Holden Eng'g & Surveying, Inc. v. Law Offices of Raymond P. D'Amante, P.A.

• Decision Date: 23 July 1997
• Docket Number: No. 96–134.,96–134.
• Citation: 142 N.H. 213,698 A.2d 3
• Parties: HOLDEN ENGINEERING & SURVEYING, INC. v. LAW OFFICES OF RAYMOND P. D'AMANTE, P.A. and another.
• Court: New Hampshire Supreme Court

142 N.H. 213

698 A.2d 3

HOLDEN ENGINEERING & SURVEYING, INC.

v.LAW OFFICES OF RAYMOND P. D'AMANTE, P.A. and another.

No. 96–134.

Supreme Court of New Hampshire.

July 23, 1997.

McDowell & Mekeel, P.A., Manchester (Edward C. Dial, Jr., on the brief and orally), for plaintiff.

Dean, Rice & Howard, P.A., Manchester (Emily Gray Rice, on the brief and orally), for defendant Law Offices of Raymond P. D'Amante, P.A.

Nelson, Kinder, Mosseau & Gordon, P.C., Manchester (Robert M. Daniszewski, on the brief and orally), for defendant Kathleen A. McDonald.

JOHNSON, Justice.

The plaintiff, Holden Engineering & Surveying, Inc., appeals an order of the Superior Court (Barry, J.) granting the defendants' motion for partial summary judgment and denying the plaintiff's cross-motion for partial summary judgment. Although their motions purported to seek only partial summary judgment, all parties agree that the trial court's order on the motions was entirely dispositive of the plaintiff's case and was therefore a decision on the merits that may be appealed to this court. We affirm.

This is a legal malpractice action arising out of the filing of a writ of attachment to secure a mechanic's lien. The plaintiff alleges, and the trial court accepted for purposes of its order, the following facts. The defendants, Law Offices of Raymond P. D'Amante, P.A. and Kathleen A. McDonald, represented the plaintiff in an action against Thomas Monahan to recover payment for engineering and surveying work performed by the plaintiff on a parcel of land in Hooksett. In the course of this representation, the defendants obtained court approval for an ex parte attachment to secure plaintiff's mechanic's lien on Monahan's Hooksett property. On October 17, 1989, the defendants filed a writ of attachment at the Merrimack County Registry of Deeds to perfect the lien.

Following a foreclosure sale of the Hooksett property by Monahan's mortgagee, the plaintiff brought this malpractice suit against its former attorneys, alleging that the return of service in the writ of attachment was defective because it failed to state that the attachment was filed to perfect a mechanic's lien. Each party moved for partial summary judgment on the issue of whether the attachment met the requirements set forth in RSA 447:10 (1991) for securing a mechanic's lien. The trial court ruled that the return of service complied with RSA 447:10. The sole issue before us is whether that ruling was erroneous.

RSA 447:10 prescribes the method for securing any of the statutory liens that arise automatically under the provisions of RSA 447:1 –:5 and:7 (1991). See Thayer v. Padelford, 69 N.H. 301, 302, 41 A. 447, 447 (1897). It provides that "[a]ny 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 writ in this case commanded the sheriff to attach Monahan's goods or estate, to the value of $280,000,

[s]pecifically limited to real estate of the Defendant on Route 101–B in Hooksett, Merrimack County, State of New Hampshire and conveyed by deeds recorded in the Merrimack County Registry of Deeds at Book 1604, Page 753; Book 1604, Page 752; and Book 1604, Page 749 to secure a mechanic's lien.

For the return of service, defendant McDonald used the return of service form preprinted on the back of the writ, filling in the date, county, Monahan's name, and time of filing with the register of deeds. As completed, the return stated in relevant part:

I attached all the lands and tenements in the County of Merrimack of the within named defendant Thomas F. Monahan to the extent ordered on the reverse side of this writ, by leaving at the office of the Register of Deeds of said

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