Martino v. Arfaa

MEREDITH, J. In this mechanic’s lien case, we conclude that the petitioner’s description of the subject building in the petition to establish a mechanic’s lien was legally adequate to survive a motion to dismiss. The petition at issue here was filed in the Circuit Court for Harford County by Christopher Martino, d/b/a Do-i1>-All Construction, Inc. (“Martino”), the appellant, seeking to establish a mechanic’s lien against “the property located at 2310 Cullum Road, Bel Air, Maryland 21015-6539” for renovations and repairs Martino had performed there as a subcontractor. The property is owned by Manoochehr and Dottie Ferris Arfaa, the appellees, and the work performed by Martino on the Arfaas’ property was done exclusively on their fire-damaged home. Based upon the Arfaas’ answer to Martino’s petition, the circuit court dismissed the petition, concluding that the petition failed to include “a description adequate to identify the building,” as required by Maryland Code (1974, 2003 Repl.

Vol.), Real Property Article (“RP”), § 9-105(a)(l)(iv). Because Martino was by that point beyond the time for filing a new lien claim pursuant to RP § 9-105(a), the circuit court further concluded that the subcontractor could not supplement the building description by amending the petition pursuant to Maryland Rule 12-303, and consequently, it was the opinion of the circuit court that “the petition to establish a mechanic’s lien should be dismissed as a matter of law.” Because we disagree that Martino’s description of the building was insufficient to satisfy the pleading requirements of RP § 9-105, we shall vacate the judgment of the circuit court and remand the case for further proceedings. ⁶⁹⁵ Facts and Procedural Background Dr. and Mrs. Arfaa own a residential property that has a street address of “2310 Cullum Road,” in Bel Air, Harford County, Maryland. According to a print-out from the on-line records of the Maryland State Department of Assessments and Taxation (“SDAT”), a copy of which was attached as an exhibit to Martino’s petition, the Arfaas’ property has a mailing address of 2310 Cullum Rd, Bel Air MD 21015-6539. The SDAT print-out provides the following additional details regarding the subject property.

The property was acquired by a deed dated 08/23/1985, having a recording reference of [Liber]1283/[folio]283. The property consists of 73.77 acres of land, and appears on tax map 57, grid 2E, as parcel 50. The property is improved by a primary structure, which, as of the then most recent update of the assessment records, was a two-story brick building built in 1920, having 4,552 square feet of enclosed space. The print-out made no mention of any accessory structures or additional buildings on the parcel of property.

On August 21, 2002, the Arfaas’ house at 2310 Cullum Road was damaged by fire. The Arfaas hired Belfor USA Group, Inc. (not a party to this case) to oversee the repairs and renovations that were planned for their property. As the Arfaas’ general contractor, Belfor entered into a contract with the Keith Parker Construction Company (not a party to this case) to perform the repair and renovation work. Parker Construction hired Martino as a subcontractor to perform a substantial portion of the renovation work on the 2310 Cullum Road house.

As of July 18, 2003, Martino had completed approximately nine weeks of work on the Arfaas’ property. According to Martino’s petition, the work performed by his company as a subcontractor “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, installation of] subflooring, construction of exterior ⁶⁹⁶ walls, construction of dormers, installation of skylights, etc.” Martino invoiced Parker $93,145 for work and materials, but was paid only $23,650, which covered only the first three weeks of work and left an unpaid balance due Martino in the amount of $69,495. On October 7, 2003, as required by RP § 9-104, Martino served the Arfaas with a notice of Martino’s intention to claim a lien in the amount of $69,495. Attached to the notice were copies of invoices addressed to “Keith Parker Construction,” totaling $69,495.

Although the invoices varied by week number and amount, they were otherwise identical in form and content. They stated: 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! On December 29, 2003, within 180 days after the last day Martino performed work on the Arfaas’ property, Martino filed in the Circuit Court for Harford County a petition to establish a mechanic’s lien. The petition stated, in part: NOW COMES the petitioner, Christopher Martino, d/b/a Do-It-All Construction, Inc ----and hereby petitions the Court to establish a mechanic’s 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. Manooehehr Arfaa and Mrs. Dottie Arfaa (hereinafter referred to as “the Arfaas”). (See Exhibit A [the printout from the records of SDAT]). ⁶⁹⁷ 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 [appellant] 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 [appellant] 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, 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 mechanic’s 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. Attached to the petition was the Maryland SDAT record describing the property, an affidavit of Martino, the notice to the Arfaas of the subcontractor’s intention to claim a lien, ⁶⁹⁸ construction notes, invoices, and change orders. Exhibit C to the petition consisted of 47 pages of photocopies of photographs of the building in various stages of construction. There were three photographs on each page, ie., 141 photographs in all.

The photographs depicted several views of the structure, and, as a group, show a very substantial—and possibly unique—home with distinctive architectural features such as very large columns, or pillars, at one facade. On February 4, 2004, the Arfaas filed an answer to the petition, in which they denied having hired Martino, and further asserted that they had paid Belfor for any work claimed by Martino. In their answer, the Arfaas emphasized: “Dr. and Mrs. Arfaa are NOT in control of the business practices between Belfor USA/Inrecon and their subcontractors. If the Petitioner was not paid by Keith Parker Construction Company, it has NO association with Dr. and Mrs. Arfaa’s bona fide purchases of the value of the work completed at their property where they hold legal title.” (Emphasis in original.) The Arfaas also attached to their answer a number of exhibits regarding their contractual relationship with Belfor.

On many of the exhibits attached by the Arfaas, their mailing address appears to be “2310 Cullum Rd., Bel Air, Md. 21015.” Moreover, one of the exhibits, the work authorization for Belfor to proceed with the repairs, includes this reference to the subject property: “[The Arfaas] represent ] that [ ]they are owners of ... the hereinafter specified property ... and hereby authorize and direct Belfor USA Group, Inc. (‘Contractor’) to provide all labor, equipment and materials required to properly repair the specified real property, contents or structure commonly known as: 2310 Cullum Rd., Bel Air, MD. 21015.” In other exhibits attached by the Arfaas, including correspondence from Dr. Arfaa to Belfor, the renovation project is referred to as “Job: 2310 Cullum Road, Bel Air, MD.” The exhibits attached to the Arfaas’ answer also indicate that the Arfaas paid Belfor in excess of the amount claimed by ⁶⁹⁹ Martino subsequent to October 7, 2003, the date Martino served the Arfaas with notice of Martino’s intent to claim a lien. Indeed, Dr. Arfaa’s letter to Belfor dated January 7, 2004, not only enclosed a progress payment of $50,000, but also advised Belfor that the Arfaas had been served with Martino’s petition, and disclaimed any “responsibility to pay for such monies owed to [Belfor’s] subcontractors.... ” On February 20, 2004, the circuit court ordered the Arfaas to show cause show why a lien should not attach to the property described in Martino’s petition in the amount requested by that petition. The court scheduled a hearing for April 13, 2004. Before the April 13th hearing began, Mrs. Arfaa, who served as counsel for the Arfaas, hand-delivered to Martino’s counsel a sworn “Amended Answer to Petition for Mechanic’s Lien.” The amended answer asserted in part: Neither the Petitioner’s Notice or Petition describe the building upon which they desire a Mechanic’s 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 it 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. ... Additionally, the Petitioner’s Petition for a Mechanic’s Lien cannot be amended by leave of the court because it is beyond the 180 days deadline or [sic] any such amendment would materially alter the property that is the subject of the pleading. Also on April 13, 2004, the court heard brief argument on the legal issues, and held the matter sub curia.

On June 8, 2004, the court issued a written memorandum and order that dismissed Martino’s petition. After observing that, “[i]n general, the burden is on the claimant to establish its entitlement to a mechanic’s lien,” the court found that Martino had not satisfied that burden because his “petition fail[ed] to adequately identify the building upon which the lien ⁷⁰⁰ is sought.” Although the petition included numerous exhibits, including invoices for the work performed, pictures of the work performed, and affidavits of service, the court noted that, “[w]ithin these exhibits, there is nothing which describes the building upon which the work was performed in a manner sufficient to identify the specific building.” The court observed that the only reference to a specific building on the property was a statement in the affidavit of service that a copy of the “Notice to Owner or Owner’s Agent of Intention to File a Lien” was served by posting on “the door of the residence located at 2310 Cullum Road” (emphasis added). That, the court declared, “is not sufficient.” “[I]t is not clear from the pleadings,” the court explained, “which of the three buildings on the property qualifies as the ‘residence’ of the [Arfaas],” and therefore, the court concluded, the petition does not “satisfy the requirement of a ‘description adequate to identify the building’ of Real Property § 9-105(a)(l)(iv).’ ” Further, the court held, the petition could not be amended to more fully identify the building, because the time for filing such a “material” amendment had run. See RP § 9-112; Maryland Rule 12-303.

Accordingly, the court dismissed the petition as “facially defective.” It noted, however, that Martino’s “claim for work done and/or materials furnished is still viable and this case should proceed to trial or other disposition on that claim.” Thereafter, Martino filed a motion for reconsideration. After that motion was denied by order dated July 28, 2004, Martino filed a Motion for Entry of Final Judgment. In that motion, Martino conceded that, apart from his claim for a subcontractor’s mechanic’s lien, “he does not have any direct contract claim against the Arfaas. For this reason, there is nothing left to adjudicate between the Plaintiff and these Defendants.” Opposing that motion, the Arfaas argued that the court’s “[o]rders of June 8 and July 28, 2004 [were] final judgments disposing of all of the in rem claims between all of the parties — ” The circuit court apparently agreed with Martino on this point, and, on October 12, 2004, entered “final judgment,” after which Martino noted this appeal. ⁷⁰¹ Discussion We must first review the timeliness of Martino’s notice of appeal.

After explaining why the appeal was timely filed, we shall review the requirements of RP § 9—105(a)(1)(iv), and explain why we conclude that Martino’s petition set forth a legally adequate description of the land and building. 1. Timeliness of Appeal The Arfaas assert that Martino’s appeal was not timely filed. If they were correct, we would be without jurisdiction to hear the appeal. Accordingly, we have reviewed the circuit court’s orders and the docket entries to determine whether this appeal was timely filed.

We have concluded that the appeal was timely, not because of the purported entry of “final judgment” on October 12, 2004, but rather because of the operation and effect of Maryland Rule 2-601. We explain. Rule2-601(b) directs: The clerk shall enter a judgment by making a record of it in writing on the file jacket, or on a docket within the file, or in a docket book, according to the practice of each court, and shall record the actual date of the entry. That date shall be the date of the judgment.

(Emphasis added.) Consequently, it is not the date that the judge signs an order that controls the deadline for filing an appeal; nor is it the time-stamp date that is placed upon the order when it is filed with the clerk’s office that controls. Pursuant to the plain language of Rule 2-601 (b), the date of the judgment is the actual date on which the judgment is entered on the docket, and it is that date that begins the 30 day period for filing a notice of appeal pursuant to Rule 8-202(a). In the present case, the circuit court judge signed an order reflecting that Martino’s petition was “denied” on June 8, 2004. That order bears a stamp reflecting that the signed order was also “filed” on June 8, 2004.

The docket entries, however, indicate that that order was entered on the docket on June 11, 2004. That latter date would have begun the time ⁷⁰² for Martino to note an appeal if he had not filed a motion for reconsideration within ten days after June 11, 2004. As permitted by Rule 2-535, Martino did file a motion for reconsideration of the court’s June 8 order. That motion bears a stamp reflecting that it was filed with the clerk’s office on June 17, 2004.

Because that motion was filed within ten days after entry of the judgment on the docket, Rule 8-202(c) provides that the time for Martino to file a notice of appeal was extended until 30 days after disposition of the motion. See Committee Note to Rule 8-202, stating: “A motion filed pursuant to Rule 2-535, if filed within ten days after entry of judgment, will have the same effect as a motion filed pursuant to Rule 2-534, for purposes of this Rule. Unnamed Atty. v. Attorney Griev. Comm’n, 303 Md. 473 , [486,] 494 A.2d 940 (1985); Sieck v. Sieck, 66 Md.App. 37 , [42-44,] 502 A.2d 528 (1986) .” Accord Alitalia v. Tornillo, 320 Md. 192, 200 , 577 A.2d 34 (1990) (“a Rule 2-535 motion, if filed within 10 days of the entry of judgment by the court, will be treated as a Rule 2-534 motion and have the same effect on appeal time”).

Rule 8-202(c) specifies that a post-judgment motion must be “filed,” rather than “docketed,” within the ten day time limit of 2-534 in order to stay the deadline for noting an appeal. Accordingly, Martino’s motion for reconsideration, “filed” on June 17, 2004, suspended the time for noting an appeal even though the motion was not docketed until September 15, 2004. The circuit court denied the motion for reconsideration by signing an order that was dated July 28, 2004. That order bears a stamp reflecting that it was “filed” with the clerk on July 28, 2004.

Pursuant to Rule 2-601(b), however, the effective date of that order as a judgment was the date it was entered on the docket, i.e., September 15, 2004. Martino’s notice of appeal was filed on October 14, 2004, within 30 days after the clerk docketed the disposition of the motion for reconsideration. Accordingly, Martino’s appeal was timely. Before filing his notice of appeal, however, Martino, on September 17, 2004, filed a motion “pursuant to Maryland Rule 2-602(b) for the entry of final judgment,” contending ⁷⁰³ that the court’s comment about the possibility of Martino pursuing alternative claims “for work done and/or materials provided” left open an unresolved claim in the case.

The Arfaas disagreed with that assertion, and so do we. The only complaint filed by Martino in this case—the petition—has a single specific claim for relief, viz.: “Petitioner respectfully requests that this Court impose a mechanic’s 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.” Consequently, notwithstanding the circuit court’s comment about not foreclosing the possibility of Martino pursuing alternative claims, no alternative claims for relief were ever asserted in the complaint in this case. The court’s denial of the petition for a mechanic’s lien, therefore, disposed of all pending claims against all served parties, and no further order pursuant to Rule 2-602 was required. Nor did the entry of such a surplus order in this case extend the time for filing an appeal.

Because we have determined that Martino’s notice of appeal was timely for other reasons, however, the entry of the “final judgment” order, docketed October 13, 2004, was a harmless nullity. 2. Sufficiency of Mechanic’s Lien Petition Martino contends that the circuit court erred in dismissing his Petition for Mechanic’s Lien for failing to adequately describe the building as required by RP § 9-105(a)(l)(iv). We agree. RP § 9-105(a) describes the information that must be included in a petition seeking a mechanic’s lien.

It provides: ... The proceedings shall be commenced by filing with the clerk, the following: (1) A petition to establish the mechanic’s lien, which shall set forth at least the following: (i) The name and address of the petitioner; (ii) The name and address of the owner; ⁷⁰⁴ (iii) The nature or kind of work done or the kind and amount of materials furnished, the time when the work was done or the materials furnished, the name of the person for whom the work was done or to whom the materials were furnished and the amount or sum claimed to be due, less any credit recognized by the petitioner; (iv) A description of the land, including a statement whether part of the land is located in another county, and a description adequate to identify the building; and (v) If the petitioner is a subcontractor, facts showing that the notice required under § 9-104 of this subtitle was properly mailed or served upon the owner, or, if so authorized, posted on the building. If the lien is sought to be established against two or more buildings on separate lots or parcels of land owned by the same person, the lien will be postponed to other mechanics’ liens unless the petitioner designates the amount he claims is due him on each building; (2) An affidavit by the petitioner or some person on his behalf, setting forth facts upon which the petitioner claims he is entitled to the lien in the amount specified; and (3) Either original or sworn, certified or photostatic copies of material papers or parts thereof, if any, which constitute the basis of the lien claim, unless the absence thereof is explained in the affidavit. (Emphasis added.) The circuit court accepted the Arfaas’ argument that Martino’s petition was fatally deficient with respect to its description of the specific building upon which a lien was sought.

After noting that the Arfaas had stated in their answer that “there are three separate buildings located on the property at 2310 Cullum Road,” the court further observed that “[t]he Petitioner continually references the property upon which the work was completed, yet at no point does the petition specify a building upon which the work was performed and the materials were furnished.” (Emphasis in original.) The court concluded that, even with the exhibits, “it is not clear from the ⁷⁰⁵ pleadings which of the three buildings on the property qualifies as the ‘residence’ of the [Arfaas].” In response to Martino’s motion for reconsideration, the circuit court maintained its position that the petition was inadequate as a matter of law, stating: While the photographs attached to the petition may help to clarify the building upon which the lien was intended to be sought by the Petitioner, the photographs do not situate the building in a “reasonable local[e]” on the 73 acres of the Defendants’ property, as noted in Scott & Wimbrow v. Wisterco Inv., Inc., 36 Md.App. 274 , 373 A.2d 965, 969-70 (1977). Further, the Court’s reliance in the previous opinion on Mervin L. Blades & Son, Inc. v. Lighthouse Sound Marina and Country Club, 37 Md.App. 265 , 377 A.2d 523 (1977) was not improper. In that case, a mechanic’s lien was denied when a claim for a lien against a “building or buildings” was found noncompliant with the Maryland statutes. Here, the lien describes the “property” of the Defendants as the subject of the lien.

Further, the photographs attached do not clearly distinguish the residence of the Defendants from any of the other buildings on their property. We described the standard for appellate review of a grant of a motion to dismiss a mechanic’s lien claim as follows in Gravett v. Covenant Life Church, 154 Md.App. 640, 645 , 841 A.2d 342 (2004): “The proper standard for reviewing the grant of a motion to dismiss is whether the trial court was legally correct. In reviewing the grant of a motion to dismiss, we must determine whether the complaint, on its face, discloses a legally sufficient cause of action.” Fioretti v. Md. State Bd. of Dental Exam’rs, 351 Md. 66, 71-72 , 716 A.2d 258 (1998) (citations