orally), for the plaintiff.
Gallagher, Callahan & Gartrell, P.A., of Concord (Michael D. Ramsdell on the brief and orally), for the defendants.
This case comes before us on interlocutory appeal from a ruling of the Superior Court (McHugh, J.), see Sup.Ct. R. 8, holding that the plaintiff, Duke/Fluor Daniel, is not permitted to have a prejudgment attachment in this action and ordering the plaintiff to remove the attachment it had obtained. We affirm and remand.
The following facts appear in the trial court's order. The plaintiff sued the defendants, Hawkeye Funding, Limited Partnership (Hawkeye) and Newington Energy, LLC, alleging that it built a power plant for the defendants and is owed money under the parties' contract. The plaintiff also filed a petition to attach the power plant pursuant to the mechanic's [150 N.H. 582] lien statute, RSA chapter 447. The attachment was initially granted prior to the defendants having an opportunity to object.
The defendants moved to dismiss the attachment, arguing that the plaintiff had waived its right to a mechanic's lien in the parties' contract. The trial court agreed, ruling that according to the unambiguous language of section 3.15 of the contract, the plaintiff was prohibited from obtaining a prejudgment lien on the power plant.
In this interlocutory appeal, the trial court submitted eight questions of law. The first seven, however, all deal with whether the court correctly interpreted section 3.15 of the parties' contract. We will therefore directly address only that issue. The final question presented is whether the court erred in concluding that the power plant would retain sufficient value at the end of the lawsuit to guarantee payment of a judgment.
The contract provision primarily at issue provides, in pertinent part:
3.15. No Liens.
So long as no undisputed amounts due hereunder are outstanding, in which such case only to the extent of such outstanding undisputed amount...
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