Grinnell v. Bedford Falls Assocs.

• Court: Superior Court of Maine
• Decided: June 1, 2009
• Docket: CUMre-08-017
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO.: RE-P8-J]17 'rpo III pJ;'C . l- LlJI '- l7!.',· ./f/';'''() ! SIMPLEX GRINNELL, LUl v..:N '- I A 8: Sb

Party-in-Interestl Cross-claim Plaintiff ORDER ON ALL v. PENDING MOTIONS

BEDFORD FALLS ASSOCIATES, LLC, Defendant

AND

OCEAN BANK, FSB, HOME LOAN INVESTMENT BANK, FSB, FOUR BROTHERS CORPORATION, ALAN EGER ELECTRIC, INC., AND PORT CITY GLASS COMPANY, INC., Parties-in-Interest

Before the Court are Parties-in-Interest Ocean Bank, FSB and Home Loan

Investment Bank, FSB's motion to dismiss Cross-claim Plaintiff Simplex Grinnell's

Amended Cross-Claim pursuant to M.R. Civ. P. 12(b)(6) and their motion for summary

judgment pursuant to M.R. Civ. P. 56.

BACKGROUND

On January 22, 2008, Plaintiff Alan Eger Electric, Inc. ("Eger") filed a five-count

complaint, naming Ocean Bank, FSB ("Ocean Bank") and Home Loan Investment Bank,

FSB ("Home Loan") as parties-in-interest to Eger's mechanic's lien claim. On March 7,

2008, Simplex Grinnell filed a four-count cross-claim against Bedford Falls Associates,

LLC ("Bedford Falls"), Ocean Bank and Home Loan. Simplex Grinnell did not name

Ocean Bank and Home Loan as defendants on any of the counts, but named them only

as parties-in-interest for its mechanic's lien claim. On June 6, 2008, Simplex Grinnell

sought leave from the Court to file an Amended Cross-Claim, adding Port City Glass

Company, Inc. ("Port City") as a party-in-interest. The Court granted this motion. On June 17, 2008, Ocean Bank and Home Loan filed an Answer to the Amended

Cross-Claim. On July 2,2008, Port City filed an Answer to the Amended Cross-Claim.

Nei ther the defendant nor the other parties-in-interest filed answers.' As of July 7, 2008,

Eger's claims were either dismissed or otherwise fully resolved. Thus, only Cross-

Claim Plaintiff Simplex Grinnell's claims remain.

DISCUSSION

I. Motion to Amend

On January 26, 2009, Simplex Grinnell moved for leave to file a Second Amended

Cross-Claim pursuant to M.R. Civ. P. 15(a). The Seconded Amended Cross-Claim

included additional allegations against Ocean Bank and Home Loan. Specifically,

Simplex Grinnell sought to include these parties-in-interest in its allegation that the

work it performed was done with the knowledge and consent of these entities, in

addition to the knowledge and consent of Defendant Bedford Falls. On February 20,

2009, Ocean Bank and Home Loan filed an opposition to this motion. On February 25,

2009, the Court issued the following Order:

Motion to amend will be granted provided Simplex Grinnell further amends to allege compliance with Mechanic's Lien Statute on or before March 16, 2009. Otherwise motion to amend is Denied.

The Clerk of Court docketed this Order in the usual course. 2 To date, Simplex

Grinnell has not filed a revised Second Amended Cross-Claim. By operation of Simplex

Grinnell's failure to file an amendment to its second amended complaint its motion was

denied. See Order dated Feb. 25, 2009. Nevertheless, the Court takes this opportunity

to further to analyze the substance of Simplex Grinnell's Motion to Amend.

I This is contrary to Simplex Grinnell's assertion that "none" ofthe parties-in-interest nor the defendant filed an

answer. M. Amend. ~ 2 (filed Jan. 28, 2009). 2 The Court held a trial management conference on May 11,2009. At this hearing, counsel for Simplex Grinnell had no recollection of receiving this Order.

2 In the interests of finality and judicial economy, the court should rule on a

motion to amend before the court considers a dispositive motion, such as a motion to

dismiss or a motion for summary judgment. Sherbert v. Remmel, 2006 ME 116, err 8, 908

A.2d 622,624; Kelly v. Michaud's Ins. Agency, 651 A.2d 345, 346 (Me. 1994). A "party

may amend the party's pleading once as a matter of course at any time before a

responsive pleading is served." M.R. Civ. P. 15(a). "Otherwise a party may amend the

party's pleading only by leave of court or by written consent of the adverse party." Id.

The court shall freely grant a motion to amend "when justice so requires." M.R.

Civ. P. 15(a). This rule should be "liberally applied to achieve the purpose set forth in

Rule 1: the 'just, speedy and inexpensive determination of every action.'" Bangor Motor

Co. v. Chapman, 452 A.2d 389, 392 (Me. 1982). The Court may deny a motion to amend

for a number of reasons. For instance, "the court may deny a motion to amend if it is

untimely filed or filed for delay." Sherbert, 2006 ME 116,

"[a] court does not abuse its discretion when it denies a motion for leave to amend when

the moving party fails to show how it could cure the complaint ...." Id. (alteration in

original).

In the instant case, Cross-Claim Plaintiff's stated reason for its motion to amend

is to cure a "clerical error" in failing to allege that Parties-in-Interest Ocean Bank and

Home Loan had knowledge and consent of the work it performed at the Bedford Falls

property. As pointed out by Ocean Bank and Home Loan in their opposition, this

amendment, by itself, does not cure the defects in Simplex Grinnell's Second Amended

Cross-Claim Complaint. The mechanic's lien statute ("the Act"), 10 M.R.S. §§ 3201-3269

(2008), provides the necessary procedure for a claimant to properly perfect a mechanic's

lien. "Because the origin of the materialmen's lien is statutory and was unknown at

common law, every jurisdictional requirement must be met and all conditions

3 precedent as prescribed by statute must be complied with, before the lienor can prevail.

In other words, the lienor must bring himself within the statute." T.A. Napolita1lo

Electrical Contractors, Inc. v. Direnzo, 602 A.2d 1149, 1150 (Me. 1992) (quoting Pineland

Lumber Co. v. Robinson, 382 A.2d 33, 36 (Me. 1978)).

The Act provides relief to lien claimants who furnish labor, materials, or services

pursuant to a contract with an owner of property or with the owner's consent. 3 10

M.R.S. § 3251. It provides more protections for owners if the lien claim is based on the

owner's consent, rather than contract. 4 For example, if the lien claim is based on the

owner's alleged consent, the owner may prevent the lien by giving written notice to the

lien claimant. Id. § 3252:' Also, a lien claimant must file the details of the lien with the

registry of deeds and provide a copy of this filing to all allegedly consenting owners. Id.

§ 3253(l)(A)-(B). A failure to do so is fatal to a claim based on consent because the lien

is automatically dissolved after ninety days. Id. § 3253. 6

3 For purposes of the Act, a mortgagee is considered an owner. Gagnon's Hardware & Furniture v. Michaud, 1998 ME 265, '16, n 1 A.2d 193, 194. 4 Simplex Grinnell conceded at the trial management conference that it did not contract with either Ocean Hank or

Home Loan for the improvements made to the Bedford Falls property. As such, Simplex Grinnell was statutorily obligated to file a lien notice in the registry of deeds and provide a copy of the notice to these mortgagees. See 10 M.R.S. §§ 3252-53. 5 "If the labor, materials or services were not furnished by a contract with the owner of the property affected, the owner may prevent such lien for labor, materials or services not then performed or furnished, by giving written notice to the person performing or furnishing the same that he will not be responsible therefor." 10 M.R.S. § 3252. 6 Specifically, Section 3253 states:

I. FILING OF CLAIM. The lien under section 3252 is dissolved unless the claimant, within 90 days after ceasing to labor, furnish materials or perform services: 1\. Files in the office of the register of deeds in the county or registry district in which the building, wharfor pier is situated a true statement of the amount due the claimant, with aJJ just credits given, together with a description of the property intended to be covered by the lien sufficiently accurate to identify it and the names of the owners, if known. The statement must be subscribed and sworn to by the person claiming the lien, or by someone in the claimant's behalf, and recorded in a book kept for that purpose by the register of deeds for the county or registry district, who is entitled to the same fees as for recording mortgages; and

B. Provides a copy of the statement under paragraph A to the owner or owners by ordinary mail. For purposes of this paragraph, a post office certificate of mailing the notice to the owner is conclusive proof of receipt by the owner. 2. EXEMPTION FOR CONTRACT WITH OWNER. This section does not apply when the labor, materials or services are furnished by a contract with the owner of the property affected.

4 The Act specifically addresses pleading requirements. ld. § 3257. Specifically,

Section 3257 states, in relevant part:

The complaint shall state that the plaintiff claims a lien on the house, building or appurtenances... and the land on which it stands, for labor or services performed or for labor, materials or services furnished, in erecting, altering, moving or repairing said house, building or appurtenances...; whether it was by virtue of a contract with or by consent of the owner, and if not, that the claimant has complied with section 3253. The complaint shall pray that the property be sold and the proceeds applied to the discharge of such lien.... Any mortgagee or other person having a claim upon, or interested legally or equitably in, said property may be made a party. The court shall have power to determine all questions of priority of lien or interest, if any, between parties to the proceeding.

ld.

By the Act's plain language, the allegations in the complaint must 1) claim a lien

on a structure and/ or land with a degree of specificity; 2) it must state whether the

services rendered were pursuant to a contract with the owner or with the owner's

consent; and 3) the claimant must affirmatively state that it complied with the notice

procedures of section 3253. 7 [d. Although Simplex Grinnell's motion to amend

addressed the issue of Ocean Bank and Home Loan's knowledge and consent to its

work, it failed to address how its amendment to the Complaint would cure the defects

regarding the statutorily required notice. Nor did Simplex Grinnell provide this

information to the Court after its February 25, 2009 Order. s Accordingly, the Court

7 This provision is nol, however, without ambiguity. The phrase "whether it was by virtue of a contract with or by consent of the owner, and ifnot, that the claimant has complied with section 3253" is somewhat inconsistent with terms of section 3253(2), which states that the notice requirements of section 3253 "docs not apply when the labor, materials or services are furnished by a contract with the owner of the property affected." 10 M.R.S. § 3253(2). Nevertheless, the plain meaning of the statute, combined with the agreement by the parties that section 3253 applies, leads to the necessary conclusion that Simplex Grinnell was statutorily obligated to make an affirmative statement of compliance with section 3253 in its complaint. Moreover, on February 25, 2009, the Court exercised appropriate judicial discretion in requiring Simplex Grinnell to make such a statement because without it the Second Amended Complaint was not cured of plead ing defects sufficient to survive a motion to d ism iss. See Sherbert, 2006 ME ] 16, '1! 8,908 A.2d at 624. It is undisputed that Simplex Grinnell did not and has not done so. g Simplex Grinnell's counsel contends that she did not receive this Order. All other counsel at the trial management

conference represented that they had, in fact, received the Order. Nevertheless, counsel for Ocean Bank and Home

5 denies Simplex Grinnell's motion to amend the pleadings pursuant to M.R. Civ. P.

15(a). Given this, the First Amended Cross-Claim is the operative complaint considered

in the parties-in-interests' motion to dismiss and their motion for summary judgment.

n. Motion to Dismiss

A. Standard of Review

A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal sufficiency of the

complaint and, on such a challenge, 'the material allegations of the complaint must be taken as

admitted."' Shaw v. Southern Aroostook Comm. Selz. Dist., 683 A.2d 502,503 (Me. 1996) (quoting

McAfce v. Cole, 637 A.2d 463, 465 (Me.1994)). When reviewing a molion to dismiss, this Court

examines "the complaint in the light most favorable to the plaintiff to determine whether it

sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief

pursuant to some legal theory." [d. A dismissal under M.R. Civ. P. 12(b)(6) will be granted

only "when it appears beyond a doubt that the plaintiff is entitled to no relief under any setof

facts that he might prove in support of his claim." [d. (quoting Hall v. Bd. of Envtl. Prot., 498

A.2d 260, 266 (Me. 1985)). This is a question of law. Bean v. Cummings, 2008 ME 18,

ME 18, 939 A.2d 676, 679.

Loan not only mentioned the Order in their March 30, 2009 motion to dismiss/motion for summary judgment but also discussed it extensively. M. Dism iss at 2-3. [n Simplex Grinnell's opposition, counsel merely stated she "is unaware of any Orders requiring any further amendment." Opp. at 2. Simplex Grinnell's counsel filed the motion to amend more than two months before the motion to dismiss/motion for summary judgment presently before the Court. If counsel did not receive the Order then the motion to amend would, to her knowledge, still have been outstanding. It was incumbent upon counsel to inquire into either the status of the motion to amend or the suhstance of an Order that was, at least according to opposing counsel, fatal to Simplex Grinnell's mechanic's lien claim.

6 B. Amended Cross-Claim

A mechanic's lien is a creature of statute. Direnzo, 602 A.2d at 1150. The Act is

"construed and applied liberally to further their equity and efficacy, when it is clear that

the lien has been honestly earned, and the lien claimant is within the statute." Twin

Island Dev. Corp. v. Wincllester, 512 A.2d 319, 323 (Me. 1986) (internal quotation omitted).

Nevertheless, the Law Court requires fairly strict adherence to the Act's requirements in

an effort to serve the dual purposes of the Act: "afford security to mechanics and

provide notice to owners and purchasers of potential claims." HCI Corp. v. Voikos

Constr. Co., 581 A.2d 795, 798 (Me. 1990). For example, in Lyon v. Dunn, a materialman

was precluded from enforcing a mechanic's lien when he failed to file the statutorily

required notice. 402 A.2d 461, 466 (Me. 1979); But see Winchester, 512 A.2d at 323

(holding that the 120 day requirement for filing the complaint need not be explicitly

pled, but the Law Court speci fically noted that this relaxed interpretation would not

necessarily apply with respect to notice requirements).

As discussed above, a lien claimant must allege an owner's consent to the work9

and affirmatively state that it complied with the notice requirements of section 3253.

Simplex Grinnell did neither. Thus, it cannot recover pursuant to any legal theory on

the present pleadings. lo Having failed to state a claim against either Ocean Bank or

Home Loan, the Court grants their motion to dismiss pursuant to M.R. Civ. P. 12(b)(6).

With no viable claim properly before the Court, Ocean Bank and Home Loan's motion

for summary judgment is moot.

9 Simplex Grinnell, as evidenced by its Illotion to amend, admits that these allegations are necessary for a viable mechanic's lien claim. 10 Simplex Grinnell did not assert any other claims against Ocean Bank and/or Home Loan beyond the mechanic's

lien claim.

7 Therefore the entry is:

Parties-in-Interest Ocean Bank, FSB and Home Loan Investment Bank, FSB's

motion to dismiss is GRANTED. Ocean Bank, FSB and Home Loan Invesbnent Bank,

FSB's motion for summary judgment is DIS.MISSED as moot. It is hereby ORDERED

that Simplex Grinnell's Amended Cross-Claim against Ocean Bank, FSB and Home

Loan Invesbnent Bank, FSB be DISMISSED.

/~r- Dated at Portland, Maine this ! day of ,2009.

R¢bert E. Crowley Justice, Superior Court

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