Mcnair Builders Inc. v. Taylor, No. 08-CV-265.

• Decision Date: 09 September 2010
• Docket Number: No. 08-CV-265.
• Citation: 3 A.3d 1132
• Parties: McNAIR BUILDERS, INC., Appellant, v. Robert M. TAYLOR, Appellee.
• Court: D.C. Court of Appeals

3 A.3d 1132

McNAIR BUILDERS, INC., Appellant,

v.Robert M. TAYLOR, Appellee.

No. 08-CV-265.

District of Columbia Court of Appeals.

Argued Oct. 14, 2008.

Decided Sept. 9, 2010.

John P. Coyle, with whom Abigail C. Briggerman, Washington, DC, was on the brief, for appellant.

Johnny R. Galloway for appellee.

Before RUIZ, GLICKMAN, and FISHER, Associate Judges.

RUIZ, Associate Judge:

This appeal arises from appellant's filing of a notice to enforce a mechanic's lien on appellee's property, which, in turn, led to appellee's underlying lawsuit challenging appellant's enforcement of the lien as unlawful and a slander of title. This appeal presents two issues: first, whether this court has jurisdiction pursuant to the collateral order doctrine to review the Superior Court's denial of appellant's motion for summary judgment on the ground that appellant's conduct in enforcing the mechanic's lien is immunized by the judicial proceeding privilege; and, if so, whether the judicial proceedings privilege applies to the filing of a mechanic's lien by a party. We decide that in light of the Supreme Court's decisions in Will v. Hallock, 546 U.S. 345, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006), and Mohawk Industries, Inc. v. Carpenter, --- U.S. ----, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), which refined application of the collateral order doctrine, we do not have jurisdiction to hear this interlocutory appeal. Therefore, we have no need to answer the question on the merits concerning application of the judicial proceeding privilege to mechanic's liens. Review of that issue will have to await a final judgment in Superior Court. We therefore remand with instructions that the trial court continue with the proceedings.

I. Facts and Procedural Background

The facts underlying the parties' dispute have been previously set out in significant detail in this court's opinion in McNair Builders, Inc. v. 1629 16th St., L.L.C., 968 A.2d 505 (D.C.2009):

Pursuant to a 2003 contract, appellant (hereafter “McNair”) performed construction work on a building or buildings located at 1629 16th Street, N.W., then wholly owned by appellee, 1629 16th Street, L.L.C. (hereafter “1629 L.L.C.”). After a dispute arose between the parties over McNair's performance and 1629 L.L.C.'s obligation to pay, McNair filed a notice of intent with the Office of the Recorder of Deeds on January 16, 2006, “to hold a Mechanic's Lien against the interest of the current owner ... [of the] property located at 1629 16th Street, N.W. ..., Square ... 0193[,] ... Lot(s) 0152, 2075, [and] 2077.” The notice named the owner of the property as “1629 16th Street, L.L.C.”

In the meantime, however, by a Declaration dated April 7, 2005, 1629 L.L.C. had submitted the land and improvements “located on Lot 152 in Square 193 ... to the provisions of” the District's Condominium Act of 1976 (as amended in 1992), establishing “a plan of condominium ownership of the [p]roperty.” Specifically, the plan created five residential units plus two parking units and common elements. Once the plan was approved, the subdivided lots acquired the numbers 2072 through 2078 in the District's land records. Thus, for example, unit number 4 and parking unit number 1 in the condominium declaration became “Lots 2075 and 2077, respectively,” in Square 193. On October 4, 2005, 1629 L.L.C. sold Lots 2075 and 2077 to Robert M. Taylor, its Managing Member. The remaining Lots, with one exception, had apparently also been conveyed to individual owners by the time McNair filed its mechanic's lien notice in January 2006. The exception was Lot 2076, which 1629 L.L.C. had originally reserved as “convertible space” but then converted to a residential unit by amending the condominium declaration, though retaining ownership of it.

Following the dispute mentioned above, McNair filed its mechanic's lien and, in April 2006, a complaint to enforce the lien, as well as for breach of contract and damages in quantum meruit. Simultaneously, McNair filed a notice of pendency of action ( lis pendens ). See D.C.Code § 42-1207 (2001). On 1629 L.L.C.'s subsequent motion for partial summary judgment, the trial court ruled that the mechanic's lien was invalid for failure to name the correct owner of the subject property. Focusing primarily on Robert M. Taylor's ownership of Lots 2075 and 2077, the judge concluded that “there is no material factual dispute as to the contents of the lien and who the record owner was at the time the lien was filed”: it was Taylor, not 1629 L.L.C. The court later “set [ ] aside the lis pendens ” because of invalidity of the lien to which it related. See D.C.Code § 42-1207(d).

Id. at 506-07.

After McNair filed its notice of intent with the Recorder of Deeds in January 2006, and then, a complaint to enforce the mechanic's lien in Superior Court on April 11, 2006, Robert M. Taylor filed a complaint of his own, on April 22, 2006. Count I of Taylor's complaint sought removal of the cloud on title created by the mechanic's lien. Taylor also alleged that the mechanic's lien slandered his title to the property (Count II), and that in its filing of the mechanic's lien McNair had engaged in fraud and intentional misrepresentation (Count III). McNair filed a motion for summary judgment, arguing that its lien filing was immunized from liability by the judicial proceedings privilege. ¹ The trial court denied McNair's motion for summary judgment because “there is no authority as a matter of law to confer the distinction of protected attorney communications-and related judicial proceedings privilege-to the filing of Notice of Mechanic's Lien.” McNair then filed this appeal.

II. Jurisdiction

Before we may decide whether the judicial proceedings privilege applies to the filing of a mechanic's lien and whether it extends to filings made by the party in interest ( i.e., not an attorney), we must first determine whether this court has jurisdiction, pursuant to the collateral order doctrine, to hear the appeal of the denial of appellant's motion for summary judgment. We conclude that we do not have jurisdiction over the interlocutory ruling denying the privilege in this case.

This court has jurisdiction to hear appeals from final orders and judgments of the Superior Court. See D.C.Code § 11-721(a)(1) (2001). A final order has been defined as one that resolves the case on its merits “so that the court has nothing remaining to do but to execute the judgment or decree already rendered.” In re Estate of Chuong, 623 A.2d 1154, 1157 (D.C.1993) (en banc) (quoting McBryde v. Metro. Life Ins. Co., 221 A.2d 718, 720 (D.C.1966)). The denial of a motion for summary judgment is typically not appealable because it contemplates further proceedings in the trial court and necessarily leaves issues to be resolved. See Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 339 (D.C.2001). “Under the collateral order doctrine, however, a ruling such as the denial of a motion to dismiss may be appealable if it has ‘a final and irreparable effect on important rights of the parties.’ ” Id. (quoting Bible Way Church of Our Lord Jesus Christ of the Apostolic Faith v. Beards, 680 A.2d 419, 425 (D.C.1996)); see Stein v. United States, 532 A.2d 641, 643 (D.C.1987) (adopting Supreme Court's collateral order doctrine, which “recognized a ‘small class' of appealable, albeit non-final, orders,” as set out in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)).

For this court to have jurisdiction to review a non-final order pursuant to the collateral order doctrine, “the ruling must satisfy three requirements: (1) it must conclusively determine a disputed question of law, (2) it must resolve an important issue that is separate from the merits of the case, and (3) it must be effectively unreviewable on appeal from a final judgment.”

Id. at 339-40 (citing Bible Way, 680 A.2d at 425-26). We have said that “[t]he denial of a motion that asserts an immunity from being sued is the kind of ruling that is commonly found to meet the requirements of the collateral order doctrine and thus [to] be immediately appealable....” Id. at 340 (citing Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), ² and Mitchell v. Forsyth, 472 U.S. 511, 525-29, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ³ ). Since our opinion in Finkelstein, Thompson & Loughran, the Supreme Court, in Will v. Hallock, has emphasized that the collateral order doctrine is “modest” in scope and described the conditions required for its application as “stringent.” 546 U.S. 345, 349-50, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). Specifically with respect to the third requirement, the Court cautioned that “not mere avoidance of a trial, but avoidance of a trial that would impair a substantial public interest” is required before an appellate court invokes jurisdiction on the ground that an order is otherwise “ ‘effectively’ unreviewable if review is to be left until later.” Id. at 353, 126 S.Ct. 952. In Will, the Court held that the trial court's refusal to apply the “judgment bar” of the Federal Tort Claims Act to dismiss a Bivens action did not meet this standard and was thus not appealable under the collateral order doctrine. 546 U.S. at 353-54, 126 S.Ct. 952.

We examine the three requirements for appealability under the collateral order doctrine in light of the Court's further guidance in Will, and consider whether denial of the judicial proceedings privilege serves a sufficiently important public interest to merit expedited appellate evaluation and, possibly, vindication. We conclude that it does not and that we therefore lack jurisdiction to hear this interlocutory appeal.

The first requirement of the collateral order doctrine, whether the trial court's ruling conclusively decides a disputed legal issue, is easily met in this case. The applicability of the judicial proceedings privilege to the filing of a...