Biette v. Scott Dugas Trucking and Excavating, Inc.

• Decision Date: 15 May 1996
• Docket Number: No. 7665,Docket No. C,7665
• Parties: Robert N. BIETTE, et al. v. SCOTT DUGAS TRUCKING AND EXCAVATING, INC. et al. DecisionLawum 95 701.
• Court: Maine Supreme Court

Page 490

676 A.2d 490

Robert N. BIETTE, et al. v. SCOTT DUGAS TRUCKING AND EXCAVATING, INC. et al.

Decision No. 7665.

Law Docket No. Cum 95 701.

Supreme Judicial Court of Maine.

Argued April 4, 1996.

Decided May 15, 1996.

John F. Shepard, Jr. (orally), Shepard & Shepard, P.A., Freeport, for Appellants.

Mary Lou Ciolfi (orally), Voorhees & Ciolfi, Brunswick, Stanley Greenberg (orally), Portland, Robert Edmond Mittel (orally), Mittel, Asen, Eggert, Hunter & Cary, Portland, Susan Oram, Isaacson, Raymond & Bonneau, Lewiston, for Appellees.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, and DANA, JJ.

DANA, Justice.

Scott Dugas Trucking and Excavating, Inc. appeals from a summary judgment entered in the Superior Court (Cumberland County, Saufley, J.) ordering the distribution of escrow funds deposited in an interpleader action brought by Robert and Mary Biette. Dugas also appeals from the court's denial of its motion for discovery and the dismissal of its counterclaim. Dugas's numerous contentions are uniformly without merit. We affirm the judgment and award sanctions for a frivolous appeal pursuant to M.R.Civ.P. 76(f).

In September 1992 the Biettes entered into a construction contract for a house with Homeplace Building and Remodeling, Inc., a general contractor. In July 1993 the Biettes were served with a notice of trustee process by Dugas. ¹ In August the Biettes received a final invoice from Homeplace in the total amount of $45,900. All but $2,979.47 of that amount was earmarked for payment to various subcontractors who had provided labor and materials for the construction of the Biettes' residence. But for several punch list items that remained to be completed by Homeplace the contract was completed. Since August 1993 Homeplace and six subcontractors ² have filed mechanics' liens and commenced actions to enforce and preserve those liens.

The Biettes filed a motion to dismiss Dugas's trustee process, which the court (Lipez, J.) granted. We affirmed on the alternative ground of untimely service of trustee process. See Scott Dugas Trucking & Excavating, Inc. v. Homeplace Bldg. & Remodeling, Inc., 651 A.2d 327 (Me.1994). In April 1994 Dugas obtained a judgment that Homeplace was liable to it in the amount of $54,237.02 plus interest, costs, and attorney fees, on an execution previously issued against Homeplace's predecessor corporation. Dugas secured this judgment by filing a writ of execution in the Cumberland County Registry of Deeds and the Secretary of State's Office.

The Biettes filed this interpleader action naming Homeplace, Dugas, and the subcontractors as defendants. The Biettes deposited $41,952.08 in an escrow account and sought a decision regarding the conflicting claims of the defendants to the money. The mechanics' lien actions were stayed until the conclusion of this interpleader action.

Dugas filed a motion to dismiss and in a "counterclaim against all other parties" sought the escrow money plus an additional sum and tools and equipment allegedly held by the Biettes. The court denied Dugas's motion to dismiss. One of the subcontractors, Redlon & Johnson, moved to dismiss Dugas's counterclaim for failure to state a claim, which the court granted. Dugas also filed a motion to allow discovery which the court denied without prejudice. Redlon filed a motion for a summary judgment seeking a division of the escrow funds in accordance with a proposed order accompanying its motion. Other subcontractors joined Redlon's motion and the Biettes filed a motion in partial support. The Biettes and Homeplace submitted a stipulation of facts regarding the construction contract and the amounts owed each subcontractor.

Following a hearing on the motions for a summary judgment, the court ordered $39,403.02 of the escrow funds to be paid to the subcontractors who appeared. The Biettes were ordered to pay Dugas the amount of $1,801.65 (the amount that would have been owed to two other subcontractors who did not appear in the action). The court ordered the Biettes to retain $1,541.34, the balance of the escrow account. The court also denied Dugas's motion for discovery. Dugas appeals.

In reviewing an appeal from the grant of a summary judgment we view the evidence in a light most favorable to the party against whom the judgment was entered and review the trial court's decision for errors of law. Gonzales v. Commissioner, Dep't of Pub. Safety, 665 A.2d 681, 682 (Me.1995). When there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law we will affirm a summary judgment. Id. at 682-83.

I.

Pursuant to M.R.Civ.P. 73(b), Dugas specified in its notice of appeal that it was appealing, inter alia, from the court's refusal to permit discovery. Dugas, however, did not adequately address this matter in its brief. Dugas merely makes reference in its statement of facts that it had no opportunity to conduct any discovery. Because issues that are not briefed are not considered on appeal, Dugas's reliance on the discovery issue is precluded. See Scott v. Lipman & Katz, P.A., 648 A.2d 969, 974 (Me.1994) (issues not briefed and raised at oral argument are not considered on appeal).

II.

Dugas contends that the stipulation of facts between Homeplace and the Biettes was both a fraud on the court and part of a "conspiracy" to keep the Biettes' money away from it. The court concluded that there were no facts in dispute between Homeplace and the Biettes or as to the amounts owed the subcontractors. Dugas produced no evidence to support its fraud allegations. Unless there is sufficient evidence in favor of the nonmoving party for a jury to return a verdict for that party there is no issue for trial. Bouchard v. American Orthodontics, 661 A.2d 1143, 1144-45 (Me.1995). " 'If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.' " Id. (citation omitted). Also, M.R.Civ.P. 7(d)(2) requires a party opposing a motion for a summary judgment to file "a separate, short and concise statement of the material facts, supported by appropriate record references, as to which it is contended that there exists a genuine issue to be tried." If a party fails to file a counter statement of facts in accordance with this rule, all facts alleged in the moving party's statement of undisputed facts are deemed admitted. Guiggey v. Bombardier, 615 A.2d 1169, 1171 (Me.1992). Although Dugas filed a statement of material facts it did not provide record references as required by Rule 7(d)(2). Accordingly, the contents of Dugas's statement are unsupported speculation that does not generate a genuine issue of material fact. See Kitchen v. City of Calais, 666 A.2d 77, 78-79 (Me.1995). The court correctly determined that this interpleader action could be resolved by applying the law to the undisputed facts.

III.

Dugas contends that because it has a lien on Homeplace's personal property, including the Biette account receivable held by Homeplace, it has a lien on the Biettes' money. The court properly concluded that Dugas has a judgment lien against the real and personal property of Homeplace but no independent claim against the real or personal property of the Biettes. See 14 M.R.S.A. § 4651-A (Supp.1995). ³ The court correctly determined that Dugas has a lien against the Biette account receivable held by Homeplace, which, if collected by Homeplace would be payable to Dugas. A judgment lien creditor stands in the shoes of his judgment debtor so as to reach all assets that could be reached by the debtor. 46 Am.Jur.2d Judgments § 370 (1994). The lien cannot attach, however, to any greater interest than the debtor has. Id. § 380. Thus as a judgment creditor Dugas's claim to the Biettes' money is derivative of Homeplace's entitlement to it. As discussed below the court correctly applied the mechanics' lien laws to the undisputed facts and properly determined that Homeplace, and therefore Dugas, is not entitled to the escrow money until the subcontractor liens are satisfied.

IV.

Dugas contends that two of the subcontractors named as defendants in the interpleader action, Security Engineering and Nesco, do not have mechanics' liens because the court in which they commenced their mechanics' lien actions lacked subject matter jurisdiction. This argument is based on the fact that Security and Nesco filed their respective actions in the Portland District Court even though the Biettes' house is in Brunswick. "[L]iens ... may be preserved and enforced by action ... filed with the Superior Court or District Court clerk in the county or division where the house ... on which a lien is claimed, is situated...." 10 M.R.S.A. § 3255(1) (Supp.1995). Dugas incorrectly characterizes its argument as one involving subject matter jurisdiction rather than venue. Dugas, however, waived the issue of improper venue because it did not raise it either in a responsive pleading or by a motion in the Superior Court. See M.R.Civ.P. 12(h).

V.

Dugas contends that the Biettes' affidavit regarding their knowledge of the subcontractors' liens was improperly based on their "information and belief" rather than on "personal knowledge" as required by M.R.Civ.P. 56(e). Because Dugas did not object in the Superior Court to the alleged improper affidavit it has failed to preserve this issue for appellate review. Estate of Althenn v. Althenn, 609 A.2d 711, 713 n. 3 (Me.1992).

VI.

Dugas contends that the lien claims are invalid because the Biettes had not consented to being responsible for paying the subcontractors directly. Dugas misperceives the nature of the "consent" necessary for the application of the Mechanics' Lien Statute. In order for a mechanic's lien to have something to attach to, a laborer or a materialman must either have a contract with or the consent of the owner of the land. 10 M.R.S.A. § 3251 (Supp.1995). ⁴ In this case it is undisputed that Homeplace had the Biettes' consent...