Moore v. Tablada

708 P.2d 140, 68 Haw. 228

• Court: Hawaii Supreme Court
• Decided: November 4, 1985
• Docket: NO. 10499; M.L. NO. 84-0014
• Status: Published

Opinions

OPINION OF THE COURT BY

PADGETT, J.

This is an appeal from an order dismissing an application for a mechanic’s and materialman’s lien and the denial of a reconsideration thereof. We affirm.

On October 12, 1984, appellant filed an application for a mechanic’s and materialman’s lien to attach to a residential lot in Kailua, Oahu, owned by the appellees. Appellant claimed that appellees owed the principal amount of $22,757.59 to it for labor and materials furnished in connection with the construction of a residence on the property. The notice accompanying the application fixed the date of hearing as Thursday, November 15, 1984. Appellees were served on October 19. On November 9, 1984, the appellees moved to dismiss the application citing H RS § 507-43 which provides in part: “The Application and Notice shall be returnable not less than three nor more than ten days after service.” This motion was granted.

Appellant contends that the language in question, while mandatory on its face, should be construed as being directory only. The parties have been unable to point to anything in the legislative history of the act adopting the provision in question, Act 113, S.L.H. 1974 which is significant on the issue of whether the provision in question is directory or mandatory. As appellees point out, the 1974 amendment was necessary to satisfy the due process decisions of the United States Supreme Court in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

David W. Proudfoot (Stephen D. Whittaker and Jeffrey E. Brunton on the briefs, Case, Kay & Lynch of counsel) for appellant. Arthur S.K. Fong for appellees.

Historically this court has strictly construed the procedural requirements of the mechanic’s and materialman’s liens law, while liberally construing the remedial portions thereof. Hawaii Carpenters’ Trust Funds v. Ahloe Development Corp., 63 Haw. 566, 572-73, 633 P.2d 1106, 1110 (1981); Lewers & Cooke, Ltd. v. Wong Wong, 22 Haw. 765, 768 (1915). We are here dealing with a procedural requirement.

Appellant cites Jack Endo Electric, Inc. v. Lear Siegler, Inc., 59 Haw. 612, 585 P.2d 1265 (1978). However, that case is distinguishable on its facts. There the lien claimant gave notice of lien only to the lessee and the contractor, because, as this court noted, the claimant was not concerned with affecting the lessor’s interest in either the improvements or the fee. The circuit court dismissed because no notice had been given to the lessor. This court reversed, but in so doing, noted:

In the instant case, since the notice of lien failed to name and was not served upon the fee owner of the property, the lien will not attach to any interest of the fee owner in either the improvements or the real property upon which the improvements were situated.

Id. at 617, 585 P.2d at 1270. In our case, appellant’s procedural failure directly affected the fee owners’ (appellees) interests.

We hold that the provision in question, being procedural in nature is, as its plain language indicates, mandatory.¹ Affirmed.

1 It is incumbent upon the attorney for a lien applicant to obtain a return date which falls within the period fixed by the statute. The statute contains ample provision for continuances by order of the court if that becomes necessary.