NG BROTHERS CONSTRUCTION, INC. v. Cranney
| Decision Date | 30 April 2002 |
| Citation | 766 NE 2d 864,436 Mass. 638 |
| Parties | NG BROTHERS CONSTRUCTION, INC. v. JOHN CRANNEY & others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
Robert B. Carpenter (Peter S. Brooks with him) for the plaintiff.
Edward J. Fallman for the defendants.
Joel Lewin & Andrew W. Daniels for Associated General Contractors of Massachusetts, amicus curiae, submitted a brief.
The plaintiff, Ng Brothers Construction, Inc. (plaintiff), filed a complaint in the Superior Court, seeking in Count III to enforce its mechanic's lien rights against the defendants, John Cranney, Naomi Cranney, and Nevena Cranney.2 Each party moved for summary judgment on Count III. A judge in the Superior Court allowed the defendants' motion, denied the plaintiff's cross motion and then entered a separate and final judgment for the defendants on Count III, pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). The plaintiff appeals from the entry of final judgment on Count III of its complaint. The Superior Court judge concluded that the plaintiff had not perfected its lien rights because it did not file a notice of substantial completion, a document he concluded was a condition precedent to perfection under G. L. c. 254, § 2A, of the mechanic's lien statute. We granted the plaintiff's application for direct appellate review. We affirm the judgment for the defendants, but for reasons different from those of the Superior Court judge.
1. Background. We summarize undisputed material facts drawing on the Superior Court judge's memorandum on the cross motions for partial summary judgment. In March, 1997, the defendants and the plaintiff entered into a written contract for the renovation of the defendants' home. The plaintiff agreed to act as general contractor in connection with the renovation, with authority to subcontract various aspects of the work; the defendants agreed to pay the plaintiff a fixed fee of $880,000 on a payment schedule. Soon the plaintiff claimed that the defendants continuously breached the agreed-on payment terms and that they sought various modifications necessitating change orders and delays in the work schedule. In the fall of 1997, a dispute arose concerning the plaintiff's failure to include the framing costs of the project in the contract price. The defendants hired Robert Bross as the owners' representative to supervise and deal with the plaintiff and (among other duties) to maintain a daily log of its efforts.
In late October, the plaintiff stopped work because of the framing costs dispute. On November 14, 1997, it recorded a notice of contract against the property pursuant to G. L. c. 254, § 2.3 After the defendants agreed to pay the additional lumber costs, the plaintiff resumed work on November 24, 1997. Nevertheless, on January 9, 1998, the plaintiff recorded a statement of account pursuant to G. L. c. 254, § 8.4
On January 26, 1998, the parties sought to settle some of their differences by agreeing to a partial release, and on January 29, the plaintiff filed a notice of dissolution of its lien pursuant to G. L. c. 254, § 10.5 Disagreements between the parties continued; on March 9, 1999, the plaintiff filed its second notice of contract, and on June 3, 1999, its second statement of account.
The plaintiff subsequently commenced this lawsuit against the defendants asserting, in Count III, its entitlement to the enforcement of a mechanic's lien under G. L. c. 254. The defendants moved for summary judgment on Count III arguing that the plaintiff's second notice of contract and statement of account were untimely filed. The plaintiff filed a cross motion for summary judgment contending that the mechanic's lien was properly perfected because it had timely complied with the pertinent provisions of G. L. c. 254, §§ 2 and 8. At issue was when the plaintiff had last performed or furnished labor or materials or both labor and materials. See G. L. c. 254, §§ 2 (iii), 8 (iii).
A Superior Court judge allowed the defendants' motion for summary judgment and denied the plaintiff's cross motion for summary judgment. Although neither party briefed or argued the issue, the judge concluded that the plaintiff failed to perfect its lien rights because it did not file a notice of substantial completion, a document the judge determined was a condition precedent to the filing of a notice of contract and statement of account, see G. L. c. 254, § 2A.6 The plaintiff sought reconsideration for the opportunity to brief the issue. The motion for reconsideration was denied.
2. Statutory framework and ruling of Superior Court judge. The initial issue for decision is whether a notice of substantial completion is a condition precedent to the recording of a valid and enforceable notice of contract and statement of account, and thus the perfection of a mechanic's lien under G. L. c. 254. We conclude that G. L. c. 254, the mechanic's lien statute, contains no such requirement.
The mechanic's lien statute provides "that a debt due to a person who performs labor or supplies material for the improvement of real estate by agreement or with the express or implied consent of the owner is secured by a mechanic's lien." Hammill-McCormick Assocs., Inc. v. New England Tel. & Tel. Co., 399 Mass. 541, 542 (1987). The statute provides "a comprehensive scheme which compels strict compliance in order to obtain relief." Mullen Lumber Co. v. Lore, 404 Mass. 750, 752 (1989). Individual sections of the statute delineate time requirements for creating, maintaining, and enforcing a lien. See, e.g., G. L. c. 254, § 2 (); § 8 (); § 11 (). See National Lumber Co. v. LeFrancois Constr. Corp., 430 Mass. 663, 668 (2000). "Although not every procedural mistake is fatal, Valentine Lumber & Supply Co. v. Thibeault, 336 Mass. 411, 413 (1957), failure to comply normally results in dissolution of the lien, see Blount Bros. v. Lafayette Place Assocs., 399 Mass. 632 (1987), or in failure of the lien to attach, Street Lumber Co. v. Sullivan, 201 Mass. 484 (1909)." Mullen Lumber Co. v. Lore, supra at 752-753. See Hammill-McCormick Assocs., Inc. v. New England Tel. & Tel. Co., supra at 543, and cases cited (statute "contains filing and notice requirements to protect the owner and others with an interest in the property").
General Laws c. 254, §§ 2 and 8, both provide that their respective notices must be filed no later than the earliest of three dates: (1) a set amount of time after the filing or recording of a notice of substantial completion under § 2A; (2) a set amount of time after the filing or recording of a notice of termination under § 2B; or (3) a set amount of time after the last day someone affiliated with the party seeking to enforce the lien performed or furnished labor or materials or both labor and materials.
Although G. L. c. 254, § 2A, provides that the owner and the contractor "shall" file a notice of substantial completion "upon or after substantial completion of any contract subject to the provisions of section two," the statute contains no requirement that such a filing under § 2A is a prerequisite to filing notices under §§ 2 and 8. In fact, the express wording of §§ 2 and 8 governing the timing of the respective notices is to the contrary. Both sections use the word "or" in stating the alternative deadlines for filing their respective notices. Thus, filing a notice under § 2A is only one of three possible options for calculating the deadline for filing a notice under the statute.
Further, the express language of G. L. c. 254, § 2, authorizes the filing of a notice of contract before a notice of substantial completion: a notice of contract may be filed any time after execution of the contract, "whether or not the date for performance stated in such written contract has passed and whether or not the work under such written contract has been performed." Moreover, imposing a requirement of filing a notice of substantial completion is also unworkable as a practical matter: it would force a contractor first to obtain the signature of the property owner (which the notice of substantial completion requires), thereby allowing a property owner to control the process by refusing to sign the notice. Accordingly, the filing or recording of a notice of substantial completion is not a prerequisite to the filing or recording of a notice of contract or a statement of account, and a contractor may, without filing or recording a notice of substantial completion, perfect a mechanic's lien under G. L. c. 254.
3. Plaintiff's perfection of its mechanic's lien. The parties' summary judgment motions turn on whether the plaintiff perfected its mechanic's lien within the time periods required by G. L. c. 254, §§ 2 and 8. Although we could remand the case for determination of this issue, the question is ripe for decision. The parties have fully briefed their respective positions and the record includes the materials in support of their respective summary judgment motions. We thus resolve the issue on the record before us. Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 141-142 (1975); School Comm. of Springfield v. Board of Educ., 366 Mass. 315, 350 (1974), cert. denied, 421 U.S. 947 (1995).
Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law. See Hakim v. Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 283 (1997); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact. Pederson v. Time,...
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