Ridge Heating, Air Conditioning & Plumbing, Inc. v. Brennen

HEATING, RIDGE AIR CONDITIONING PLUMBING,

AND INC. v. BRENNEN,

Robert et ux. S. Term, 2763, Sept.

No. 1999. Special Appeals Maryland. Court 13, 2000.

Nov. brief), Boozer, P.A., on (Covahey DiPaula & Anthony J. Towson, appellant. for (Brown, LLP, Kearney, Kearney Diffenderffer &

J. Mitchell Baltimore, brief)-, appellees. for on the DAVIS, KENNEY, THIEME and JJ. before Argued DAVIS, Judge. 30,1998, Ridge Heating, Air appellant Condi- September

On Plumbing, Complaint Inc. tioning filed two-count appellees and Enforce a Mechanics’ Lien Establish P. Bremen the Circuit Robert S. Bremen Elizabeth 5, 1998, circuit County. On Court for Baltimore October J.) (Cadigan, court issued an to appel- Order Show Cause inquiring why lees the lien in the should amount claimed attach appellees’ property. Appellees filed a An- Verified 22,1998, swer on denying October liability grounds on the they were not general contractor, indebted to their Timber- (Timberwood). wood Construction

At the show hearing cause on November parties agreed, by Order, Consent that the matter should be course, set trial normal pursuant Maryland Rule 304(e)(2)(E), and that no final lien would be entered at that stage of proceedings. Following discovery, appellees filed Summary Motion for Judgment on May Appellant 1999. filed its Answer and Memorandum in Opposition to Motion for Summary Judgment.

On December the circuit court Opinion issued its granting Order appellees’ motion for summary judgment judgment entered appellees favor of against appel- Appellant lant. timely filed this appeal, presenting ques- one tion, rephrase which we as follows:

Did the trial court err in applying § Real Property 9- 104(f)(3) of Maryland Code, limiting Annotated an own- liability er’s to a subcontractor performs who on work single owner’s family dwelling?

For the reasons forth set below appellant’s we answer question in negative and affirm judgment of the trial court.

FACTUAL BACKGROUND In December appellant contracted with Timberwood to furnish and heating install and air conditioning systems and to furnish and perform requisite work, plumbing part as of the overall construction of an addition to appellees’ residential Mills, home Owings Maryland. The contract between Tim- berwood and appellees provided that Timberwood would com- plete job by April appellees and that pay would progress payments, contract, set forth in totaling $153,085. 3, 1998 project August on be-

Timberwood abandonеd difficulties, with breaching appel- financial its contract cause of $9,000 for a substi- additional costs of Appellees lees. incurred improvements to complete contractor the unfinished tute a lawsuit Although appellant brought home. their invoices, appellant outstanding on its Timberwood collect appellees’ additionally sought impose mechanics’ lien it contract. for the amount owed under the Timberwood home Timberwood, had contracting appellant Prior to with least with and was aware of eight other contracts Timberwood history. Appellant’s records indicate Timberwood’s of payable appellant that Timberwood had accounts over ninety days past due. (1999 Repl.Vol., that

The trial court found Md.Code (R.P.) 9—104(f)(3) case, in this applies Supp.), Prop. Real appellees to subcontractor. Addi- limiting liability dispute trial ho as to tionally, the court found there was appellant prove appellees fact any material failed Therefore, appellees were were indebted Timberwood. enti- grant summary judgment. to a tled

LEGAL ANALYSIS 9—104(f)(3) that R.P. should not Appellant contends only to apply applies in this because the subsection new case family dwellings, improvements, not to construction additions, existing Appellees or renovations homes. contend construction of legislature that the did not intend narrow 9—104(f)(3) exception” §R.P. when it enаcted “residential liens; rather, applies to all home to mechanics’ statute solely being newly and not constructed. owners homes 9—104(f)(3) require- Property § Real refers to the notice provide initiating that a must when ments property: mechanics’ lien on an owner’s notice; (f) Payments by limita- owner contractor after dwellings.— against tion on lien certain this (3) section any provision other Notwithstanding single contrary, of the subcontractor the lien for land of the owner on the family dwelling being erected by which the amount shall not exceed his own residence at the time the contract is indebted under the the owner given. notice is 9-102(a) of its con- support § on R.P.

Appellant relies subject to a mеchan- may all be that not construction tention ics’ lien: rebuilt every building repaired,

Every building erected of its value is percent of 15 improved to the extent with this of a in accordance subject to establishment lien debts, regard to the of all without subtitle for the building amount, work for or about the contracted for done building, includ- for or about the and for materials furnished ing— the distinction legislature specifically

Because the included 9-102(a) “every “every building §R.P. erected” between appellant argues that building repaired, improved,” rebuilt or distinction in would have the same legislature included 9—104(f)(3) improvements R.P. if it had intended excep- in the residential existing homes were to be included 9—104(f)(3)reads, Instead, R.P. “a tion. fаmily dwelling being erected on the land single added.) The (Emphasis for his own residence.” section [or her] existing buildings to be language regarding contain does not “repaired, improved.” rebuilt

Although lien statute was enacted the mechanics’ upon proof of and materialmen 1976 to subcontractors v. Met nonpayment, generally, see Johnson performance (holding that a contractor 209 Md. calfe, performed); Ridge may amounts due based on work recover Morrell, Metal v. Sheet Co. (1986), “protect in 1982 to the law was amended liability. v. family dwelling” from Grubb

owner of a Abbott, (1990). 84 Md.App. 579 A.2d 1185 As we Ridge, noted in the statute was enacted purpose limiting liability of of an to a [f]or performed subcontractor for work and materials rendered subcontractor on a dwelling erected on residence, land for the owner’s his own to the [or her] [prime] extent that the owner has rendered contractor.... 370, (citing

Ridge, 1982 Md. 251, 1,1982). July Laws effective Grubb, Subsequently, accept we declined ‍​​​‌​‌‌‌​‌‌​‌​‌​​‌​​​​​‌‌​‌‌​‌‌‌​​‌​‌​​​‌​​‌​‌​​‍to a narrow Grubb, “single family of dwelling.” generally definition See 393, Md.App. at 579 A.2d 1185. At issue was whether a lien could attach to a mechanics’ home when the owners were constructing separate apart- addition for use as an in-law 386, case, Id. at 579 A.2d 1185. In that ment. the owners made purpose “improve clear that the of construction was property and room for make mother at the [the owner’s] prime residence.” Id. at 579 A.2d 1185. contractor job contracted with Grubb Cоntractors to construct family addition onto the home. Id. at 579 A.2d 1185. subcontractor, prime When the contractor failed to pay the Grubb sent the owners notice of its intention to claim a lien, lien, pursuant mechanics’ to R.P. 9-104. Id. Grubb’s however, appealed, was denied the trial court and Grubb asserting that exemption apply the residential did not constructing family owners who were not a “single dwelling.” legislature’s designation Grubb’s contention was that the “single family dwelling” within the did not contemplate statute “independent dwelling” the inclusion of an addition or added property. onto owner’s Id. at 579 A.2d 1185. Grubb that, argued separate because the addition was a dwelling family intended for someone other than an immediate mеm- ber, qualify it could not for the promul- residential 9—104(f)(3). gated in R.P. disagreed, stating We seeking to protect the owner of a [legislature sought family by limiting their exposure potential liability residence to the lien as opposed protecting mechanic’s the commer- [sic] cial enterprise multiple family dwellings. of added.)

Grubb, at Md.App. (emphasis 579 A.2d 1185. Thus, legislative we concluded Grubb that the intent behind the was to draw a distinction com- between mercial and residential structures. Grubb,

Prior to we had that a had held subcontractor who paid by general not been the contractor could not establish mechanics’ lien of a owner payments prime because the owner owed no contractor at time pulled job the contractor out of the for financial Co., Ridge reasons. Sheet Metal 9—104(3)(f)

1133. The behind R.P. was to shift risk from loss the owner of a dwelling to the subcontractor. Id. at Ridge, concerning 517 A.2d 1133. In statute, legislative undergirding explained: intent we Turning legislative intent, glean pream- we from the chapter quoted previously ble that the Legislature intended in limited situations to the risk loss shift from owner family dwelling the subcontractor. chapter enactment 9-114 under 251 in 1982 [R.P.] further Legislature’s evidences the intent ameliorate liability. This owner new section indicates the burden for negligent paying will no longer be borne the owner. Section 9-114 states:

(a) At payment the time of settlement or in full between a owner, contractor and an give the contractor shall a signed supplier release of lien frоm each material provided subcontractor who work or materials under the contract.

(b) An subject owner is not to a lien and is not otherwise any liable for work or materials included the release (a) under subsection of this section. that subcon- responsibility insuring provision

This shifts contrac- away prime from the owner to the paid tractors are tor. added). (emphasis

Id. fairness, we argument as to Addressing the subcontractor’s follows: reasoned as appellees that unless we determine

Appellant asserts established, can be the subcontrac- and a lien are “indebted” impecunious prime contractor from the unprotected tor is otherwise uses the rather who and then breaches due over to the subcontractor. Were paying portion than interpretation that an unenforcea- accept appellant’s towe to “indebtedness” under the con- amounted obligation ble despite tract, would be liable to subcontractors owners still they paid over all monies were they fact that have contract, fact despite under the obligated pay against go contractor could not back them prime that the interpretation not limit the retainage. This does for the it. liability but instead extends owner’s Moreover, can risk of loss in subcontractor best bear the clearly who is in the is of situation. One trade type this to know whether the contrac- рosition than owner better financially position. payments in a unstable Late tor is rumors in better materialmen and the trade áre other easily or are discoverable known to the subcontractor more Increasing the than the homeowner. the subcontractor risk double prospective of the house

may dampen well the enthusiasm builder.... 374-75,

Id. at 517 A.2d 1133. financial position is in the best to avoid considering who

loss, said: we against

Additionally, subcontractor can itself A.I.A. easily under the contract. The standard very loss judice provided sub in the case contract used joint payee checks to right shall have the issue “[o]wner or materialmen as and such other subcontractors Contractor may necessary Owner deem in Owner’s sole discretion.” if it Appellant, anticipated suspected trouble or the contrac- measure, instability preventive tor of financial or as a could requested payable have the owner to issue progress checks prime to both the contractor and it for the work it did. Single family dwelling owners object have little reason to requests joint when that it be named payee for work request done since such a forestalls the possibility of a mechanic’s against lien levied their [sic] Thus, property. despite it is appellant’s protestations, not necessarily unprotected the impecunious contractor. from Moreover, unpaid subcontractor may always s%dt file against prime contractor to recover mollies due for 9-111, performed. work Section to 1982 and force still in effect, contemplates such a situation by providing

(n)othing this right any person, subtitle affects the any whom debt is due for work done or fur- material nished, to any personal maintain action the owner building any person other liable for the debt. Finally, contrary characterization, to appellant’s appellees unjustly were enriched presented. based the facts It appropriate appellees paid infer that to the contractor last progress payment the amount appel- allocable to lant for the work it performed percent. less 20 Appellees required would bе to pay twice for the work done should they have to pay appellant now or should a lien in full amount be established. conclusion, we hold the owners were indebted under

the contract when the notice of to claim intent a lien was given, Hence, nor they ‍​​​‌​‌‌‌​‌‌​‌​‌​​‌​​​​​‌‌​‌‌​‌‌‌​​‌​‌​​​‌​​‌​‌​​‍unjustly were enriched. the subcon- tractor’s lien must fail. 375-77, added).

Id. at 517 (emphasis A.2d 1133 Similarly, held, Appeals the Court of in Reisterstown Lum- Tsao, (1990), ber Co. v. that, 319 Md. 574 A.2d 307 con- liberally be statute “should mechanics’ lien although the 9—104(f)(3) claimants,” § was R.P. in favor of lien strued Reisterstown Court statute. The created as 9—104(f)(3) § was to purpose of R.P. that the clear held payment to family dwelling from double single of a the owner A.2d 307. Id. at and subcontractor. the contractor R.P. exception in directly purpose of the Speaking Reisterstown, explained: 9-104, Appeals, § the Court with the residential particularly concerned But we are here current statute Ch. was added to the exception which is to purpose That clear exception’s Acts of 1982. of the family “single of a the owner payment double protect from land for his own on the owner’s dwelling being erected ... residence.” (f)(3), balance, potential the limit of the establishes per

That property of the owner imposed upon can lien which be lien cannot exceed The subcontractor’s a “residence.” In that way owner to the contractor. due amount receipt of payment. double On protected can be from owner is entitled intent to claim lien the the notice of to the. contractor “the payments from future draw withhold ascertains to be due the amount the owner 9-104(f)(l). If subcontractor estab- giving the notice.” lien, for the hen may take credit the owner lishes 9-104(f)(2). account with contractor. resolving the how much lien on the residence issue here is not The §in Thus, specified 9- time of the notice may be. 104(f) controlling.... is not is “a applies only where the construction special rule on the owner’s land family dwelling being erected on the could double produce own residence”

his the Tsaos. part of added). 628-31, (emphasis

Id. that, has “at no time asserts its brief Although appellant whether court been asked determine Maryland appellate 9-104(f)(3) hold- applies improvements,” home § R.P. consistently Appeals have of this and the Court ings Court

257 9—104(f)(8) exception construed the residential of R.P. in the Reisterstown, homeowner’s favor. generally See 319 Md. at 628, 307; Grubb, 392, 1185; 574 A.2d 84 Md.App. at 375, Ridge, Md.App. at Appellant A.2d 1133. would interpret have this Court as distinguishing statute be- tween the construction of improvements new homes and made to existing According to appellant, homes. the statute’s refer- only “single family ence dwelling being erected” should be interpreted as excluding repairs improvements existing homes. not persuaded by appellant’s We are interpre- narrow tation legislature of the statute or that the intended a distinc- tion of single family dwellings between new construction improvements single family dwellings.

Contrary argument, to appellant’s of any the absence lan- guage regarding repairs statute or improvements does countermand the in protecting concerns the home- owner. Our decisions have reiterated the distinction legislature made in enacting the exception residential was a distinction buildings between commercial dwellings, rather than newly between built existing homes and Grubb, (“... homes. See [legislature sought ... family opposed as protecting the commercial enterprise multiple family dwell- ings.”). decision, Grubb is instructive in our because there the building owner was improvement likewise or addition to his existing family Grubb, holding however, home. Our ad- dressed “single whether the term family dwelling” would include apartment so, the addition of an in-law and if whether separate construction of a dwelling on property was 9-104(0(3). covered the residential of R.P. See id. at 579 A.2d 1185. We determined that the “[owners’] home, improved, meets ‘single [the] definition of a family dwelling’ purposes of the Mechanic’s [sic] Lien Law.” Id. at 579 A.2d 1185. simply There is no plausible rationale to support Grubb, a distinction between in- which volved improvement of a residence the addition of an apartment, case, in-law and the instant which also involves an addition to personal of appellees. residence minority’s Ridge support Sheet Metal Co. reliance original purpose of the mechanics’ lien argument

its the is protect to and matеrialmen overrid- law was subcontractors 9—104(f)(3) §R.P. by underlying the considerations den Grubb, with the status of specifically which dealt embraced an exception as to the mechanics’ lien statute. See the statute Gntbb, Lumber, In Md. at A.2d 307. Reisterstown by affixing apart- an in-law expanding that a house we held exception to lien to it would fall under the the mechanics’ ment law; distinguish is no construction of an there reason to something apart- than an in-law that results in other addition evolved, on issue have appellate As decisions this ment. emerged have more defini- policies behind the statute likewise (1) single family an a tively: protection of owner of dwelling from to the and subcontrac- payment primary double (2) Grubb, tor; limiting аs stated in and this Court to potential liability of an residence of exposure owner’s as to commercial enter- opposed protecting lien mechanics’ dwellings. argument advanced multiple family The prise of minority interprets “single family narrowly phrase being dwelling erected.” family interpreted “single dwelling” recently

Since we have apartment to of in-law include construction Grubb Reisterstown, that Appeals, has determined the Court not to move erected on his one who later decides into home covered, pellucidly, is these property or her nevertheless intent that interpretation legislative evince an decisions 9-104ffl(3) as distinguishing §R.P. is to be read between the owner, opposed drawing homeowner the commercial is a distinction between whether exception mechan- being “erected” “remodeled.” statute, view, protect was the owner ics’ lien in our enacted home, kind of regardless of the construction conducted his or her residence. position judice, appellant

In case in a better sub was a financially was in appellees than know Timberwood fact, knew, position. appellant In of Timberwood’s unstable history, as it had several con- payment particular, previously, noted “the As we have Timberwood. tracts with easily under very loss itself can 1133. Armed Ridge, the contract.” history, financial knowledge of Timberwood’s appеllant’s with requesting ap- its interest protected could have appellant both to Timberwood payable progress checks pellees to issue and this Moreover, Appeals the Court appellant. purpose” that “the clear consistently underscored Court have homeowner by the is to avoid double of the owner of a of loss from the and to shift the risk 374-75, 517 A.2d 1133. Id. at the subcontractor. dwelling to land of on the sum, likely “being erected it is more was intended his own residence” the owner for 9-104(f)(3) inapplicable agree- clear that R.P. make i.e., “owner,” than the residential someone other ments when prime with the contrac- who contracts the commercial builder against tor, plаcement to of a lien holds title to the land sure, lien, contemplation, is legal the property. To be the notwithstanding that the family dwelling,” “single the rebuilding involved the claim is for labor or material Clearly, the addition improvement existing structures. minority As the “on land of the owner.” this case was the out, how to “Obviously, legislature understands points existing new and any linguistic distinctions between eliminate ” case, divining an intent to being That construction.... construction and “erection” distinguish between new plausible than the existing addition to an structure is less remodeling, and re- improvements, home difference between from construction and build- pairs contradistinguished as new legislature could ing Significantly, on an have addition. or self-contained units expressly excluded additions “erected” on the land of the existing improvements to “erected added that the intent for his own residence” had been [or owner her] underlying legislation. the enactment of the 1982 amendment was to purpose

The stated behind the exposure personal limit residences protect family subjecting to avoid enterprises, as opposed commercial liability payment, homeowners to for double and to shift the subcontractor, risk of loss from the homeowner who is position protect by requiring in a better that itself agree progress to authorize the draw payable to both prime Additionally, Ridge subcontractor. Metal Sheet out, points generаl is more familiar with the contractor’s financial circumstances and better able to ascer- collapse tain when financial quote imminent. To a maxim in jurisprudence, equitable per- “Whenever one of two innocent third, sons must suffer the acts of a he who has enabled person such third to occasion the loss must sustain it.” Busey Reese, (1873). v. 38 Md. 264 Maryland

The 1982 amendment case law continue to pronounce the stated that subcontractors and material- however, protected; men be that rationale the homeowner general must bear the loss contractor when becomes insol- paying without vent his her subcontractors because the supplanted by homeowner received thе benefits has been subcontractors, requirement providing when labor or construction, materials residential simple precautions take interest, their being general the net result contractors would not projects be able “kite” their periods extended and fewer subcontractors and owners would “holding bag,” general be left because contractors who are Metal, impecunious simply Finally, would fold. in Ridge Sheet pointed we out that R.P. 9-104 did right not affect the personal maintain a against anyone, action including the owner contractor, case, prime or the in which put the claimant is its of proving liability burden the for debt. The merely prohibits of encumbrance the residence with a mеchan- ics’ lien. reasons, foregoing

For the § in R.P. 9- 104(f)(3) narrowly should not be so as to construed be incon with sistent considerations behind the homeowner’s We, therefore, exception. appellant hold that cannot establish against a appellees’ single family lien for home the materials and performed furnished work and that trial court did not

261 liability 9—104(f)(3),limiting appellees’ §R.P. applying err lien. petition for mechanics’ appellant’s denying BALTI- FOR THE CIRCUIT COURT OF JUDGMENT AFFIRMED. MORE COUNTY BY APPELLANT. BE PAID TO

COSTS KENNEY, by J. Dissenting Opinion KENNEY, Judge, dissenting. ‍​​​‌​‌‌‌​‌‌​‌​‌​​‌​​​​​‌‌​‌‌​‌‌‌​​‌​‌​​​‌​​‌​‌​​‍policies within competing involves the collision

This case those who adopted protect law that was the mechanics’ lien Abrams, v. Riley in construction. labor and materials furnish (1980). legislature 348, 357, 412 A.2d 996 In 287 Md. (1974, § Supp.), 9- Repl.Vol., 1982 adopted Md.Code 104(f)(3) (“R.P.”), provided: which Property of the Real Article of this section

Notwithstanding any provision other contrary, the lien of the subcontractor the oumer being erected on the land family dwelling amount which the residence shall not exceed the his own time the notice under the contract at the owner is indebted [Emphasis given. added.] Tsao, Md. In Lumber v. Reisterstown Co. (1990), recognized that the clear Appeals

A.2d 307 the Court of 9-104(f)(3) purpose is “to from double being erected on the owner of ‘a ” Property 9- owner’s land for his own residence.’ Real mind, 104(f)(3) and, my appropriately liberally has been carry perceived legislative out construed our courts however, in acknowledged, Ridge This Sheet intent. Court Morrell, 364, 369, 517 A.2d 1133 Metal v. Co. (1986) that, although significant change in the law occurred “still to be construed the mechanics’ lien statute is suppliers.” favor mechanics Reisterstown, who was confronted with owners Court

decided, construction, dwelling occupy not to because after They ulti- cemetery. of a decided proximity of its view the Court occupy dwelling. question before mately 262 dwelling being being

was whether the erected was still erected they their residence after decided not to live the house. problem Acknowledging presented was of limited scope, in Reisterstown language the Court focused on the “for §in his own residence” found 9-104 and held that whether the building is intended to be the owner’s residence is determined as of thе time when the subcontractor commences an other- substantially for, uninterrupted performance wise of work or to, Reisterstown, sells contractor. materials 319 Md. at 630-31, 574 A.2d 307. Reisterstown involved new construction. Abbott, majority

The finds Md.App. Grubb Contractors v. 84 384, (1990), “instructive,” majority opinion 579 A.2d 1185 be 12, it, too, home, at because involved an addition to an existing but that was the issue decided in Grubb. The Grubb “single family decision focused what constitutes a dwell- ing.” question presented was whether inclusion permanent Mrs. Abbot’s as a mother resident of the dwelling with her own kitchen resulted in two occupying families dwelling, rendering longer it no a single family dwelling. We concluded that the Abbott household remained “a fami- Grubb, ly, single dwelling.” 393, with a Md.App. 1185. Metal, Ridge

Grubb looked to Sheet involving case indebtedness, guidance issue of as to legislative intent. recently, Drywall More in Best v. Berry, (1996), we construed the term “residence” also to include vacation home. Both Ridge Sheet Metal and Best involved Drywall new construction.

It appears directly no case has decided the issue now before us: Is there a distinction to be made between new remodeling improving construction and an existing dwelling 9-104(f)(3)? application in the always, goal As our is to aim, general statute, purpose, determine the of and, although not to plain we are be enslaved meaning rule, starting point always our is of the statute. (1992). Tracey v. 328 Md. Tracey, A.2d 590 In our it analysis, important to examine the statute as а whole to legislative Admin., divine the v. Hyle intent. Motor Vehicle (1997) (“In Md. 702 interpreting A.2d statute, whole, Appeals Court of construes statute as inter- preting provision in each of statute context of entire the scheme.”) statutory statute,

In reviewing the I following provisions, find the emphasized, instructive: (1974,

[Maryland Ann. Repl.Vol.)] Prop- Code 9-102 erty subject to lien.

(a) Buildings.—Every building erected and build- every rebuilt, ing repaired, or improved to the of 25 extent percent of subject its value is to establishment of a lien in debts, accordance with this subtitle for the of all amount, regard without to the for work contracted done for building or about the and for materials for furnished or about building, including drilling and installation of water, to supply wells the construction or installation any of swimming pool or fencing, sodding, seeding planting or shrubs, trees, or about premises any plants, or nursery products, flowers grading, filling, landscap- ing, and paving premises, of the leasing equip- ment, with or operator, without an for use for or about the building premises. or

(c) Machines, wharves, machine, bridges.—Any wharf, erected, constructed, bridge or repaired within the may subjected State be to a lien the same manner as a building subjected to a lien in accordance with this subtitle.

(d) Exemptions.—However, a building or the land on which the building may is erected subjected be to a lien if, under this subtitle establishment a lien subtitle, accordance with this legal title has granted been purchaser a bona fide for value. lien;

§ 9-104. requirement Notice for form (a) lien.—(1) Notice entitle required subcontractor ‍​​​‌​‌‌‌​‌‌​‌​‌​​‌​​​​​‌‌​‌‌​‌‌‌​​‌​‌​​​‌​​‌​‌​​‍ A subcontractor doing work or furnishing or both materials family dwelling than a building

for or about other residence is owner’s land his own erected on the being for unless, within 120 to a lien under this subtitle not entitled materials, furnishing days doing the work or after an intention to claim a gives written notice of subcontractor (b) specified form in subsection substantially lien this section.

(2) furnishing materials or doing A work being erected on both or about a for own residence is not entitled to land his owner’s unless, days doing within 120 after lien under this subtitle furnishing materials for or about work or of an gives written notice inten- dwelling, the subcontractor (a)(1) of in accordance with subsection tion to claim lien payment has not made full this section the owner receiving the notice. contractor

v ^{[*] [*]} (f)(3) Notwithstanding any of this section provision other against a contrary, the lien of the subcontractor on the land dwelling being erected amount his own residence shall not exceed the owner for is indebted under the contract the time which the owner given. the notice is executory in contracts. provisions

§ Prohibited 9-113. ' (a) executory a contrac- In contract between general.—An construction, that is related to any tor and alteration, structure, or repair building, improve- or aof not subcontractor to waive may require ment waive or to: right (1) lien; or Claim a mechаnics’ (2) on a contractor’s bond. Sue (b) to subcontractor on conditioning payment Provisions provision executory in an con- contractor.—A payment of a contractor and a subcontractor is tract between alteration, construction, or repair building, related to structure, payment and that conditions improvement or receipt by the contractor of the subcontractor any party may abrogate from or third the owner other or to: right waive the of the subcontractor

(1) lien; Claim mechanics’

(2) on a contractor’s bond. Sue

(c) provision of a contract made provisions.—Any Void public violation of this section is void as this State. lien, § to a 9- describing property subjected that can be 102(a) “every building “every refers to and to build- erected” ”

ing repaired, improved.... rebuilt or The value of the labor “building materials is not an issue the case of a erected.” It is material to a lien attach in the case of a whether will 9-102(c), repair, rebuilding improvement. or an on the Section hand, machines, other makes no distinction the case of Moreover, bridges. exemption wharves and created 9-102(d) bona purchasers fide value also makes no distinction existing between new construction and buildings long building subject pursuant so to a lien 9-102(a). §to 9-104, language the section which the limitation found, repeatedly

under review is out an carves buildings generally between and “a

being erected on the owner’s land for his residence.” own added.) (Emphasis language closely This tracks the 9-102(a) me, §of implies, applies and to it to new 9-104(f)(3) If § construction. intent was not to limit to new construction, purpose “being there was no to the words erect- ed.” Those words could from provision be excised protect generally the owners of residences simi- larly to broad protection given purchasers to bona fide 9-102(d). exemption § value in not to interpret We are clause, sentence, in a statute manner that would render a or phrase “surplusage, superfluous, meaningless, nugatory.” or (1996) State v. Pagano, 341 Md. 669 A.2d 1339 Buckman, (quoting Montgomery County v. 333 Md. (1994)).

636 A.2d 448 slate, writing might agree on a clean I that the Were we policy interpretation mаjority appropriate is an reached difficult, however, ignore repeated I it policy. find language in this that reinforces a distinction statute improvements. and Because between new construction home interpret a limitation to a statute being we are asked claimants, designed protect interpreted lien which is to be in favor of comprehensive in the most liberal and manner mechanics, carefully should our own admonition we heed Ridge: designed law was subcontractors and

Since the materialmen, that it Appeals repeatedly the Court of ruled interpreted comprehensive was to be the most liberal and Courts, however, had “no manner favor mechanics. cases, power beyond to extend the law to the obvious Although a designs plain requirements and of the statute.” significant change law in as Chief occurred recently repeated, interpreted it is still to Judge Gilbert be suppliers. in favor of mechanics and 369-370, (internal cita- Ridge, omitted). tions cases, could without preceding the statute be construed buildings language distinguishes

reference to between “being existing building being erected or and an erected” rebuilt, 9-104, repaired, improved. language § or both (a)(1) (2) provisions, in the notice and and in limitation (f)(3), consistently family to “a language refers dwelling being land for his own resi- erected the owner’s dence.”

Obviously, legislature any how to understands eliminate construсtion, linguistic existing distinctions between new 9-102(c) marine, wharf, (“any bridge § as demonstrated in or erected, 9-113 repaired”) constructed 9-113. Section contracts contractors and concerns between subcontractors construction, executory contracts “related to refers alteration, structure, repair building, of a or improvement.” 9-113(a) (b). clearly encompasses R.P. & That noted, It is improvements. construction and home both new also, contracts created 9-113 prohibition that the to a right their requiring or subcontractors waive waiving of the contrac- obligation or to make the mechanics’ lien even upon payment by the tor to subcontractor conditioned the contractor, subcon- reinforces a owner the in this appellant tractors such as case. a distinction? One possible for such

Are there reasons In actually Ridge. Court explanation suggested may be a explaining why person the trades better contrac- general position than owner know whether the Court reflected financially position, tor is in a unstable [increasing risk of double dampen the enthusiasm of the

dwelling may well This in turn would further de- prospective house builder. starts, in a slow housing particularly crease market. (emphasis supplied).

Ridge, Md.App. at ‘Tfjor those unfamiliar with The Court went on to note that housing industry, housing number of starts is used as year.” predictor coming Ridge, for market conditions for the added). (emphasis fn. creating existing than for owners of protection Rather homes, designed jump start legislation may have been encourage support housing new home construction matter, legislature industry. Perhaps, practical ‍​​​‌​‌‌‌​‌‌​‌​‌​​‌​​​​​‌‌​‌‌​‌‌‌​​‌​‌​​​‌​​‌​‌​​‍as a be- homes, existing likely lieved that owners of who are more may during greater be on site construction and who have utilized, personal knowledge being of the contractor do not require protection buyer. the same as the new home end, course, may simply legislative it be a matter of oversight imprecise drafting. Obviously, we cannot know for sure, necessary I but do not believe it to be we do. and, narrowly

I interpret would the limitation based on the statute, Therefore, I appellant. of the find for the respectfully dissent.

Case Details

Case Name: Ridge Heating, Air Conditioning & Plumbing, Inc. v. Brennen

Court Name: Court of Special Appeals of Maryland

Date Published: Nov 13, 2000

Citation: 762 A.2d 161

Docket Number: 2763, Sept. Term, 1999

Court Abbreviation: Md. Ct. Spec. App.