DISCUSSION
Mechanics' liens are available to "[w]hoever performs labor or furnishes
labor or materials ...used in erecting, altering, moving or repairing a house,
building or appurtenances ...by virtue of a contract with or by consent of the
4 owner" in order "to secure payment thereof." 10 M.R.S.A. § 3251 (2007). "A lien
is given upon the ground that the work has been a benefit to the realty, and has
enhanced its value." Combustion Engineering, Inc. v. Miller Hydro Group, 577 A.2d
1186, 1188 (Me. 1990), quoting Bangor Roofing & Sheet Metal Co. v. Robbins
Plumbing Co., Inc., 151 Me. 145, 148, 116 A.2d 664, 666 (1955). In this case, it is
undisputed that neither CWS nor Allied contracted with Hains to provide any
labor or materials. Accordingly, the two questions before this Court are whether
Hains consented to CWS's and Allied's work within the meaning of the statute
and the value of the lien, if any, to be charged to Hains' property.
A. Hains' Consent to the Work of CWS and Allied
At oral argument, the attorneys for CWS, Allied and Hains stipulated that
the facts before this Court are undisputed as they relate to the question of Hains'
consent. Accordingly, all three agreed that this Court should decide the issue of
whether or not Hains consented to the work done by CWS and Allied.
The Law Court has acknowledged that the question of consent is very
fact-specific and depends on the facts of each case. Id. at 207; 182 A.2d at 475 ("It
has been generally held that whether consent appears in any given case depends
wholly upon the facts in that case"). However, the Law Court has offered some
instruction for determining whether or not consent exists in the case of a lease,
stating:
The consent of the owners [landlord] must be inferred from the language of the lease, ... [the landlord's] knowledge of what was contemplated and was actually being done, and ... [the landlord's] conduct.
Fischbach & Moore, Inc. v. Presteel Corp., 398 A.2d 397, 400 (Me. 1979), quoting
Maxim v. Thibault, 124 Me. 201, 203, 126 A. 869, 871 (1924) (brackets in original).
5 In the instant case, the lease explicitly states that Waterview shall
construct a building on the Subject Parcel or the base rent price will increase.
Moreover, Hains had knowledge that work was occurring at the Subject Parcel
and that that work was being done by CWS and Allied, although it is undisputed
that Hains had no role in choosing either CWS or Allied to work on the project.
While Hains is correct that neither CWS nor Allied included him in their
discussions with Waterview concerning the project nor were they required to
provide him with updated materials concerning the project, Hains attended six
meetings before the Planning Board at which the project was discussed and he
obtained materials available to the public during those meetings. In fact, Hains
even made a suggestion at one meeting that the placement of a proposed
driveway be moved, which shows that he was familiar with the plans for
construction at the property. Hains also admitted that he saw some construction
being done at the Subject Parcel and that a sign was posted on the property that
stated that construction was being done by Allied and that CWS was the
architect for the project.
Hains argues that any information he learned about the condominium
project at the Planning Board meetings cannot be considered by this Court
because Hains attended those meetings solely in his capacity as a "concerned
citizen of Portland" as he has done for the past twenty years and not because he
was an interested person. The Court rejects this argument because Hains did
know the nature and extent of work that was contemplated and was actually
being done on his property by both CWS and Allied. Contrary to Hains'
argument, knowledge cannot be compartmentalized and it is clear that
regardless of whether Hains gained knowledge of CWS's and Allied's work as an
6 interested party or merely as a concerned citizen, he knew about the work being
done and did not object.
Hains' conduct justified CWS's and Allied's belief that he consented to the
work being done. Indeed, there were six separate meetings of the Planning
Board at which members of the public could comment on the proposed
condominium project. That Hains recognized this is evident in the fact that he
actually made public comments on separate occasions at these meetings,
including suggesting a modification of a driveway layout. Moreover, Hains
admitted that he witnessed construction occurring at the Subject Parcel yet he
never objected in any respect to the work being done.
The Court rejects Hains' argument that by the time he had knowledge of
CWS's work in Fall 2004 (when CWS first appeared before the Planning Board),
much of CWS's work had already been completed and, therefore, Hains could
not have consented to CWS's work. The evidence shows that CWS's work was
ongoing until at least September 2005 (when final project approval was obtained)
and Hains knew of the revisions, modifications and additions in CWS's work
because he was present at the six Planning Board meetings held in 2004 through
2005. Moreover, Hains never objected to any of CWS's work even after he had
knowledge of what work had been done. Nor did the work of CWS and Allied
go beyond that known and expected by Hains when he agreed to the lease terms
with Waterview. Indeed, the lease expressly states that Waterview was to
construct a building on the Subject Parcel or else Waterview's monthly rent
would increase; Hains admitted that he was aware that Waterview planned some
sort of housing or condominium building. Thus, any attempt to limit the scope
7 of Hains' knowledge and consent to the work done by CWS and Allied IS
rejected by this Court.
Based on the express language of the lease, Hains' knowledge of the work
to be done and the work occurring at the property, and his conduct, Hains did
consent to CWS and Allied furnishing labor and materials for the condominium
project that included the Subject Parcel. Accordingly, CWS's, Allied's and White
Brothers, Inc.'s Motions for Summary Judgment are granted in part on the issue
of Hains' consent.
B. Value of the Mechanics' Lien
The Law Court has stated that "[w]hen, as here, the owner is not party to
the contract, the determination must be as to what is the fair and reasonable
value of the labor and materials in place. In what amount has the property been
enhanced by the labor and materials furnished?" Bangor Roofing, 151 Me. 145,
148, 116 A.2d 664, 666 (1955). The Law Court has further stated that this
"determination is primarily one of fact." Id. at 150, 116 A.2d at 667. This rule
sterns from the cornerstone of mechanics' lien law, which is "the prevention of
unconscionable and unjust enrichment." Id. at 148; 116 A.2d at 666. Thus, "[a]
lien is given upon the ground that the work has been a benefit to the realty, and
has enhanced its value." Id.
In Bangor Roofing, a subcontractor supplied labor and materials for the
construction of a school building. Bangor Roofing, 151 Me. at 146, 116 A.2d at 665.
With its complaint, the subcontractor attached an itemized list of labor and
materials that represented its actual cost for those items and the subcontract
price. Id. at 146-47, 116 A.2d at 665. The Law Court, however, held that because
there was no express contract between the subcontractor and the property
8 owner, the subcontractor was not automatically entitled to its subcontract price.
[d. at 148-49, 116 A.2d at 666. The Law Court stated:
When by express contract the parties fix the compensation to be paid for full and complete performance of the contract, they have themselves established the debt to be secured by lien... [but where] the owner is not party to the contract, the determination must be as to what is the fair and reasonable value of the labor and materials in place ... Where, as here, the subcontractor has a fixed price contract with another contractor who stands between him and the owner, we think the price agreed upon represents a ceiling upon this fair and reasonable price, and it would be inequitable to permit a lien in excess of the subcontract price. But where the fair and reasonable value appears to be less than the subcontract price, the latter must yield to the former in submission to the test as to the extent the property has been enhanced. A subcontractor then cannot assume that he has a lien for the amount of his subcontract in all cases, but he may rely upon the lien security to protect the payment contracted for provided the fair value of what he furnishes at least equals that amount.
Id. The Law Court also rejected the argument that the value of any lien should
be determined by actual costs as opposed to fair and reasonable value. [d. at 151,
116 A.2d at 667 ("Defendants cite no case holding that actual costs are the
measure of lien rather than fair and reasonable value").
The Law Court again held that fair and reasonable value is the measure of
a mechanics' lien when there is no contract in Pendleton v. Sard, 297 A.2d 889 (Me.
1972), stating:
As to the dollar amount to be secured by lien, the fair and reasonable value of the lienable items necessarily had to be determined by evidence. Although the parties may by contract fix in advance what this fair and reasonable value of the items in place will be, no such contract was proven in this case. Thus it became proper to introduce evidence bearing on the question, "In what amount has the property been enhanced by the labor and materials furnished ?"
Pendleton, 297 A.2d at 891, quoting Bangor Roofing, 151 Me. at 148, 116 A.2d at
666. The Law Court further stated:
9 The general rule almost universally followed was well stated in 53 Am.Jur.2d 932, Mechanics' Liens, Sec. 418 in these terms: * * * it is generally recognized - apart from unjust enrichment * * * that subcontractors and materialmen have no right to a personal judgment against the owner when there is no contractual relation between them.
Id. at 893 (ellipses and emphasis in original).
It is undisputed that Hains was not a signatory to either the CWS or the
Allied contracts. Thus, in determining the amount of CWS's and Allied's liens
against the Subject Parcel, this Court must determine the fair and reasonable
value of each CWS's and Allied's work on the property. The parties, however,
disagree as to what constitutes the "property." Hains argues that the Court
should only consider the value and benefit to his lot alone. CWS and Allied, on
the other hand, argue that the Court must determine value as to the entire
condominium project, which they describe as a unified project. CWS and Allied
allege, and there is no evidence to the contrary, that they did not allocate or
apportion their work between Hains' lot and the lots owned by Waterview.
Maine law offers no guidance on this issue. The law of other jurisdictions
likewise offers no bright line for determining the scope of "property." Compare
W.H. Dail Plumbing, Inc. v. Roger Baker and Associates, Inc., 308 S.E.2d 452, 454
(N.C. Ct. App. 1983) ("It would be grossly inequitable to allow a blanket lien
holder to enforce the entire lien against one unit of a multi-unit condominium
project. Each unit shall be liable only for its proportionate share ...") with Menzel
v. Tubbs, 53 N.W. 653, 654 (Minn. 1892) {"What the word 'lot' in the lien statute
means has been several times considered by this court, and it has always been
10 held that it is not synonymous with city lot or platted lot, but that it may include
more and may include less than a lot as platted").
However, several states have established a rule that a blanket mechanics'
lien imposed on severally owned lots is appropriate only when apportionment is
not possible or practical. See, e.g., Compass Bank v. The Brickman Group, Ltd., 107
P.3d 955, 958 (Colo. 2005) (Colorado law permits "a single lien claim against all
such buildings, structures, or other improvements (together with the ground
upon which they are situated), if the cost or value of the labor or materials cannot
be readily and definitely apportioned; and in that case, all of the improvements
are deemed one improvement, and the land on which they are situated, one tract
of land"); Northwest Fed'l Savings & Loan v. Tiffany Construction Co., 761 P.2d 174,
177 (Ariz. Ct. App. 1988) (I/Courts are more likely to uphold a blanket lien if the
labor or materials are supplied under a lump-sum contract and not allocated
among buildings or lots, if the materials are delivered to a general construction
site and not to individual buildings and lots, and if the buildings are intended for
a common purpose and located upon contiguous lots ...A blanket lien is
appropriate when a laborer or materialman is unable to allocate his
improvements among the particular buildings or lots"); Addington-Beaman
Lumber Company, Inc. v. Lincoln Savings and Loan Ass'n, 403 S.E.2d 688, 690 (Va.
1991) (I/[U]nder certain circumstances, a joint and blanket lien is valid and the
lien claimant has no duty to apportion in the memorandum the amount of the
lien. Such circumstances exist when there is a single contract for the entire work
to be performed on the subject property as a whole, and there are no provisions
in the agreement allocating a specific portion of the contract price to any
individual lot. .. Under the circumstances of this case, the mechanic or supplier
11 had the duty to apportion the amounts due among the several lots benefited, the
evidence establishing that the materials furnished have added disproportionate
values to the individuallots").
For purposes of this case, the Court adopts the rule that a blanket
mechanics' lien is available only when the lienor cannot apportion or allocate the
goods or services he has provided. Accordingly, this Court must deny CWS's
and Allied's Motions for Summary Judgment because there is a genuine issue of
material fact as to whether it is possible for either or both to apportion the work
performed between the Subject Parcel and the lots owned by Waterview. If
apportionment is not possible, the trier of fact must determine the value of each
CWS's and Allied's work to the entire condominium project. If apportionment is
possible, the trier of fact must determine the value of the work done to Hains'
property alone. Thus, there remain two factual determinations in this case: first,
whether apportionment is possible; and, second, the extent to which the
property, either the Subject Parcel alone or the combined lots constituting the
condominium project, has been enhanced by the labor and materials furnished
by CWS and Allied.
Therefore, the entry is:
Plaintiffs Curtis Walter Stewart Architects', Allied/Cook Construction Corporation's and White Brothers, Inc.'s Motions for Summary Judgment are GRANTED IN PART and DENIED IN PART. The Motions are granted as to the issue of Hains' knowledge and consent to their work and denied as to the determination of the value of the lien that can be imposed on Hains' property.
Defendant Robert Hains' Motion for Summary Judgment IS DENIED.
12 The clerk shall incorporate this Order into the docket by reference
m pursuant to M.R. Civ. P. 79(a).
Dated at Portland, Maine this 'l&f'"'. day of ,2008,
~ R'obert E. Crowley Justice, Superior Court
13 CURTIS WALTER STEWART ARCHITECTS - PLAINTIFF SUPERIOR COURT CUMBERLAND, 55. Attorney for: CURTIS WALTER STEWART ARCHITECTS Docket No PORSC-RE-2006-00056 JOHN HOBSON - RETAINED 03/13/2006 PERKINS THOMPSON HINKLEY & KEDDY ONE CANAL PLAZA DOCKET RECORD PO BOX 426 PORTLAND ME 04112-0426
V5 WATERVIEW DEVELOPMENT II CORP (RE-06-07) - DEFENDANT JEFFREY COHEN - DEFENDANT
Attorney for: JEFFREY COHEN DAVID RAY - RETAINED 06/06/2006 BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029
WATERVIEW DEVELOPMENT LLC - DEFENDANT
Attorney for: WATERVIEW DEVELOPMENT LLC DAVID RAY - RETAINED 06/06/2006 BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029
ROBERT CHAINS - DEFENDANT
Attorney for: ROBERT CHAINS DEBORAH MANN - RETAINED 06/21/2006 JENSEN BAIRD ET AL 10 FREE STREET PO BOX 4510 PORTLAND ME 04112
BECKER STRUCTURAL ENGINEERS INC - PARTIES IN INTEREST NORWAY SAVINGS BANK - PARTIES IN INTEREST
Attorney for: NORWAY SAVINGS BANK MICHAEL HILL - RETAINED 05/09/2006 MONAGHAN LEAHY LLP 95 EXCHANGE ST PO BOX 7046 PORTLAND ME 04112-7046
NORMAN G. COHEN INC - PARTIES IN INTEREST
Attorney for: NORMAN G. COHEN INC DAVID RAY - RETAINED OS/23/2006 BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST PO BOX 9729 Page 1 of 13 Printed on: 01/30/2008 PORSC-RE-2006-00056 DOCKET RECORD
PORTLAND ME 04104-5029
WHITE BROTHERS INC - PARTIES IN INTEREST
Attorney for: WHITE BROTHERS INC DAVID PERKINS - RETAINED 05/17/2006 PERKINS OLSON PA 30 MILK STREET PO BOX 449 PORTLAND ME 04112-0449
ALLIED/COOK CONSTRUCTION CORP(PLTF RE-06-07} - PARTIES IN INTEREST
Attorney for: ALLIED/COOK CONSTRUCTION CORP(PLTF RE-06-07} MICHAEL TRAISTER - RETAINED OS/26/2006 MURRAY PLUMB & MURRAY 75 PEARL STREET PO BOX 9785 PORTLAND ME 04104-5085
THE CITY OF PORTLAND - PARTIES IN INTEREST
Attorney for: THE CITY OF PORTLAND PENNY LITTELL - RETAINED 05/10/2006 CITY OF PORTLAND 389 CONGRESS STREET PORTLAND ME 04101
Filing Document: COMPLAINT Minor Case Type: MECHANICS LIENS Filing Date: 03/10/2006
Docket Events: 03/10/2006 FILING DOCUMENT - COMPLAINT FILED ON 03/10/2006 WITH EXHIBIT 1 AND SUMMARY SHEET. AD
03/13/2006 Party(s}: CURTIS WALTER STEWART ARCHITECTS ATTORNEY - RETAINED ENTERED ON 03/13/2006 Plaintiff's Attorney: JOHN HOBSON
04/26/2006 CERTIFY/NOTIFICATION - CLERK CERTIFICATE ISSUED ON 04/19/2006 ORIGINAL ATTESTED CLERKS CERTIFICATE MAILED TO ANDREW CADOT, ESQ. ON THIS DATE; COpy IN FILE; NO COpy GIVEN TO CUMBERLAND COUNTY REGISTRY OF DEEDS (JBG).
05/08/2006 Party(s}: CURTIS WALTER STEWART ARCHITECTS SUMMONS/SERVICE - ACCEPTANCE OF SERVICE FILED ON 05/08/2006
05/08/2006 party(s}: CURTIS WALTER STEWART ARCHITECTS SUMMONS/SERVICE - ACCEPTANCE OF SERVICE SERVED ON 05/04/2006 UPON NORWAY SAVINGS BANK TO MICHAEL H. HILL ESQ (GM)
05/09/2006 Party(s): NORWAY SAVINGS BANK RESPONSIVE PLEADING - ANSWER FILED ON 05/09/2006 Page 2 of 13 Printed on: 01/30/2008