Alex Builders & Sons, Inc. v. Danley

Citation7 A.3d 1219,161 N.H. 19
Decision Date19 October 2010
Docket NumberNo. 2009-698.,2009-698.
PartiesALEX BUILDERS & SONS, INC. v. Michael DANLEY and another.
CourtSupreme Court of New Hampshire

Hoefle, Phoenix, Gormley & Roberts, P.A., of Portsmouth (Lawrence B. Gormley on the brief and orally), for the plaintiff.

Coughlin, Rainboth, Murphy & Lown, P.A., of Portsmouth (Kenneth D. Murphy on the brief and orally), for the defendants.

HICKS, J.

The plaintiff, Alex Builders & Sons, Inc., appeals an order of the Superior Court ( Lewis, J.) discharging its mechanic's lien against property of the defendants, Michael and Ann Marie Danley. We reverse and remand.

The record supports the following facts. On March 26, 2009, the plaintiff sued the defendants under theories of breach ofcontract, quantum meruit and unjust enrichment, alleging that it had supplied materials and performed services in constructing a home at 26 Odiorne Point, Portsmouth. The writ further alleged that despite their promise to pay for those materials and services, the plaintiffs had failed to pay an outstanding balance of $45,391.75. Also on March 26, 2009, the plaintiff petitioned the superior court for an ex parte attachment, "in accordance with RSA 447 and 511-A:8," on property of the defendants described as: "Any and all Real estate located at, but not limited, to 26 Odiorne Point Road, Portsmouth NH 03801, aka Tucker's Cove, Tax Map 224, Lot 10-002." The pleading was entitled: "PETITION FOR EX PARTE MECHANICS LIEN." (Bolding and underlining omitted.)

The plaintiff's attorney also completed a writ of attachment and trustee process, sometimes referred to as the "blue form," which commanded the sheriff to attach the goods or estate of the defendants up to the value of $50,000.The return of service on the writ of attachment indicates that the person making the attachment had attached the defendants' lands and tenements in Rockingham County "to the exten[t] ordered on the reverse side of this writ" by leaving a copy of the writ and return at the registry of deeds.

The defendants objected to the ex parte attachment, arguing, in part, that the writ of attachment was defective because it failed to specify its purpose to perfect a mechanic's lien and failed to accurately describe the property to be attached. The plaintiff moved to supplement the record, alleging that its "writ, totaling the five pages on record at the Registry of Deeds, includes the Petition, which repeatedly, in the heading, in Paragraph 'B' and on the second page of the Petition, asserts the appropriate notice language."

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

I. Did the trial court err in ordering dissolution of the mechanic's lien as a result of its finding of a defective writ and noncompliance with the statutory requirement ?
II. Did the trial court err in failing to distinguish the authority cited by [the plaintiff] in Manchester Federal Sav. and Loan Ass'n v. Letendre, 103 N.H. 64 (1960), from Gothic Metal Lathing v. FDIC, 135 N.H. 262 [603 A.2d 926 (1992) ]?
III. Did the trial court err in finding that the so-called "blue form" is the sole appropriate location on the writ for the required recitations to perfect a mechanic's lien, contrary to the holdings in Manchester Federal Sav. and Loan Ass'n and Holden Engineering & Surveying, Inc. v. Law Offices of Raymond P. D'Amante, P.A., 142 N.H. 213 (1997) that the filing is to be considered as an integrated [w]hole[?]

Answering these questions requires us to interpret the statutory requirements for securing a mechanic's lien, see RSA 447:10 (2002), which presents a question of law that we review de novo. See Zorn v. Demetri, 158 N.H. 437, 438, 969 A.2d 464 (2009).

Under RSA 447:2, a person who performs labor or furnishes material, "to the amount of $15 or more," for building or repairing a house, has "a lien onany materialso furnished and on said structure, and on any right of the owner to the lot of land on which it stands." RSA 447:2 (2002). The lien continues for 120 days after the services are provided or the materials are furnished, RSA 447:9 (2002), and may be secured in accordance with RSA 447:10, which provides: "Any such lien may be secured by attachment of the property upon which it exists at any time while the lien continues, the writ and return thereon distinctly expressing that purpose." RSA 447:10.

The issue before us is the sufficiency of the writ.

Our cases set forth a three-part test to determine the sufficiency of a writ of attachment for purposes of RSA 447:10. It must state the purpose for which the attachment is brought, describe the property to be attached with reasonable accuracy and specificity, and direct the officer to attach that specific property.

Gothic Metal Lathing, 135 N.H. at 263, 603 A.2d 926. We have long required strict compliance with the test. Id. Insistence upon strict compliance is warranted because "[t]he remedy of attachment is in derogation of the common law," Maine Nat'l Bank v. Baker, 116 N.H. 185, 186, 355 A.2d 429 (1976) (discussing RSA chapter 511-A, and, in particular, RSA 511-A:8), and the statute affords an enhanced right of recovery in the form of priority over certain other liens, see RSA 447:12-a (2002) (priority over construction mortgages). Accordingly, "[f]ailure to comply with the specific statutory provisions of perfecting a mechanics lien is usually fatal." Rodd v. Titus Construction Co., 107 N.H. 264, 266, 220 A.2d 768 (1966); cf. Gen. Insulation Co. v. Eckman Constr., 159 N.H. 601, 608, 992 A.2d 613 (2010) (noting that failure to comply with RSA chapter 447's performance bond provisions is usually fatal).

The plaintiff argues that the trial court erred in failing to read the writ of attachment and petition for ex parte mechanic's lien together. It contends that Manchester Federal Savings & Loan Ass'n v. Letendre, 103 N.H. 64, 164 A.2d 568 (1960), and Holden Engineering and Surveying v. Law Offices of Raymond P. D'Amante, 142 N.H. 213, 698 A.2d 3 (1997), support the position that "the documents that make up a Writ of Attachment, the Writ itself and the accompanying declaration or other supporting documents, should be read together to determine whether the purpose of the Writ is to perfect a mechanic's lien." The defendants, on the other hand, assert that the "statute and case law make clear that it is the Writ of Attachment itself that must be reviewed to determine compliance." In addition, they claim that "[t]he words the 'writ and return' clearly refer to the blue Writ form not the pleading filed with the Court to obtain authority to record the attachment."

Our cases have not construed the statute as strictly as the defendants suggest. Although we demand strict compliance with the statute's requirements,"strict compliance with a statute does not equate to strict construction of its terms." Impact Food Sales v. Evans, 160 N.H. 386, 399, 999 A.2d 198 (2010) (Hicks, J., dissenting). This is especially true where "[t]he purpose of the mechanics' lien law is remedial, to guarantee effective security to those who furnish labor or materials which are used to enhance the value of the property of others." Innie v. W & R, Inc., 116 N.H. 315, 317, 359 A.2d 616 (1976). The general rule is to construe remedial statutes liberally in favor of the person the statute is intended to benefit. See, e.g., Stankiewicz v. City of Manchester, 156 N.H. 587, 594, 938 A.2d 873 (2007).

In Manchester Savings, the sufficiency of the writ of attachment was challengedon the ground that the command to the sheriff was not in the writ, as required by RSA 447:10, because it appeared on a separate sheet of paper stapled to the second page of the specifications. Manchester Sav., 103 N.H. at 68, 164 A.2d 568. In rejecting that challenge, we noted that the statute contains no "express direction as to the place where the command to attach and the statement of the purpose thereof should be inserted." Id. In addition, we noted that the entire command to the sheriff in that case was too long to fit in the usual space reserved for it in the writ. Id. We found the writ sufficient, concluding:

[W]hile in a technical sense we speak of a writ and a declaration, it cannot be said as a practical matter that the two are necessarily separate and distinct except as to content.... Each is an integral and complementary portion of a whole, and to cause this whole to serve its intended purpose they must be considered together. In short, we believe the instrument here, including the writ proper, the declaration and the lien command, must be regarded as a whole and that RSA 447:10 so intended.

Id. at 69, 164 A.2d 568.

Similarly, in Holden Engineering, we rejected an overly technical reading of RSA 447:10 that would have required the purpose to secure a mechanic's lien to be "explicitly stated twice, once in the writ and again in the return of service." Holden Eng'g, 142 N.H. at 215, 698 A.2d 3. We held that "the phrase 'writ and return' contained in RSA 447:10 refers to the instrument as an integrated whole, and that so long as the writ and return taken together distinctly express that the attachment is made to secure a mechanic's lien, the purpose of the attachment is sufficiently stated." Id. at 216, 698 A.2d 3.

We conclude that on the facts of this case, the "instrument," Manchester Sav., 103 N.H. at 69, 164 A.2d 568; Holden Eng'g, 142 N.H. at 216, 698 A.2d 3, to be assessed for compliance with the statute consists of the writ of attachmentand the petition for ex parte mechanic's lien, which was recorded with the writ and intended to be taken together with it, as an integrated whole, for the purpose of securing the lien.

We now address whether the writ and petition in this case meet...

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6 cases
  • Audette v. Cummings, 2012–496
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    • Supreme Court of New Hampshire
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    ...beyond the 120–day period by attachment of the subject property during that period. RSA 447:10 (2002); see Alex Builders & Sons v. Danley, 161 N.H. 19, 22–23, 7 A.3d 1219 (2010). The legislative purpose of this statutory scheme is "to provide for special treatment for mechanic's liens in de......
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