Topjian Plumbing and Heating, Inc. v. Bruce Topjian, Inc.

• Decision Date: 10 July 1987
• Docket Number: No. 86-351,86-351
• Citation: 129 N.H. 481,529 A.2d 391
• Parties: TOPJIAN PLUMBING AND HEATING, INC. v. BRUCE TOPJIAN, INC. and Jeffrey Fencer et al.
• Court: New Hampshire Supreme Court

Page 391

529 A.2d 391

129 N.H. 481

TOPJIAN PLUMBING AND HEATING, INC. v. BRUCE TOPJIAN, INC. and Jeffrey Fencer et al.

No. 86-351.

Supreme Court of New Hampshire.

July 10, 1987.

Francis A. Gaimari, Lowell, Mass. by brief for the plaintiff.

Thomas Morgan, Salem by brief for the defendants Jeffrey and Ann Fencer.

THAYER, Justice.

The issues presented in this interlocutory appeal concern whether the pre-judgment attachment statute, RSA 511-A:8, requires prior application to the court for an order to attach property to secure a labor and materials lien under RSA chapter 447. For the reasons that follow, we affirm the superior court's dismissal of the attachments as invalid because no application for them was made to the court, and they were therefore, not in compliance with RSA 511-A:8.

On November 14, 1985, Topjian Plumbing & Heating, Inc., the plaintiff, sought an attachment to satisfy an anticipated judgment in a contract action against the defendant, Bruce Topjian, Inc., by attempting to perfect a labor and materials lien pursuant to RSA chapter 447 by recording writs of attachment in the form of a lis pendens in the Rockingham County Registry of Deeds in accordance with RSA 511-A:8, III. The plaintiff purported to attach the interests of five parcels of land owned by Bruce Topjian, Inc. and one parcel of land owned by Jeffrey and Ann Fencer, grantees of a parcel of land previously owned by Bruce Topjian, Inc. When the plaintiff acted to attach the property of the Fencers and Bruce Topjian, Inc., it did not petition the court for permission to effect the attachments, but merely completed the writ of attachment forms, served them on the Fencers and Bruce Topjian, Inc., and recorded them at the registry of deeds.

The Fencers filed a motion objecting to the attachment on their property and requested a hearing, which was subsequently scheduled for April 14, 1986. Bruce Topjian, Inc., did not appear in the underlying contract action and was defaulted; neither, did it object to the attachment or appear at the attachment hearing. The mortgagee of the Bruce Topjian, Inc. parcels of land foreclosed, and on January 23, 1986, conducted a mortgagee's sale, selling the remaining parcels. Russell McLean and John Zirpolo purchased one of these parcels and a week later moved to intervene in this action, challenging the validity and enforceability of the attachment on their property. The plaintiff and the intervenors have since settled, and the attachment on the intervenors' parcel has been discharged.

On April 14, 1986, the Superior Court (Temple, J.) heard arguments by counsel, including offers of proof, pertaining to the attachment on the Fencers' property. At this time, the plaintiff did not object either to the procedures used by the court or to the defendants' offers of proof. Thereupon, the court invalidated all of the attachments filed by the plaintiff, stating that the "[a]ttachments of November 14, 1985 are ruled to be invalid as not in compliance with RSA 511-A:8, III in that no application for same was made to the Court. Chagnon Lumber Co. v. Stone Mill Construction Corp., 124 N.H. 820, 823 [474 A.2d 588 (1984) ] [sic]. Attachments are ordered discharged."

The plaintiff brought this interlocutory appeal, arguing on appeal that the court erred: (1) in dismissing the attachments because of the plaintiff's non-compliance with RSA 511-A:8, III; (2) in invalidating the attachments against purchasers of property not parties to the present action; and (3) in discharging the attachment on the Fencers' property when no testimony was presented to the effect that the Fencers were bona fide purchasers for value without notice, but only statements made by attorneys, without objection. The Fencers counter that the court properly dismissed the attachment, which the plaintiff attempts to characterize as a lis pendens, because the plaintiff failed to apply to the court for the attachment pursuant to RSA 511-A:8, and because the Fencers were bona fide purchasers for value without notice.

The superior court invalidated the plaintiff's attachments because of the plaintiff's failure to petition the court for permission to attach the property prior to serving the attachments on the defendants and recording them at the registry of deeds. RSA 511-A:8 clearly requires that application must be made to the court for an order authorizing an ex parte pre-judgment attachment, "[t]he purpose of [which] is to obtain security for the payment of a plaintiff's judgment should [plaintiff] prevail." R. Wiebusch, 4 New Hampshire Practice, Civil Practice and Procedure § 566, at 327 (1984). RSA 511-A:8 states in pertinent part that:

"Upon application to the court, in exceptional circumstances, an attachment may be ordered in advance of notice to the defendant if the plaintiff establishes probable cause to the satisfaction of the court of [a] basic right to recovery and the amount thereof...."

RSA 511-A:8, III permits the filing of a writ in the form of a lis pendens without prior court application or approval and states in pertinent part that:

"III. In ... cases ... to perfect a labor and materials lien under RSA 447, a writ of attachment may be filed at a registry of deeds without prior application and notice, provided said writ is in the form of a lis pendens and specifically restricts its application to the particular real estate described in the writ and the return of attachment."

RSA 511-A:8, III deals with an attachment in the form of a lis pendens, "[a] pending suit," BLACK'S LAW DICTIONARY 840 (5th ed. 1979), whose purpose "is to give notice to third parties that any interest they may acquire in the property is subject to the outcome of litigation.... Lis pendens cannot be used to attempt to gain a priority in bankruptcy nor to aid in the satisfaction of a possible money judgment." Press v. McNeal, 568 F.Supp. 256, 260 (E.D.Pa.1983) (citation omitted). In other words, recording a lis pendens gives notice but does not create an attachment or perfect a lien.

The plaintiff in this case attempted to obtain a priority position in distribution of the defendant Bruce Topjian, Inc.'s remaining funds and to aid in the satisfaction of an anticipated money judgment by attaching, ex parte, a lien on the defendants' property pursuant to RSA 511-A:8. In spite of its efforts to comply with RSA 511-A:8, the plaintiff neglected to apply to the court for prior approval of the attachments before serving them on the defendants and recording them at the registry of deeds.

In 1984, this court, interpreting RSA chapter 511-A, determined that the standard requirements of due process, such as notice and hearing, must be adhered to before property...