Chagnon Lumber Co., Inc. v. Stone Mill Const. Corp., 82-527

• Citation: 474 A.2d 588,124 N.H. 820
• Decision Date: 19 April 1984
• Docket Number: No. 82-527,82-527
• Parties: CHAGNON LUMBER CO., INC. v. STONE MILL CONSTRUCTION CORP. and John W. and Ann M. Breiten.
• Court: New Hampshire Supreme Court

Page 588

474 A.2d 588

124 N.H. 820

CHAGNON LUMBER CO., INC. v. STONE MILL CONSTRUCTION CORP. and John W. and Ann M. Breiten.

No. 82-527.

Supreme Court of New Hampshire.

April 19, 1984.

Prunier, Mazerolle & Frasca P.A., Nashua (Gerald R. Prunier, Nashua, on brief and orally), for plaintiff.

Hamblett & Kerrigan P.A., Nashua (John V. Dwyer, Jr., Nashua, on brief and orally), for defendant.

SOUTER, Justice.

In 1977, the defendant corporation owned land on which its principals intended to build houses. The plaintiff agreed to sell building materials to the corporation on credit, and the corporation built a house with those materials. The defendants John and Ann Breiten agreed to purchase the house and its lot. At the closing, an officer of the corporation gave the Breitens an affidavit that the corporation had paid for all materials used in the house. The Breitens paid the purchase price and took title. After the closing, but within ninety days of the last delivery of materials for use on the house, the plaintiff petitioned the superior court ex parte for permission to attach the property to secure a lien under RSA 447:2 for money owed for materials. The Superior Court (Contas, J.) granted the petition, and the plaintiff attached the Breitens' property.

When notified, the Breitens objected. After an evidentiary hearing, the Superior Court (Pappagianis, J.) found, inter alia, that at the closing the Breitens had no knowledge that any bill for supplies had not been paid, had no actual or constructive knowledge of any lien for materials, and were bona fide purchasers for value. The court nonetheless overruled their objection. The Breitens have appealed on their exception to this order. We reverse.

In the superior court the Breitens objected to the attachment on several grounds. Among them was the claim that the property was immune from attachment to secure the materialman's lien because the Breitens were bona fide purchasers of it for value without notice of the lien. While they thus raised the issue of the bona fide purchaser's rights, it is not apparent that they argued as they did before us, that RSA 511-A:5 supports their position on this issue.

While issues on appeal are limited to issues raised in the trial court, State v. Laliberte, 124 N.H. 621, 474 A.2d 1025 (1984), we do not restrict a party only to authorities cited at trial. Since we are satisfied that RSA 511-A:5 is dispositive of the case when applied to the facts found by the superior court, we rest our decision on that statute.

RSA chapter 511-A was enacted in 1973 to conform the law of this State to standards of due process applied in such cases as Clement v. Four North State Street Corp., 360 F.Supp. 933 (D.N.H.1973). The statute in its present form is a mixture of substantive and procedural law. Its most obvious feature is its provision for notice and hearing before property interests can be encumbered by a pre-judgment attachment. Its most common application is to actions in which the plaintiff claims that the property owner is liable to him in tort or contract. Its applicability has not been limited to such cases, however. By its terms, the new statute applies "[i]n all civil actions, except as otherwise provided in replevin actions...." RSA 511-A:1. Recently, we held that the statute controls applications for attachments in aid of equity, Sindt v. Gilfoyle, 124 N.H. 315, 469 A.2d 1334 (1983), and from the moment of its enactment, it has been clear that the new statute applies to proceedings to secure liens under RSA chapter 447.

This applicability is apparent in the provision of RSA 511-A:8, III for specific exemptions from the requirement of prior notice. RSA 511-A:8, III recognizes that the court may grant an order of attachment ex parte "to perfect a labor and materials lien under RSA 447." The enactment of this exemption would have been a waste of legislative words unless the statute generally applied to attachments under RSA chapter 447. See Appeal of Village Bank and Trust Co., 124 N.H. 492, 471 A.2d 1187 (1984). This conclusion was recognized in our holding in P.J. Currier Lumber Co. v. Stonemill Construction Corp., 120 N.H. 399, 415 A.2d 869 (1980).

The portion of the statute that controls this case is the provision in RSA 511-A:5 that pre-judgment attachments "shall not be effective against bona fide purchasers for value until attachments of real estate have been recorded in the registry of deeds...." This language must mean that such attachments may never encumber the interest of a bona fide purchaser for value when that interest has been acquired...