Riley v. Abrams

Rodowsky, J., delivered the opinion of the Court. ³⁴⁹ The sole issue presented here is the timeliness of the notice by a subcontractor to the owner of intention to claim a mechanics’ lien. The subcontractor, on the 85th day after doing the work or furnishing the materials, mailed the notice to the owner in New Jersey by certified mail, return receipt requested. The notice was in fact received, but on the 92nd day. We hold that the notice here is effective under the mechanics’ lien law, Maryland Code (1974, 1979 Cum.

Supp.), § 9-104 of the Real Property Article. Appellant, Norman Riley, of Hazlet, New Jersey ("Owner”), was having a house built in Kent County by Brick Homes, Inc., as contractor. Appellee, Robert Abrams ("Subcontractor”), furnished and hung dry wall at Owner’s house beginning June 15, 1978 and concluding June 28, 1978. On September 21, 1978 Subcontractor mailed to Owner a notice of intention to claim a mechanics’ lien in the amount of $1,130.32.

The notice was sent by certified mail. It was received on September 28,1978 as evidence by the return receipt. The petition to establish a mechanics’ lien was filed December 8, 1978. Counsel narrowed the issues before the Circuit Court exclusively to whether the notice complied with Real Property Article, § 9-104.

The trial court determined that the notice was effective and on July 19, 1979 entered a final order establishing the mechanics’ lien. 1 Owner appealed and we granted certiorari prior to decision by the Court of Special Appeals. This case arises under the mechanics’ lien law 2 enacted by Chapter 349 of the Acts of 1976 in response to Barry ³⁵⁰ Properties, Inc. v. Fick Brothers Roofing Co., 277 Md. 15 , 353 A.2d 222 (1976). The statute provides in part: § 9-104. Notice to owner by subcontractor.

(a) Notice required to entitle subcontractor to lien. — A subcontractor is not entitled to a lien under this subtitle unless, within 90 days after doing the work or furnishing the materials, he gives written notice of his 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. (i) Payments by owner to contractor after notice. — On receipt of notice given under this section, the owner maywithhold, from sums due the contractor, the amount the owner ascertains to be due the subcontractor giving the notice. If the subcontractor giving notice establishes a lien in accordance with this subtitle, the contractor shall receive only the difference between the amount due him and that due the subcontractor giving the notice.

Section 9-105 (a)(1) addresses the petition to establish a lien, which [S]hall set forth at least the following: (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. Here Owner points to the provision of § 9-104 (a) that ³⁵¹ there is no lien entitlement unless the subcontractor "gives written notice” which, Owner argues, requires receipt within the 90 day period. Owner relies on decisions of this Court arising under the mechanics’ lien law before registered mail notice was specifically authorized.

For example, Jakenjo, Inc. v. Blizzard, 221 Md. 46 , 155 A.2d 661 (1959) arose under Code (1957), Art. 63, § 11. There a registered mail notice receipted for within the 90 day period by the secretary of the resident agent of the corporate owner was held to be effective. We said that 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.” 221 Md. at 50, 155 A.2d at 663. In Bukowitz v. Maryland Lumber Co., 210 Md. 148 , 122 A.2d 486 (1956), which arose under Code (1951), Art. 63, § 11, we held there was no proof of receipt of the notice by one of the owners and that "[t]here is nothing in the statute that authorizes service by registered mail which does not actually reach the intended recipient.” 210 Md. at 154 , 122 A.2d at 489 .

Subcontractor in the instant matter looks to § 9-104 (c), which authorizes registered mail notice, and refers to Landover Assoc. v. Fabricated Steel Products, Inc., 35 Md. App. 673 , 371 A.2d 1140 , cert. denied, 281 Md. 740 (1977) in which a " 'legal presumption’ ”of receipt from proof of proper mailing was applied to sustain admissibility of a return receipt bearing an illegible signature. 3 Id. at 681, 371 A.2d at 1145 . Subcontractor reads Landover Assoc, as support for the proposition that mailing alone is consistent with the requirements of the mechanics’ lien law. Although we conclude that the notice by Subcontractor in this case does comply, it is for reasons which need not take us as far as Subcontractor’s argument reaches. This Court has held, in one case arising under the Little ³⁵² 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.

The Little Miller Act was involved in Montgomery County ex rel. Carrier Corp. v. Glassman Constr. Co., 245 Md. 192 , 225 A.2d 448 (1967). It provided: [A]ny person having direct contractual relationship with a subcontractor of the contractor... shall have a right of action upon the payment bond upon giving written notice to the contractor within ninety (90) days from the date on which such person did, or performed the last of the labor or furnished or supplied the last of the material for which such claim is made____Such notice shall be served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office or conducts his business, or his residence. 4 A sub-subcontractor on a public school project mailed, by certified mail, a notice to the contractor on Friday or Saturday, the 89th or 90th day.

The notice was received the following Monday. The trial court held that notice was too late. Judgment of dismissal was reversed. In an opinion by Judge Oppenheimer we reasoned: The statute provides that a claimant shall have a right of action upon the bond "upon giving written notice to the contractor within ninety (90) days from the date” the last of the labor was performed or the last of the material furnished or supplied.

It does not state that the contractor must receive the notice within the 90 days. The notice "shall be served” by mailing it by registered or certified mail, postage prepaid .... We regard it as significant in the question of ³⁵³ statutory construction that the manner in which the notice is to be mailed is carefully set forth. Not only must postage be prepaid, but ordinary mail is not sufficient; the notice must be sent by registered or certified mail.

The Legislature has eliminated claims of alleged oral notice as fulfilling the 90 day requirement and has provided, in effect, that receipt of the written notice by the contractor is essential to prove the mailing. These provisions do not, of themselves, answer the question of the legislative intent, but they may properly be taken as some evidence of an intent that, with the protection they give the contractor against unsupported claims of mailing, the mailing of the notice tolls the statutory period. [ 245 Md. at 201-02 , 225 A.2d at 454 .] It was noted that two United States District Court decisions 5 under the Miller Act, 40 U.S.C. § 270b (a), had held that its similar notice requirement is satisfied by a letter mailed on or before the 90th day, although not received by the contractor until after that day and that the same result was reached under a similar provision of the New Jersey mechanics’ lien law. 6 In Glassman, we recognized that one of the parties involved must carry some risk of uncertainty and inconvenience, and tipped the scale in favor of the claimant. Thus: It is true, as the appellees argue, that to hold the ³⁵⁴ statute means that the claimant is protected if he mails notice, in the manner prescribed, within the 90 day period, means that the contractor, if he does not receive the notice within that period, will be placed in the position, for some period of time, of not knowing whether he may pay his subcontractor after the expiration of the period without fear of being bound by demands by sub-subcontractors, mailed earlier but arriving later. It is also true, however, that to hold the claimant’s notice, to be effective, must be received by the general contractor within the 90 day period would mean that, in effect, the 90 day period so far as the claimant is concerned is whittled down, for he would have to mail his notice in ample time to ensure that the contractor, wherever