Bellegarde Custom Kitchens v. Leavitt

Decision Date25 October 1972
Citation295 A.2d 909
CourtMaine Supreme Court
PartiesBELLEGARDE CUSTOM KITCHENS v. Arnold LEAVITT, sometimes d/b/a Leavitt Lumber Co., et al.

Clifford & Clifford, by Jere R. Clifford, Lewiston, for plaintiff.

Linnell, Choate & Webber, by G. Curtis Webber, John R. Linnell, Auburn, Harris M. Isaacson, Lewiston, Benjamin Butler, Farmington, for defendants.



The Presiding Justice dismissed the complaint of Bellegarde Custom Kitchens which sought to preserve and enforce a materialman's lien for materials used in the construction and alteration of the home of the Defendants Jacques under a contract with the builder, the Defendant Arnold Leavitt. The Plaintiff has appealed. Of the Defendants, only the Jacques are involved in the appeal.

The Plaintiff's action was filed in the office of the Clerk of Courts 91 days after the last of the materials were furnished. The Justice concluded that Plaintiff's action was filed a day too late to give the Court jurisdiction. 10 M.R.S.A. § 3255-the statute which creates the action to preserve and enforce the lien and upon which the Plaintiff relies-reads:

'The liens mentioned in sections 3251 to 3254 may be preserved and enforced by action against the debtor and owner of the property affected and all other parties interested therein, filed with the clerk of courts in the county where the house, building or appurtenances, wharf, pier or building thereon, on which a lien is claimed, is situated, within 90 days after the last of the labor or services are performed or labor, materials or services are so furnished, and not afterwards, except as provided in section 3256.' 1 (Emphasis added).

The 90th day following the furnishing of the materials fell on Sunday. The Plaintiff-Appellant urges us that the Maine Rules of Civil Procedure now control the determination of the last day in which the action created by section 3255 may be filed. M.R.C.P., Rule 6(a) provides:

'In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a holiday. . . .' (Emphasis added).

The sole issue persented is whether Rule 6(a) is applicable to the computation of time under section 3255. If it is, the Plaintiff's filing of its action on Monday, although it was on the 91st day, was timely. The Presiding Justice considered that it was not timely.

We agree with the Justice.

It is well settled that-apart from the effect of Rule 6(a), if any-the statutory limitation of time in which the action may be filed permits no exception (except the express exception as to death, bankruptcy or insolvency of the owner found in section 3256).

In early 1903 a materialman's lien could be enforced in one of two methods-by a bill in equity filed with the clerk of courts within 90 days of the last furnishing of materials 'and not otherwise' (P.L.1895, Chap. 30, § 2) or by an action at law commenced by attachment made within 90 days of the last furnishing of materials. P.L.1897, Chap. 232, § 1.

The Legislature had omitted adding as to the action at law the emphasizing words 'and not otherwise' or other similar words.

Nevertheless, in Oakland Manufacturing Company v. Lemieux, 98 Me. 488, 57 A. 795 (1904) this Court construed chapter 232, section 1 and held that the statutory 90 day period during which such an attachment could be made did not extend beyond the 90th day although that day fell on a Sunday. The Court said:

'. . . It is fair to presume that if the Legislature had intended such a result (that is, the extension of the statutory period), it would have expressed that intention in unmistakable terms. . . .'

The Legislature, presumably aware of the Court's conclusion, did not see fit to add language which would have extended the 90 day period if the last day should fall on a Sunday. In fact, in the Revised Statutes of 1903, the Legislature had already acted (although not in time to have effect upon the action at law in Oakland which had already been commenced) to remove any possible uncertainty as to its intention that the right to enforce the lien by actions in either equity or law must be commenced within 90 calendar days. In R.S.1903, Chap. 93, section 33 the language as to the equitable action was changed from 'within 90 days . . . and not otherwise' to read 'within 90 days . . . and not afterwards'. (Emphasis added). In section 40 the Legislature added the same emphatic language requiring actions at law, also, to be commenced 'within 90 days . . . and not afterwards.'

It appears to us that the Legislature's decision in 1903 to add the words of emphasis which it had omitted in 1897 together with its failure to act to liberalize its strict limitation following the decision in Oakland leaves no doubt as to its then determination that the right to enforce the materialman's lien should not survive the end of the 90th calendar day.

There the matter stood until the adoption of Rule 6(a) in 1959. 2

The Maine Rules of Civil Procedure were promulgated by this Court in 1959 on the express authorization of the Legislature.

'The Supreme Judicial Court shall have the power to prescribe, by general rules, for the District and Superior Courts of Maine, the forms of process, writs, pleadings and motions and the practice and procedure in civil actions at law. Said rules shall neither abridge, enlarge nor modify the substantive rights of any litigant. . . . After the effective date of said rules as promulgated or amended, all laws in conflict therewith shall be of no further force or effect.' (Emphasis added). 4 M.R.S.A. § 8.

As the Enabling Act gave the Court no authority to promulgate rules which would affect the substantive rights of parties, the 'applicable statute(s)' which Rule 6(a) would control must be those concerned with procedural matters.

The dividing line between substance and procedure is not always easily discernible.

A procedural statute has been defined as one which neither enlarges nor impairs substantive rights but rather relates to the means and procedures for enforcing these rights. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Romano v. B. B. Greenberg Co., 273 A.2d 315 (R.I.1971). See also 2 Moore's Federal Practice, § 1.04.

It seems to us that the authors of Maine Civil Practice, in discussing the application of the Rules to procedural as distinguished from substantive matters, used a correctly reasoned example, saying:

'. . . (T)he question whether an action is barred by a statute of limitations is a matter of substance; but the question as to when an action is considered to have been commenced so as to toll the statute of limitations is presumably procedural.' 3 Field, McKusick and Wroth, Maine Civil Practice, Vol. 1, § 1.2.

However, there is a significant distinction between a statute of limitations and a statute such as the present one which creates a special right of action for the benefit of a line claimant. The former is available as an affirmative defense, is not jurisdictional and can be waived. Warren v. Walker, 23 Me. 453 (1844). The statute presently under consideration is one which creates a special right which was unknown to the common law. Andrew v. Bishop, 132 Me. 447, 172 A. 752 (1934); Otis Elevator Company v. Finks Clothing Company, 131 Me. 95, 159 A. 563 (1932). The Legislature saw fit to provide that this right should exist only during a limited period and the Court is without jurisdiction to entertain such an action as this when the period of its availability has expired. Pray v. Millett, 122 Me. 40, 118 A. 721 (1922); Andrew v. Bishop, supra.

We have no doubt but that a statute which creates a right of action for a materialman to take the property of the owner of real estate in satisfaction of his claim is substantive in nature. The Legislature determined that this new right of enforcement would be available only to those persons who exercised the new right by filing their action with the clerk of courts within 90 days of the furnishing of the materials (or by attachment made within the same period). Insofar as it concerns the period of time during which the action is available, the statute deals with substantive rights.

We do not consider that the adoption of the Rule can, in itself, enlarge the availability of a special remedy of limited existence. Both the right of the materialman to take the noncontracting owner's property and the time within this the Legislature has made available the statutory remedy to accomplish this are substantive matters.

However, the Plaintiff urges us that, even if this is true, when an action is properly filed is a purely procedural question.

This view is illustrated by the decision in Bolduc v. United States, 189 F.Supp. 640 (D.C.Me.1960) where a complaint brought under the Federal Tort Claims Act was received by the Clerk by mail during the limited statutory period for filing. The Clerk did not file the complaint until 10 days later when he had received the required statutory $15.00 filing fee, by which time the two year period for commencing such an action had expired. Judge Gignoux, relying on Parissi v. Telechron, Inc., 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955), held that the action was commenced when the complaint was received in the Clerk's office.

The present case presents no issue as to when the action was commenced.

The complaint bore the date of November 9, the 91st calendar day. It was filed in the Clerk's office on November 9. There is no pretense that the complaint was commenced...

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16 cases
  • Pineland Lumber Co. v. Robinson
    • United States
    • Maine Supreme Court
    • January 25, 1978
    ...without jurisdiction to entertain actions for its enforcement when the period of its availability has expired. Bellegarde Custom Kitchens v. Leavitt, Me., 295 A.2d 909 (1972); Pendleton v. Sard, Me., 297 A.2d 889 (1972); Morin v. Maxim, 146 Me. 421, 82 A.2d 789 Notwithstanding the rule of s......
  • Pendleton v. Sard
    • United States
    • Maine Supreme Court
    • December 8, 1972
    ...that any lienable item was furnished on or after October 7, 1969 as required. In the very recent case of Bellegarde Custom Kitchens v. Arnold Leavitt et al. (Me.-1972) 295 A.2d 909, this Court held that the statutory requirement in Sec. 3255 is jurisdictional and, being substantive rather t......
  • Maguire Const., Inc. v. Forster
    • United States
    • Maine Supreme Court
    • September 12, 2006
    ...Pineland Lumber Co. v. Robinson, 382 A.2d 33, 36 (Me.1978); Pendleton v. Sard, 297 A.2d 889, 896 (Me. 1972); Bellegarde Custom Kitchens v. Leavitt, 295 A.2d 909, 910-14 (Me.1972); see also John W. Goodwin, Inc. v. Fox, 642 A.2d 1339, 1341-42 (Me.1994) (Clifford, J., dissenting). Maguire com......
  • Cather v. Kelso
    • United States
    • Idaho Supreme Court
    • May 24, 1982 business day, April 14, 1980, and the filing was timely. The district court also relied on the Maine case of Bellegarde Custom Kitchens v. Leavitt, 295 A.2d 909 (Me.1972). That case, while containing facts remarkably similar to the case at bar represents the minority rule and is reject......
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