Morris J. Liebergott and Associates v. Investment Bldg. Corp.

• Citation: 241 A.2d 138,249 Md. 584
• Decision Date: 01 May 1968
• Docket Number: No. 185,185
• Court: Maryland Court of Appeals
• Parties: MORRIS J. LIEBERGOTT & ASSOCIATES v. INVESTMENT BUILDING CORPORATION et al.

Page 584

249 Md. 584

241 A.2d 138

MORRIS J. LIEBERGOTT & ASSOCIATES v. INVESTMENT BUILDING CORPORATION et al.

No. 185.

Court of Appeals of Maryland.

May 1, 1968.

Richard C. Whiteford, Towson (Wilbur D. Preston, Jr., and Due, Whiteford, Taylor & Preston, Baltimore, on the brief), for appellant.

Joseph A. Lynott, Jr., Rockville, for appellees.

Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES, McWILLIAMS and SINGLEY, JJ.

HAMMOND, Chief Judge.

Judge Raine granted summary judgment for the owner of a fifteen-story office building in Towson in an action to foreclose a mechanics' lien duly filed by an engineer, Liebergott, who at the instance of the architect had prepared structural, electrical and mechanical plans and specifications for the building, some of which were used in the construction. Several months after work had started, Liebergott's services were dispensed with and another's engineering plans used thereafter.

Judge Raine's opinion was, in pertinent part:

'Liebergott was a design engineer employed by the architect. The contract filed as an exhibit with the motion provided 'the engineer's responsibility for services during the construction phase of the work has been removed from this agreement * * *.' In a letter dated October 20, 1965 to Mr. Charles B. Wheeler, Baltimore County official, Liebergott said 'my services, however, for field supervision and inspection were not and are not a part of the contract.' In that letter and in his letter dated November 3, 1965 to the general contractors he specifically denied responsibility for any field supervision and inspection. The affidavit of the general contractor and architect stated that Liebergott never performed any supervision during the construction of the building. The owner made a similar affidavit. Despite the contract and letters referred to, Liebergott made affidavit that he performed supervisory and inspection services as part of his contractual agreement. He filed an exhibit showing that he made ten visits to the site that involved 'inspection of progress of work.' The exhibits disclosed that the building in question is a fifteen story office building, and it is clear that the ten inspection trips by Liebergott could not possibly amount to superintendence or supervision of construction. * * * this court believes that the instant case is controlled by Caton Ridge (, Inc.) v. Bonnett, 245 Md. 268 (225 A.2d 853). Reading and rereading that case convinces the court that an architect or design engineer is not entitled to a mechanic's lien unless he also supervises the construction of the building. The Court of Appeals adopted a general rule that an architect who furnishes plans and supervises the construction is entitled to a lien (emphasis supplied). * * * By any reasonable definition of the terms, suprervision or superintendence Liebergott did neither, and therefore is not entitled to a lien.'

The case was not one for summary judgment. Under Caton Ridge, Inc. v. Bonnett, 245 Md. 268, 225 A.2d 853, a design engineer who prepares plans used in a building and supervises the use of his plans would be entitled to the protection of the mechanics' lien statute. Liebergott's contract with the architect did provide that his 'responsibility for services during the construction phase of the work has been removed from this agreement,' but the contract went on to say:

'the engineer agrees to perform the following services without additional compensation:

'He shall check and approve shop drawings and make himself available for consultation on any problems arising as a result of an error or omission generated by his office and make the necessary changes to the drawings to effect the correction.

'Any additional services shall be taken care of as described in Article 2.4 above.'

Liebergott filed an answer to the owner's motion for summary judgment in which he alleged that he:

'did render supervisory services during the construction of the building and did inspect the construction of the building while it was under construction. These services were rendered while performing his duties and obligations under his contractual agreement with James H. Cosgrove (Defendant's Exhibit 1 B). These supervisory and inspection services were performed in connection with the checking and approval of shop drawings and consultations with the representative of the owner and the contractors at the job site.'

Liebergott also alleged that he:

'performed * * * (his) contractual obligations (to the architect) by actually inspecting and supervising various phases of the construction of the building on numerous occasions. In connection with this, he personally supervised and/or inspected on the job site problems arising out of the location of foundations (caissons). He supervised and/or inspected the construction on the job site in connection with the compliance of the builder with his design and specifications for the placement of reinforcement in connection with the pouring of the slab. He was also required by the owner to inspect and supervise on the job site sheeting and shoring in connection with the retaining walls which were redesigned as an extra under his contract with Cosgrove. In addition to the aforegoing specific instances of supervision and inspection on the job site, the Plaintiff also visited the job site for the purpose of supervising and inspecting the construction on the dates and for the purposes shown on Plaintiff's Exhibit A attached hereto.'

Liebergott filed an affidavit in proper form in opposition to the owner's motion for summary judgment, in which he supported under oath the allegations of his answer and swore:

'That Exhibit A attached to his Answer to Defendant's Motion for Summary Judgment is an accurate list of dates when he visited the job site and specific services performed on each date. Affiant says the Plaintiff's Exhibit A is not intended as an exclusive record of all services performed by him but that it is an accurate extract of his records kept in the ordinary course of...