Reisterstown Lumber Co. v. Royer

• Decision Date: 01 September 1991
• Docket Number: No. 1101,1101
• Citation: 91 Md.App. 746,605 A.2d 980
• Parties: REISTERSTOWN LUMBER COMPANY v. Denise K. ROYER
• Court: Court of Special Appeals of Maryland

Page 746

91 Md.App. 746

605 A.2d 980

REISTERSTOWN LUMBER COMPANY v. Denise K. ROYER.

No. 1101 Sept. Term, 1991.

Court of Special Appeals of Maryland.

May 6, 1992.

Thomas C. Beach, III (Howard R. Feldman and Whiteford, Taylor & Preston on the brief) Baltimore, for appellant

Thomas F. Stansfield, Westminster, for appellee.

Argued before ROSALYN B. BELL, FISCHER and HARRELL, JJ.

ROSALYN B. BELL, Judge.

Appellant, Reisterstown Lumber Company (Reisterstown), appeals from an order of the Circuit Court for Carroll County. Reisterstown had filed a petition for a mechanics' lien, pursuant to Md.Real Prop.Code Ann. §§ 9-101 through 9-114 (1974, 1988 Repl.Vol. & 1991 Cum.Supp.), against the property of appellee, Denise K. Royer. Following a show cause hearing, the trial judge refused Reisterstown's request for an interlocutory or final mechanics' lien

                against Royer.   Reisterstown contends that the trial court erred in denying its request for an interlocutory mechanics' lien after it had presented prima facie evidence of its entitlement to the lien.   We will remand the case for further proceedings
                

STATEMENT OF FACTS

From August 3, 1990 to November 30, 1990, Reisterstown furnished and delivered to Royer lumber, supplies, and building materials for use in the construction of a new residence on Royer's property in Carroll County. The lumber, supplies, and building materials were purchased by John W. Davis and Marlene G. Davis, the general contractors retained by Royer to construct the residence.

The value of the goods delivered for use in the construction was $18,617.44 (including contractual late charges of two percent per month through January 25, 1991). Payments totalling $234.59 were received by Reisterstown, leaving an outstanding balance of $18,382.85, plus contractual late charges from January 25, 1991.

Reisterstown claims that it timely served Royer with a Notice to Owner of Intention to Claim a Mechanics' Lien by posting a notice on the front door of Royer's property on February 21, 1991, after it was unable to serve Royer personally elsewhere. On May 10, 1991, Reisterstown initiated proceedings in the circuit court. Reisterstown requested that an order establishing a mechanics' lien be entered in the amount of $18,382.85 against the property of Royer. After determining that a lien should attach, pursuant to § 9-106(a) of the Real Property Article, the trial court issued a show cause order on May 16, 1991, directing Royer to indicate why a mechanics' lien should not attach, by filing either a counter-affidavit or a verified answer as required by § 9-106(a). The answer was to be filed on or before June 14, 1991.

Royer's answer was docketed on June 17, 1991, along with several affidavits. Affidavits presented to the court attest to Royer's denial of the receipt of the notice. Royer also contended that the property to be subject to the lien is a single family dwelling intended as her personal residence. Thus, under § 9-104(f)(3) of the Real Property Article, the amount of the lien may not exceed the amount of the owner's indebtedness to the contractor. Royer also alleged that the contractors in this case were in breach of their contract with her, and that she was no longer indebted to them because of that breach. This allegation in substance was to the effect that she owed nothing to the contractor and, therefore, nothing to Reisterstown. Royer also raised the issue of whether the materials and services claimed to be provided were, in fact, used on her property.

Two days later, on June 19, 1991, a hearing was held before the circuit court, as specified in the show cause order. Reisterstown's counsel, conceding that Royer had established a genuine dispute as to a material fact, thus foreclosing the entry of a final mechanics' lien, stated to the court that its only alternative was to issue an order establishing an interlocutory lien. Royer, on the other hand, contended that the court was required to make a "probable cause" determination before entering any interlocutory lien, pursuant to § 9-106(b)(3) and Rule BG73 d 3. On June 20, 1991, the trial judge denied the request for an interlocutory lien, stating that Reisterstown "has not met its burdens to establish the interlocutory mechanic's [sic] lien requested." The court entered an order immediately dismissing the petition for lien, but allowing Reisterstown 30 days within which to request a trial on the petition for lien. Instead, Reisterstown immediately brought this appeal.

DISMISSAL OF THE PETITION FOR MECHANICS' LIEN

Appellant first argues that the trial judge erred in dismissing its petition for a mechanics' lien after the show cause hearing. Although it appears that the trial judge attempted to follow the correct procedure, we agree with appellant. We explain.

The procedure to be employed at a show cause hearing on a petition for a mechanics' lien in Maryland is governed by § 9-106 of the Real Property Article and Rule BG73. Rule BG73 d states:

"1. Final Order if No Genuine Dispute.

"(a). If the pleadings, affidavits and admissions on file, and the evidence, if any, show that there is no genuine dispute as to any material fact and that the lien should attach as a matter of law, then a final order shall be entered establishing the lien for want of any cause shown to the contrary. Further, if it appears that there is no genuine dispute as to any portion of the lien claim, then the validity of that portion shall be established and the action shall proceed only on the disputed amount of the lien claim.

"(b) If the pleadings, affidavits and admissions on file, and the evidence, if any, show that there is no genuine dispute as to any material fact and that the petitioner failed to establish his right to a lien as a matter of law, then a final order shall be entered denying the lien for cause shown.

"2. Interlocutory Order if Probable Cause.

"If the court determines from the pleadings, affidavits and admissions on file, and the evidence, if any, that a final order under subsection d 1(a) should not be entered, but that there is probable cause to believe the petitioner is entitled to a lien, the court shall enter an interlocutory order which:

(i) establishes a lien;

(ii) describes the land to which the lien attaches;

(iii) states the amount of the claim for which probable cause is found;

(iv) specifies the amount of a bond which may be filed to have the land released from the lien;

(v) may require the petitioner to file a bond in an amount that the court believes sufficient for damages, including reasonable attorney's fees; and (vi) assigns a date for the trial of all the matters which may be necessary to adjudicate the establishment of the lien, which date shall be within a period of six months. The owner or any person interested in the land, however, may, at any time, move to have the lien established by the interlocutory order modified or dissolved.

"3. Probable Cause Not Found.

"If no final or interlocutory order is granted under subsections 1 and 2, the court shall enter an order that the petition for lien be dismissed unless the petitioner, within 30 days thereafter, files a written request that the petition for lien be assigned for trial."

Under the Rule, there are four options from which a trial judge may choose at a show cause hearing, depending on the circumstances. If there are no genuine disputes as to material fact, then final judgment should be entered, either establishing or denying a mechanics' lien. Rule BG73 d 1. If there are disputes as to material fact, no immediate final judgment should be entered. Rather, the trial judge should, as a separate matter, determine whether the petitioner has established probable cause for entitlement to a mechanics' lien. If probable cause is found, an interlocutory mechanics' lien should be entered, and the case set for trial within six months. Rule BG73 d 2. If probable cause is not found, no interlocutory lien is to be granted, but an order should be entered giving the petitioner 30 days in which to request a trial on the petition. If no such request is made, the case is to be dismissed. Rule BG73 d 3.

In this case, the trial judge wrote in his order:

"WHEREAS, this Court has reviewed the pleadings, affidavits and admissions pursuant to Md.Rule BG73(d)(2) and

"WHEREAS, Plaintiff has not met its burdens to establish the interlocutory mechanic's [sic] lien requested, it is this 20th day of June, 1991 "ORDERED, that the Petition for Lien be, and is hereby, DISMISSED pursuant to Md.Rule BG73(d)(3) and it is further

"ORDERED, that Plaintiff be given leave to file within 30 days a written request that the Petition for Lien be assigned for trial pursuant to Md.Rule BG73(d)(3)."

The trial judge probably intended to deny an interlocutory lien pursuant to Rule BG73 d 3 and to follow the procedures set out in Rule BG73 d, generally. His choice of language, however, was incorrect. Rule BG73 d 3 states that, if probable cause is not found, the petition be dismissed if no request for trial is made within 30 days. As we noted in E.L. Gardner, Inc. v. Bowie Joint Venture, 64 Md.App. 302, 307 n. 1, 494 A.2d 988, cert. denied, 304 Md. 296, 498 A.2d 1183 (1985), the order envisioned by the Rule is in the nature of an order nisi. By dismissing the petition immediately, rather than ordering that the case would be dismissed unless the request for trial was made within 30 days, the trial judge, however inadvertently, improperly rendered final judgment for appellee. As a result, we will vacate the judgment and remand the case for further proceedings.

THE PROBABLE CAUSE DETERMINATION

Having successfully argued that the trial judge erred in dismissing its petition for a mechanics' lien following the show cause hearing, appellant next argues that the trial judge, on remand, must enter an interlocutory mechanics' lien, pending the outcome of the trial on the merits. Appellant advances alternative...