Mardirossian Family Enterprises v. Clearail, Inc.

KARWACKI, Judge. The issue in this case is whether a subcontractor, seeking to establish a mechanics’ lien pursuant to Maryland Code (1974, 1988 Repl.Yol.) §§ 9-101 through 9-114 of the Real Property Article, timely notified the owner of the building under construction of its intention to claim a lien. Such notice is required by § 9-104 of the Real Property Article, which provides in pertinent part: “(a) Notice required to entitle subcontractor to lien.—(1) A subcontractor doing work or furnishing materials or both for or about a building other than a single family dwelling being erected on the owner’s land for his own residence is not entitled to a lien under this subtitle unless, within 90 days after doing the work or furnishing the materials, the subcontractor gives written notice of an intention to claim a lien substantially in the form specified in subsection (b) of this section____ “(c) Notice by mail or personal delivery.—The notice is effective if given by registered or certified mail, return receipt requested, or personally delivered to the owner by the claimant or his agent____ “(e) Notice by posting.—If notice cannot be given on account of absence or other causes, the subcontractor, or his agent, in the presence of a competent witness and ¹⁹⁴ within 90 days, may place the notice on the door or other front part of the building. Notice by posting according to this subsection is sufficient in all cases where the owner of the property has died and his successors in title do not appear on the public record of the county. “(f) Payments by owner to contractor after notice; limitation on lien against certain single family dwell ings.—(1) On' receipt of notice given under this section, the owner may withhold, from sums due the contractor, the amount the owner ascertains to be due the subcontractor giving the notice____” The Circuit Court for Montgomery County ruled that the timely notice of intention to claim a lien required by § 9-104 had not been given and dismissed the subcontractor’s petition to establish and enforce a mechanics’ lien.

That judgment was reversed by the Court of Special Appeals. Clearail v. Mardirossian, 84 Md.App. 497 , 581 A.2d 36 (1990). We granted the property owner’s writ of certiorari and shall reverse the judgment of the intermediate appellate court. I. In the Court of Special Appeals the parties filed a joint election to proceed on an expedited basis pursuant to Maryland Rule 8-207.

Accordingly, they filed the following agreed statement of the case, including the essential facts, as prescribed by Md.Rule 8-413(b): “Pursuant to a subcontract with a general contractor, Clearail, Inc. (“Clearail”) supplied labor and materials for the installation of clear glass block railings during the construction of an office building at 18757 North Frederick Road, Gaithersburg, Montgomery County, Maryland. The owner of the property was Mardirossian Family Enterprises (“MFE”), a general partnership. “In a petition to establish and enforce a mechanic’s lien filed in the Circuit Court for Montgomery County, Clear-ail alleged that it supplied the labor and materials from April 20, 1989 through July 19, 1989. MFE filed an ¹⁹⁵ answer to petition denying, among other things, that Clearail gave timely notice of its intention to claim a lien under Md. Real Property Code Ann., Sec. 9-104. “A hearing was held on March 7,1990. At the hearing, Clearail’s attorney proffered that within 90 days of July 19, 1989, he mailed two notices dated October 5, 1989, of Clearail’s intention to claim a mechanics’ lien by certified mail, return receipt requested, to MFE at the property address and to MFE’s previous office address.

The certified mail receipts were postmarked October 12, 1989. 1 Both of the notices were returned with the envelopes unopened to Clearail’s attorney, and were marked by the U.S. Postal Service as “unclaimed.” On the post office receipts attached to the envelopes were the following notations: Date 10/14 1st notice 10/20 2nd Notice 10/30 Return “After the unclaimed notices were returned to him, Clearail’s attorney engaged a private process server to serve the notice personally on a partner in MFE. On December 11, 1989, more than 140 days after Clearail stopped its work, the process server personally delivered the notice to Aris Mardirossian, a general partner in MFE. “It was undisputed that Clearail did not post a notice of intent to claim a lien on the building. It was also undisputed that MFE did not receive Clearail’s notice of intention to claim a lien until December 11, 1989, when a copy ¹⁹⁶ of the notice was personally served on Aris Mardirossian.” 2 II. A notice requirement imposed upon subcontractors who intend to establish a mechanics’ lien on property which they have improved by supplying material or labor has been included in every version of the mechanics’ lien law since the first applicable to property in this State was adopted by Ch. 205 of the Acts of 1838.

Barry Properties v. Fick Bros. 277 Md. 15, 17-18 , 353 A.2d 222, 224-25 (1976). We have consistently construed these notice statutes as ones enacted “for the protection of the property owner.” Barry Properties, supra at 36-37 , 353 A.2d at 234-35 ; Himelfarb v. B & M Weld. Iron Wks., 254 Md. 37, 42 , 253 A.2d 842, 844 (1969); District Hgts. Apts. v. Noland Co., 202 Md. 43, 51 , 95 A.2d 90, 94 (1953); Kenly Use of Otto v. Sis. of Char., 63 Md. 306, 309 (1885).

As was stated by the Kenly Court over a century ago: “The foundation of the lien, in a case like the one before us, is the prior notice to be given to the owner. It is required for the protection of the owner, who is authorized to retain in his hands the amount due to the party giving notice. It must be given in writing and served on the owner, or his agent, if they are resident of the city or county where the building is erected. If such notice cannot be given personally on account of absence, or other causes, the claimant may then place the notice on the building____” 63 Md. at 309 .

The purpose of the notice provision in § 9-104 is to protect the property owner against paying twice for the same labor and materials. Once alerted to the subcontractor’s intention to claim a mechanics’ lien, the notice provi ¹⁹⁷ sion permits the owner to withhold from the balance due his general contractor the amount alleged to be due the subcontractor. District Hgts. Apts., supra, at 51, 95 A.2d at 94 ; Bukowitz v. Maryland Lumber Co., 210 Md. 148, 152 , 122 A.2d 486, 488 (1956).

In 1973, the Maryland Legislature for the first time specifically authorized the required written notice to be given by registered mail. 3 Nevertheless, even prior to that enactment, we had held that a registered mail notice to the owner was effective. Jakenjo, Inc. v. Blizzard, 221 Md. 46 , 155 A.2d 661 (1959). The Court reasoned: “[WJhere actual receipt is shown, it would seem to be immaterial whether such receipt is the result of personal service by the sheriff, or by a postman, or other person. See Merrill on Notice, § 643, and cases cited.

The statute only requires that the claimant ‘give notice in writing’, and it does not specify the mode or manner, so long as it reaches the owner or his duly authorized agent.” Id. 210 Md. at 50 , 155 A.2d at 663. But, where there was no proof that the registered mail notice was received by the property owner, we held that the subcontractor had not complied with the notice provision. Bukowitz, supra. The Court stated, “There is nothing in the statute that authorizes service by registered mail which does not actually reach the intended recipient.” Id. at 154 , 122 A.2d at 489 .

In 1976, our mechanics’ lien law was again revised 4 to meet the constitutional objections to its previous provisions set forth in Barry Properties, supra. As part of that comprehensive revision the notice provision was enacted as it substantially now appears in § 9-104 of the Real Property Article. 5 We addressed this version of the notice provi ¹⁹⁸ sion in Riley v. Abrams, 287 Md. 348 , 412 A.2d 996 (1980), where the issue was whether a subcontractor had complied with the notice provision when his certified mail notice mailed within the 90 day period was not received by the owner until the 92nd day. We held that the notice was effective. Judge Rodowsky for The Court wrote: “This Court has held, in one case arising under the Little Miller Act and in another decision dealing with claims against local governments, that the registered mail notice authorized by the statutes there applicable was effectively given if mailed within the prescribed time and received beyond it.” Id. at 351-52 , 412 A.2d at 998 . “At the session of the General Assembly next following the decision in Grubbs [v. Prince George’s Co., 267 Md. 318 , 297 A.2d 754 (1972)], the mechanics’ lien law was amended, as italicized, to read that the subcontractor ‘shall give notice in writing, which may include registered mail, to such owner____’ Ch. 305, Acts of 1972; Code (1957, 1973 Repl.

Vol., 1973 Supp.), Art. 21, § 9-103(a). Since the General Assembly is presumed to be acquainted with the prior decisions of this Court and to have acted accordingly, Supervisor of Assessments of Anne Arundel County v. Southgate Harbor, 279 Md. 586, 591-92 , 369 A.2d 1053, 1056 (1977), the inclusion in the mechanics’ lien law of registered mail as an expressly authorized manner of giving notice is strongly indicative of a legislative intent that a notice sent by registered mail within the statutory period complies even though receipt occurs beyond the statutory period.” (footnote omitted.) Id. at 355-56, 412 A.2d at 1000 . “Since the notice from Subcontractor in this case was received by Owner, we do not reach the interpretation of Real Property Article, § 9-104 if it were found as a fact that the subcontractor’s notice was mailed within the ¹⁹⁹ statutory period but was not received.” (footnote omitted) (emphasis in original). Id. at 357, 412 A.2d at 1000 .

III

Our aim in construing § 9-104 of the Real Property Article is to ascertain and effectuate legislative intent. To do so “we look first to the words of the statute, read in light of the full context in which they appear, and in light of external manifestations of