Aviles v. Eshelman Elec. Corp.

• Decision Date: 08 December 1977
• Docket Number: No. 33,33
• Parties: Joseph AVILES et ux. v. ESHELMAN ELECTRIC CORPORATION et al.
• Court: Maryland Court of Appeals

Page 529

281 Md. 529

379 A.2d 1227

Joseph AVILES et ux. v. ESHELMAN ELECTRIC CORPORATION et al.

No. 33.

Court of Appeals of Maryland.

Dec. 8, 1977.

Joseph C. V. Ferrusi, Oxon Hill, for appellants.

William N. Coggins, Silver Spring (Coggins & Harman, P.A., Silver Spring, on the brief, for Claire Cooke of Maryland, Inc.; Sebert H. Keifer, Oxon Hill, on the brief, for Capital Tile Co., Inc.; George E. Meng, Upper Marlboro, on the brief, for Ace Plumbing & Heating Co., Inc.; Robert W. King, Riverdale, on the brief, for Eshelman Elec. Corp.; and Gary Gasparovic, Bryans Road, on the brief, for Bryans Road Building & Supply Co., Inc.), for appellees.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

DIGGES, Judge.

This mechanics' lien suit, here on certiorari addressed to the Court of Special Appeals prior to that court considering the matter, involves issues which surfaced in the wake of our decision in Barry Properties v. Fick Bros., 277 Md. 15, 353 A.2d 222 (1976). In that case, decided on February 10, 1976, we held portions of the then-existing mechanics' lien statute to be unconstitutional. ¹ The General Assembly, being in regular session at the time, reacted to this ruling by enacting Chapter 349 of the Laws of 1976 which, effective May 4 of that year, ² did away with the mechanics' lien law then set out in the Maryland Code as sections 9-101 through 9-108, 9-111 and 9-113 of the Real Property Article (1974 & 1975 Cum.Supp.), and substituted in its place, without a saving provision, a fundamentally different lien statute. Since answers to the several issues framed by the appellants for this appeal become irrelevant in light of our conclusion that any entitlement which appellees may have possessed to establish and enforce a lien evaporated upon Chapter 349 becoming effective, we shall set out only such of the facts as are relevant in explaining why we think the appellee-claimants may not now maintain this action.

On January 2, 1975, appellants Joseph and Helen Aviles executed a contract with Olympic Engineering Corporation as general contractor which provided that Olympic would construct a dwelling for $80,449 on a lot owned by the appellants in Tantallon-on-the-Potomac, a subdivision located in Prince George's County. To assist them in financing this obligation Mr. and Mrs. Aviles arranged for a series of loans from Mrs. Helen Marcelonis, the mother of Mrs. Aviles; these loans were evidenced by several promissory notes totaling $43,312. Although Olympic made considerable progress in constructing the house and received from the owners payments totaling approximately $75,000 the builder experienced financial difficulties which initially delayed the work and eventually resulted in bankruptcy, causing abandonment of construction altogether. Upon learning of this development five of the subcontractors the appellees here reacted by first giving notice to the owners of their intention to file and then filing at varying times in 1975 lien claims under sections 9-103 and -106 of the Real Property Article then in force.

Appellee Eshelman Electric was the first of the subcontractors to institute foreclosure proceedings when it filed its bill in the Circuit Court for Prince George's County on October 17, 1975; appellee Capital Tile followed suit on January 14, 1976. On August 11, 1976, the trial court directed that the two pending foreclosure actions be consolidated and that the remaining three subcontractors which had filed liens, but which had not instituted foreclosure proceedings, be joined as party defendants in the case. Each of these latter three lien claimants (the remaining appellees here) responded with an answer and in addition filed a cross-complaint seeking to foreclose its lien. As it developed, the principal issue determined at the two-day trial on the merits which began on December 21, 1976, was whether the deeding, twelve days earlier, of the property from the appellants to Mrs. Marcelonis, in return for both a cancellation of debt in the amount of $48,936.01 and the execution of a purchase money deed of trust in the amount of $26,063.99, or a total purchase price of $75,000, required the court to deny foreclosure and dismiss the proceedings. The trial judge, after finding as a fact that the Aviles-to-Marcelonis conveyance "was not a transfer to a bona fide purchaser for value within the contemplation of Section 9-102(c) of The Real Property Article of the Maryland Code ((1974, 1977 Cum.Supp.))" as enacted the previous May, ³ established the claim of each of the five appellees as a lien on the house and lot, and appointed trustees to sell the property should the lien indebtedness not be satisfied within thirty days. This appeal followed.

We begin our explanation as to why, without reaching the issues decided by the trial court, we conclude its decree must be reversed by restating a principle of statutory construction now well-established in this State: Absent a contrary intent made manifest by the enacting authority, any change made by statute or court rule affecting a remedy only (and consequently not impinging on substantive rights) controls all court actions whether accrued, pending or future. ⁴ Janda v. General Motors, 237 Md. 161, 168, 205 A.2d 228, 232 (1964); Richardson v. Richardson, 217 Md. 316, 320, 142 A.2d 550, 553 (1958).

Although there is a contrary view expressed by the courts of some of our sister states, this Court more than three-quarters of a century ago in Wilson v. Simon, 91 Md. 1, 45 A. 1022 (1900), confirmed that in Maryland mechanics' lien statutes create no vested right, but are only an in rem remedy which can be changed or completely withdrawn at the whim of the legislature so as to control foreclosure actions, be they accrued, pending or future. Accord, Md. Casualty Co. v. Lacios, 121 Md. 686, 690, 89 A. 323, 324 (1913); Evans Co. v. Internat. Trust Co., 101 Md. 210, 218, 60 A. 667, 669-70 (1905). A mere reading of Wilson will demonstrate that factually and procedurally it is so akin to the case we now ponder that it is dispositive of this appeal. There, with a lien foreclosure suit pending but before a court hearing on the merits, the General Assembly enacted Chapter 502 of the Laws of 1898 which repealed the then-existing statute authorizing liens for materials furnished in construction of buildings in Baltimore City, and substituted for that law a statute which permitted a lien only for work performed on such structures. This Court was required to decide under the 1898 enactment

(m)ust it be construed so as to destroy the appellant's lien? and if so, is it invalid in respect to all liens existing and valid at the date of its passage, as being a law impairing the obligation of contracts, and within the inhibition of the Constitution of the United States, Article 1, sec. 10, subd. 1, which declares that "No State shall pass any law impairing the obligation of contracts." (91 Md. at 4-5, 45 A. at 1022.)

Our predecessors, relying on Weiskittle v. State, 58 Md. 155, 158 (1882), and Dashiell v. Baltimore, 45 Md. 615, 622 (1877), concluded the first question must be answered in the affirmative and opined:

In the Act of 1898, there are no saving clauses in favor of liens for materials, then existing, and all the provisions allowing such liens are entirely omitted. All such liens, therefore, are obliterated from the laws of the State as completely as if they had never existed, except for the purpose of suits "which were commenced, prosecuted and concluded while it was existing law." (91 Md. at 5, 45 A. at 1023.)

Judge Page in speaking for the Wilson Court acknowledged the second or constitutional question to be more difficult and the decisions throughout the country to be in substantial conflict. But after an examination of the rationale given for the conclusion each of these authorities reached, the Court stated that

We are of (the) opinion, therefore, on principle, that the effect of the repealing statute was not to impair any of the obligations of the (materialman's) contract, though it took from him the lien theretofore given him; and that the right to a mechanics' lien for materials furnished under the law of this State is not a vested right, but an extraordinary remedy only, which the State may discontinue at pleasure. (91 Md. at 9, 45 A. at 1024.)

This Court in Wilson further indicated that the following were factors which to a substantial degree dictated this result:

The contract under which the (materialman) parted with his property gave him (aside from the statute) no right to look to the buildings. The owner was not a party to it, and came under no personal obligation to pay him. His right to a lien on the buildings was not a right which sprang either from the obligation or from any of the principles or practices of the common law. It was an extraordinary remedy, the creature of "positive statutory enactment." When it had been discontinued by the passage of the Act of 1898 all the contractual and common-law rights of the parties remained. The (materialman's) right to bring his action, secure judgment and execution and make sale of (the general contractor's) property remained unimpaired. (91 Md. at 7, 45 A. at 1023.)

We now affirm both the...