Arfaa v. Martino

BELL, Chief Judge. This mechanics’ lien case presents two issues for resolution: (1) whether the Petition for Mechanics’ Lien, filed by the respondent, Christopher Martino, d/b/a Do-It-All Construction Inc. (“Martino”), sufficiently, adequately and legally described and identified the building to be subjected to the lien, as required by Maryland Code (1974, 2003 Repl.Yol.) § 9-105 of the Real Property Article (“RP”), 1 so as to withstand the ³⁶⁷ motion to dismiss filed by the petitioners, Manoochehr and Dottie Ferris Arfaa (the “Arfaas”), the owners of the property, and (2) whether, pursuant to § RP § 9-103 and its implementing rule, Maryland Rule 12-308, when the building that is subject to a mechanics’ lien arguably is situated on more land than reasonably necessary for its use and enjoyment, the party seeking the mechanics’ lien has the burden of designating the boundaries of the land adjacent to the subject building that is “necessary for the ordinary and useful purposes of the building.” The Court of Special Appeals, in vacating the judgment of the trial court and remanding the case for further proceedings, Martino v. Arfaa, 169 Md.App. 692, 715 , 906 A.2d 945, 958 (2006), answered the former question in the affirmative, id. at 707 , 906 A.2d at 953 , and, although it was not presented directly, given its analysis of the issue and interpretation of the relevant statute and rule, id. at 708-715 , 906 A.2d at 954-58 , the latter in the negative. We agree and, therefore, we shall affirm the judgment of the intermediate appellate court. This case began with Martino filing, in the Circuit Court for Harford County, a petition to establish a mechanics’ lien on “the property located at 2310 Cullum Road, Bel Air Maryland 21015-6539.” The property located at 2310 Cullum Road, in Bel Air, Harford County, Maryland 21015-6539, its street and mailing address, is owned by the petitioners.

On that property, which consists of 73.77 acres of land, is situated their residence, which, according to a print-out from the Maryland ³⁶⁸ State Department of Assessments and Taxation (“SDAT”), is a two-story brick building built in 1920, having 4,552 square feet of enclosed space and is the primary structure on the property- I. On August 21, 2002, the Arfaas’ residence suffered significant fire damage. As a result, the Arfaas hired Belfor USA Group, Inc. (“Belfor”) to manage repairs and renovations to the residence. Belfor, as general contractor, contracted with Keith Parker Construction Company (“Parker”) to perform the repair and renovation work. 2 Parker, in turn, subcontracted with Martino’s company for the performance of a substantial portion of the repair and renovation work. Martino’s company performed approximately nine weeks of work on the Arfaas’ residence pursuant to the contract, which, according to the petition for mechanics’ lien filed by Martino, “included extensive demolition work, reconstruction of numerous walls and rooms, framing of windows, framing of doorways, hallways, framing of chimney, construction of walls, installation of roof trusses, furring of hardwood floors, install[ation of] sub-flooring, construction of exterior walls, construction of dormers, installation of skylights, etc.” Martino submitted invoices to Parker for $93,145 for that work and materials, but was paid only $23,650, leaving an unpaid balance of $69,495.

As required by RP § 9-104, 3 Martino timely, by posting on the property, served the Arfaas with a notice of intention to ³⁶⁹ claim a lien for the amount of the unpaid invoices, $69, 495. To that notice, he attached copies of the invoices he had sent to “Keith Parker Construction.” Largely identical, except for the week number and the amount claimed to be due, the invoices read: “This is an invoice for week [number] of demolition and rehabilitations on Dr. ARFAA’s [sic] Home! There is a list of things that were done this past week, and the amount for the invoice. The amount for this invoice is [amount].

See pages attached!” ³⁷⁰ Within 180 days after the last day on which Martino performed work, Martino filed, as required by RP § 9-105(a), his petition to establish a mechanics’ lien. The petition, in pertinent part, averred: “NOW COMES the petition, Christopher Martino, d/b/a Do-It-All Construction, Inc .... and hereby petitions the Court to establish a mechanics’ lien on the property located at 2310 Cullum Road, Bel Air, Maryland 21015, pursuant to Md.Code Real Property, § 9-105 (2003). In support of this petition, the Petitioner hereby avers that the following facts are true to the best of his knowledge: “1. The property located in Harford County at 2310 Cullum Road, Bel Air, Maryland 21015-6539 is owned by Dr. Manoochehr Arfaa and Mrs. Dottie Arfaa (hereinafter referred to as “the Arfaas”).

(See Exhibit A [the print-out from the records of SDAT]). “2. This property is further identified as Map 57, Grid 2E, Parcel 50 by the Maryland Department of Taxation and Assessments. (Id.). “3. The property owned by the Arfaas is under renovation as a result of an insurance loss.... “7.

Work was completed by [appellee] on or about July 18, 2003, and this Petition is timely filed in accordance with Md.Code, Real Property, § 9-105 (2003). “10. The work performed by [appellee] included extensive demolition work, reconstruction of numerous walls and rooms, framing of windows, framing of doorways, hallways, framing of chimney, construction of walls, installation of roof ³⁷¹ trusses, furring of hardwood floors, installed subflooring, construction of exterior walls, construction of dormers, installation of skylights, etc. (See Exhibit B; see also Exhibit C, Photographs of work in progress). “12. A copy of the Notice to Owner or Owner’s Agent of Intention to Claim an [sic] Lien ... is attached hereto as Exhibit B. Additionally, evidence of the service by certified mail on the named property owner is included in Exhibit B. Additionally, a copy of the Notice was posted on the property in accordance with Md.Code, Real Property, § 9-104 (2003).... WHEREFORE, Petitioner respectfully requests that this Court impose a mechanics’ lien in the amount of $69,495.00 on the property located at 2310 Cullum Road, Bel Air, Maryland 21015-6539 located in Harford County, Maryland.

Martino attached to the petition, as exhibits, (1) the Maryland SDAT record describing the property; (2) Martino’s affidavit; (3) Martino’s notice, to the Arfaas, of his intention to claim a lien; (4) construction notes, invoices and change orders; and (5) 141 photocopies of photographs of the Arfaa residence at various states of construction, from different angles and showing unique architectural features, e.g., columns, of the subject building. In their answer to Martino’s petition, the Arfaas stated that they had paid Belfor for the work claimed by Martino as subcontractor. The Arfaas also emphasized in their answer that their sole contractual relationship was with Belfor, and, therefore, expressly denied that they had any liability for monies owed to its subeontractor(s). The Arfaas, too, attached to their answer numerous exhibits, 4 addressing, however, their contractual relationship with Belfor. ³⁷² On the day of the hearing set by the Circuit Court, pursuant to RP § 9-106(a) 5 for the Arfaas to show cause why a lien should not attach to the property described in Martino’s petition, but before the hearing commenced, the Arfaas, hand-delivered to Martino a sworn “Amended Answer to Petition for Mechanics’ Lien.” In that amended answer, in pertinent part, they asserted: “Neither the Petitioner’s Notice or Petition describe the building upon which they desire a Mechanics’ Lien, but merely state they want a Mechanic’ [s] Lien on the property at 2310 Cullum Road, Bel Air, Maryland 21015.

The Arfaa[s’] property consists of 73+ acres and contains three separate buildings. The Petition must be dismissed as a matter of law because ... it fails on its face to describe the building or buildings and its location on the property.” After hearing argument on the legal issues, the Circuit Court held the matter sub cuña. The Circuit Court subsequently issued a written memorandum and order that dismissed Martino’s petition. The court found that, in contravention of RP § 9-105, Martino’s petition failed to identify adequately the building upon which the lien was sought.

Crediting the allegation made by the Arfaas in ³⁷³ their amended answer, that there were two additional buildings on their property at 2310 Cullum Road, the court reasoned that none of the exhibits attached to the petition, including invoices, and photographs, “describe[d] the building upon which the work was performed in a manner sufficient to identify a specific building.” Noting that the only reference to a specific building on the property was contained in a statement in the affidavit of service of the notice of intention to claim a lien, i.e., that it was served on “the door of the residence located at 2310 Cullum Road[,]” (emphasis added), the court concluded: “[i]t is not clear from the pleadings which of the three buildings on the property qualifies as a ‘residence’ of the [Arfaas] [,]” and consequently, that the petition was “facially defective.” 6 Having determined that Martino failed to include a “description adequate to identify the building,” as required by RP § 9-105(a)(l)(iv), the Circuit Court entered final judgment in favor of the Arfaas. Martino timely noted an appeal to the Court of Special Appeals. The Court of Special Appeals held that the Circuit Court erred in dismissing Martino’s Petition for Mechanics’ Lien for failing adequately to describe the building to which the lien would attach, as required by RP § 9-105(a)(l)(iv). Martino, 169 Md.App. at 706 , 906 A.2d at 953 .

Unlike the trial court, it did not credit the Arfaas’ explicit and implicit assertions in their amended answer that there is more than one building on the property-two more, in fact, than the Martino petition identified-, that the work might have been done on any one of them and that the building to which Martino referred, and the accompanying exhibits, could have applied to either of them. As to the assertion that three buildings are on the property, the intermediate appellate court observed: “The Arfaas’ reference in their answer to ‘three separate buildings’ on the property was a red herring. The Arfaas never described the other two buildings, never asserted that there are three ‘houses’ at 2310 Cullum Road, and never ³⁷⁴ asserted that more than one building on their property-resembled in any way the structure shown in 141 photographs. That structure was a distinctive, large home, with large columns on one facade.

Given the fact that the Arfaas’ property was referred to as ‘agricultural’ on the SDAT print-out, the other two buildings may well have been a barn and a storage shed. (And [therefore,] the structure shown in the 141 photographs could not be confused with such ancillary buildings)____” Id. at 708 , 906 A.2d at 954 . Moreover, the Court of Special Appeals was not persuaded that including in the petition for lien alleged excess acreage was a sufficient basis on which to hold that Martino’s claim to a lien was deficient, never mind to dismiss his petition. It explained: “[T]he Arfaas’ emphasis of the fact that their lot was on a 73 + acre parcel was not a sufficient reason for the circuit court to deny the lien altogether.

Even though the lien statute still refers to establishing a lien against the ‘building,’ there is generally no separate registration of title for building improvements in Maryland (notable exceptions being condominiums and time shares), and the transfer of ownership of a house such as the Arfaas’ is generally effected by a conveyance of title to the underlying land. Accordingly, a conveyance of the Arfaas’ house would normally be accomplished by a deed conveying the same 73 + acre parcel they purchased in 1985 ‘together with the improvements thereon.’ ” Id. at 708-09 , 906 A.2d at 954 . In that regard, the intermediate appellate court gave great weight to the remedial nature of mechanics’ lien law. Id., at 706-09 , 906 A.2d at 953-54 .

It also interpreted RP § 9-103 7 ³⁷⁵ and Maryland Rule 12-308, 8 which implements it, as giving to the owners of large parcels of land on which is situated a building potentially subject to mechanics’ liens the option to designate the boundaries of the land to which any such lien would attach. Id. at 709-10, 906 A.2d at 954-55 . Accordingly, the Court of Special Appeals vacated the judgment of the Circuit Court 9 and remanded the case for further proceed ³⁷⁶ ings, not inconsistent with its opinion. Id. at 715 , 906 A.2d at 958 .

As indicated, we granted the Arfaas’ petition for writ of certiorari to address the questions set forth infra. Arfaa v. Martino, 396 Md. 11 , 912 A.2d 648 (2006)(Table).

II

The Arfaas contend that Martino’s petition was deficient because it failed to identify adequately, as required by § RP 9-105(a)(l)(iv), their residence as the building on which Martino performed work and, therefore, on which his mechanics’ lien would attach. They point out that, on its face, the petition neither refers to a “residence” or “house,” nor identifies in which of the three buildings they allege to be situated on the property Martino performed the repair and renovation work for which he claims the lien. The Arfaas further contend that Martino’s petition was deficient as well by being too broad-it sought to attach a lien to the whole of the Arfaas’ 73.77 acres of land, rather than to a smaller portion, the land adjacent to the building on which the work was done, as RP § 9-103(a) requires. They maintain, in that regard, that, by suggesting, even if not holding, that the Arfaas, as the owners of the land, could, and, by implication, should, have designated the boundaries of the land to be subject to a mechanics’ lien under RP § 9-103(b), the Court of Special Appeals engaged in improper burden-shifting.

We disagree with respect to each of the Arfaas’ contentions. A. RP § 9-105 10 governs the initiation of mechanics’ lien proceedings. To commence proceedings to establish a mechanics’ ³⁷⁷ lien, the party seeking the lien must file with the clerk of the appropriate circuit court, a petition to establish the mechanics’ lien, along with that party’s affidavit as to the facts showing that party’s entitlement to the lien and “material papers or parts thereof, if any, which constitute the basis of the lien claim.” This Court has explained that, consistent with legislative intent, the mechanics’ lien law must be liberally construed in order to afford appropriate and ample protection to subcontractors. We made this point quite clear in Winkler v. Jerome, 355 Md. 231, 246-47 , 734 A.2d 212 (1999).

There, Judge Wilner, writing for the Court, stated: ³⁷⁸ “The mechanics’ lien law has historically been construed ‘in the most liberal and comprehensive manner in favor of mechanics’ and materialmen.’ T. Dan Kolker, Inc. v. Shure, 209 Md. 290, 296 , 121 A.2d 223, 226 (1956) and cases cited therein. Indeed, the law itself provides that it is remedial and is to be construed to give effect to its purpose. [RP] § 9-112. The need for a liberal construction is particularly important with respect to subcontractors who, though benefitting the owner and enhancing the value of the owner’s property by the provision of their labor or materials, have no direct contractual relationship with the owner and therefore cannot otherwise subject the owner’s property or assets to the payment of their claims. That bent of the statute in favor of subcontractors has always been subject to the caveat, however, that, as a mechanics’ lien was unknown at common law and is purely a creature of statute, it is ‘obtainable only if the requirements of the statute are complied with.’ Freeform Pools v. Strawbridge, 228 Md. 297, 301 , 179 A.2d 683, 685 (1962); Aviles v. Eshelman Elec.

Corp., 281 Md. 529, 536 , 379 A.2d 1227, 1231 (1977).” To be sure, the burden is on the lien claimant to establish entitlement to the lien and it is true that the owner bears no burden to negate that entitlement. Id. at 251-52, 734 A.2d at 223-24 . Winkler also makes clear, “... a lien is not created until it is established by a court, and it may not be established by a court, even on an interlocutory basis, absent a finding of probable cause made after the owner has an opportunity to object.” 11 Id. at 248 , 734 A.2d at 221-22 . We have, ³⁷⁹ however, been clear, mechanics’ lien law, nevertheless, must not be interpreted so as to make the burden on the claimant so onerous as effectively to cancel the remedy that the Legislature has provided.

Reisterstown Lumber v. Tsao, 319 Md. 623 , 574 A.2d 307 (1990). In light of the sometimes conflicting interests of owners in due process on the one hand, and of subcontractors in liberal protection on the other, we interpret RP § 9-105 in a manner that does not absolve the subcontractor of the duty to include in the petition, inter alia, an adequate description of the building to which a lien would attach. Simultaneously, however, we may not interpret RP § 9-105 in such a manner that the subcontractor’s burden is rendered so difficult, that the subcontractor is prevented from obtaining a mechanics’ lien. Martino contends that, when the petition is read in combination with and/or supplemented by the documents attached to it, an owner or a prospective creditor can identify the Arfaas’ residence as the building in which the work for which the lien is claimed was done and, therefore, to which the lien attaches.

We agree and hold that identifying in the petition the building to which to attach the lien, the Arfaas’ residence, by its mailing address (with both a street number and 9-digit zip code), is sufficient to withstand the Arfaas’ motion to dismiss. The standard of review of a motion to dismiss is well-settled. We recently reiterated it: ³⁸⁰ “Upon review of a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, a court must ‘assume the truth of all well-pleaded facts and allegations in the complaint, as well as all inferences that can reasonably be drawn from them,’ Morris v. Osmose Wood Preserving, 340 Md. 519, 531 , 667 A.2d 624, 630 (1995), and order dismissal only if the allegations and permissible inferences, if true, would not afford relief to the plaintiff, i.e., the allegations do not state a cause of action. A.J. Decoster Co. v. Westinghouse, 333 Md. 245, 249 , 634 A.2d 1330, 1332 (1994).

See also Sharrow v. State Farm Mutual Auto. Ins. Co., 306 Md. 754, 768 , 511 A.2d 492, 499-500 (1986), in which we stated the rule as follows: ‘[I]n considering the legal sufficiency of [a] complaint to allege a cause of action for tortious interference, we must assume the truth of all relevant and material facts that are well pleaded and all inferences which can be reasonably drawn from those pleadings.’ Mere conclusory charges that are not factual allegations may not be considered. Morris, supra, 340 Md. at 531 , 667 A.2d at 631 , Faya v. Almaraz, 329 Md. 435, 443 , 620 A.2d 327, 331 (1993).

Moreover, in determining whether a petitioner has alleged claims upon which relief can be granted, ‘[t]here is ... a big difference between that which is necessary to prove the [commission of a tort] and that which is necessary merely to allege [its commission],’ Sharrow, supra, 306 Md. at 770 , 511 A.2d at 500 , and, when that is the issue, the court’s decision does not pass on the merits of the claims; it merely determines the plaintiffs right to bring the action. Figueiredo-Torres v. Nickel, 321 Md. 642, 647 , 584 A.2d 69, 72 (1991). Furthermore, the court must view all well-pleaded facts and the inferences from those facts in a light most favorable to the plaintiff. Board of Education v. Browning, 333 Md. 281, 286 , 635 A.2d 373, 376 (1994).” Lloyd v. General Motors Corp., 397 Md. 108, 121-122 , 916 A.2d 257, 264-265 (2007).

See also Carroll v. Konits, 400 Md. 167, 176 , 929 A.2d 19, 25 (2007). In short, “[dismissal is ³⁸¹ proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff.” McNack v. State, 398 Md. 378, 388 , 920 A.2d 1097, 1103 (2007), quoting Ricketts v. Ricketts, 393 Md. 479, 492 , 903 A.2d 857, 864 (2006) (citing Allied Invest. Corp. v. Jasen, 354 Md. 547, 555 , 731 A.2d 957, 961 (1999); Bobo v. State, 346 Md. 706, 709 , 697 A.2d 1371, 1373 (1997); Morris, 340 Md. at 531 , 667 A.2d at 630 ). To like effect, see Faya v. Almaraz, 329 Md. 435, 442-43 , 620 A.2d 327, 330 (1993).

The sufficiency of the allegations in the petition to state a claim for a mechanics’ lien and, if proven, to establish entitlement to the lien, is not in doubt or, indeed, disputed. The issue, rather is whether the description of the building is sufficiently precise as to identify it for purposes of the lien. Thus, the issue, at this stage, is not whether the allegations are such as to prove that the Arfaas’ residence is the building in which the repair and renovation work giving rise to a lien was done, only whether they sufficiently identify it as such. The Court of Special Appeals characterized the inquiry as whether “Martino’s description of the building was so woefully inadequate as to require dismissal of the petition,” concluding, as we have seen, that it was not.

Martino, 169 Md.App. at 706 , 906 A.2d at 953 . We agree. There is a big difference between proving that the Arfaas’ residence is the subject building and sufficiently alleging that it is. Sharrow, supra at n. 11 , 306 Md. 754, 770 , 511 A.2d 492, 500 .

Martino’s petition did not identify any building other than the one he claimed was the Arfaas’ residence, which he identified by street address. That other buildings may be on the property, at that address, was a matter introduced by the Arfaas’s answer. An answer alleging the existence of other buildings, however, is not dispositive,-for purposes of a motion to dismiss, that allegation, unlike those in the petition, which must be taken in the light most favorable to Martino, need not be viewed in the light most favorable to the Arfaas. At best it creates a dispute of fact, the resolution of which is a matter ³⁸² for the trier of fact.

See RP § 9-106(b) 12 and Maryland Rule 12-304(e). 13 If identifying in the petition for mechanics’ lien ³⁸³ the building as to which a mechanics’ lien is sought by street address is insufficient when the answer to the petition alleges that other buildings are on the property, then more is required than a description adequate to identify the building; proof that it is the building, to the exclusion of other buildings, would be required. Martino did not rely solely on the street address and zip code reference. In addition to the street address and zip code reference, he submitted a tax map parcel number, a printout from the SDAT containing unique descriptive information about the property, his affidavit, and 141 photographs of the Arfaas’ residence, many of which depicted “distinctive features of the subject structure.” Martino, 169 Md.App. at 707 , 906 A.2d at 953-54 . As argued by Martino, at the very least, the petition and the attached documents cumulatively satisfy RP § 9—105(a)(l)(iv) and, thus, were sufficient to survive a motion to dismiss, and indeed, establish entitlement to a mechanics’ lien against the property known as 2310 Cullum Road, Bel Air Maryland, 21015-6539 located in Harford County, Maryland.

Cf. Johns Hopkins Hosp. v. Pepper, 346 Md. 679 , 697 A.2d 1358 (1997) (opining, “[ujnder our liberal rules of pleading, a plaintiff need only state such facts in his or her complaint as are necessary to show an entitlement to relief. Md. Rule 2-303(b)”). ³⁸⁴ Moreover, under RP § 9-104(e), notice by way of posting, is valid only if placed on the “door or other front part of the building.” It follows that the notice that was posted on the Arfaas’ residence could be effective only because it was posted on the building where Martino performed work. It is significant, and telling, that the Arfaas have not challenged the adequacy of the posting.