Opinion
13-P-1999
11-14-2014
NATIONAL LUMBER COMPANY v. KUN ZHAO & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
National Lumber Company (National) appeals from a judgment on a directed verdict dismissing its action to enforce a mechanic's lien against the property owned by the defendants, Kun Zhao and Ying Ding (collectively, defendants). At issue is whether certain departures from the strict requirements of G. L. c. 254 are fatal to National's claim. The facts are undisputed.
Statutory requirements set forth in G. L. c. 254, § 4, as amended by St. 1996, c. 364, § 5, and G. L. c. 254, § 8, as amended by St. 1996, c. 364, § 9, are at issue here. National filed a notice of contract with an incorrect property address, identifying the defendants' property as 119 West Ridge Trail; the correct address is 19 West Ridge Trail. National repeated this error in its sworn statement of claim, which was filed after the return to National of its incorrectly addressed certified mailings of the notice of contract with the notation "unclaimed." National did not itself provide actual notice to either of the defendants, who own the property as tenants by the entirety.
National asserts that its failures to adhere to the strict requirements of the statutes are not fatal to its lien because, in these circumstances, the defendants and affected third parties nevertheless received actual notice of the claim. We are unpersuaded by this approach.
The legislative scheme underlying c. 254 is one that obviates the need for case-by-case inquiry; it generally favors contractors and subcontractors by relieving them of the burden associated with protracted litigation and recovery of judgments after their services and materials have benefited landowners. In return, the statute requires strict observance of notice and deadline requirements calculated to ensure that all affected parties have an opportunity to determine the extent of claims and safeguard competing interests as allowed by law. See Hammill-McCormick Assocs., Inc. v. New England Tel. & Tel. Co., 399 Mass. 541, 543-544 (1987); Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 642 (2002); Golden v. General Builders Supply LLC, 441 Mass. 652, 654-655 (2004). See also National Lumber Co. v. LeFrancois Constr. Corp., 430 Mass. 663, 668-669 (2000) (change of title to property after filing of lien does not undermine requirement of "accurate system for recording and identifying encumbrances"); National Lumber Co. v. United Cas. & Sur. Ins. Co., 440 Mass. 723, 728 (2004) (statutory design ensures that search of records of registry of deeds allows determination with certainty of amount due).
We therefore consider National's reliance on cases involving deviation from notice requirements in other statutes unavailing. See, e.g., Cinder Prods. Corp. v. Schena Constr. Co., 22 Mass. App. Ct. 927, 929 (1986) (actual delivery of written notice of claim on contractor's bond under G. L. c. 149 excuses failure to use certified mail). We also are unpersuaded by National's reliance on National Lumber Co. v. Lombardi, 64 Mass. App. Ct. 490, 492-496 (2005), a case in which the supplier observed all statutory requirements but the registry of deeds failed to record the complaint for a thirty-five-day period. National also relies on Valentine Lumber & Supply Co. v. Thibeault, 333 Mass. 352, 358-359 (1955), which, unlike the present case, falls squarely within the provisions of G. L. c. 254, § 11, where a credit was not properly applied to the amount stated as due.
We note that Valentine, supra, does not present a case in which a third party claimed reliance on a notice of claim in which the debt was understated. In that scenario, resulting equity available for other creditors would have been commensurately overstated resulting in futile efforts by creditors to avail themselves of attachments and other remedies.
In this case the notice of contract did not provide adequate notice of the property subject to attachment. The fact that the description attached to the notice of contract was accurate does not cure this defect, as attached documentation is not required under the statute and third parties are not presumed, much less mandated, to look for one.
National's failure to provide actual notice to the defendants as owners of record, tenants by the entirety who both participated in the contractual aspects of the project, is not cured by the fact that Zhao received notice from his lender. The circumstance that resulted in Zhao's being informed of the lien by a third party did not relieve National of its statutory obligation to provide him with actual notice. "The lien is a creature of the statute, and can be enforced only by strict compliance with the statute." Hammill-McCormick Assocs., Inc., supra. Furthermore, receipt of actual notice by Zhao cannot be imputed to the other owner of the property. See Webber Lumber & Supply Co. v. Erickson, 216 Mass. 81, 82 (1913). See also Warren Bros. Co. v. Peerless Ins. Co., 8 Mass. App. Ct. 719, 723 (1979) (owner of affected property must be given copy of notice of contract).
In light of our conclusion we do not address the defendants' contention that the contract under which National seeks to assert a claim does not meet the conditions for the imposition of a lien under G. L. c. 254, § 4. In any event, the contract was executed by the parties to be charged, the defendants themselves.
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We decline to exercise our discretion to award appellate costs or attorney's fees. See Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979).
Judgment affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
Clerk Entered: November 14, 2014.