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McNair Builders, Inc. v. 1629 16th Street

April 2, 2009

MCNAIR BUILDERS, INC., APPELLANT,
v.
1629 16TH STREET, L.L.C., APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA-2811-06) (Hon. Judith E. Retchin, Trial Judge).

The opinion of the court was delivered by: Farrell, Senior Judge

Argued February 19, 2009

Before RUIZ and GLICKMAN, Associate Judges, and FARRELL, Senior Judge.

The District of Columbia's mechanic's lien statute "has been traditionally construed narrowly," Aetna Cas. & Sur. Co. v. Circle Equip. Co., 126 U.S. App. D.C. 275, 280 n.6, 377 F.2d 160, 165 n.6 (1967), in keeping with the fact that the remedy it creates is "solely a creation of statute." Moore v. Axelrod, 443 A.2d 40, 43 (D.C. 1982). In this action seeking to enforce a mechanic's lien, the trial court granted partial summary judgment to appellee - effectively canceling appellant's mechanic's lien - because appellant had not complied with the statutory requirement, D.C. Code § 40-301.02 (b)(2) (2008 Supp.), to name in the lien notice the owner of the property subject to the lien. We likewise conclude that the notice was defective partly in naming the wrong owner and partly in misdescribing the property to which the lien related, and that summary judgment was therefore proper.

I.

Pursuant to a 2003 contract, appellant (hereafter "McNair") performed construction work on a building or buildings located at 1629 16th Street, N.W., then wholly owned by appellee, 1629 16th Street, L.L.C. (hereafter "1629 L.L.C."). After a dispute arose between the parties over McNair's performance and 1629 L.L.C.'s obligation to pay, McNair filed a notice of intent with the Office of the Recorder of Deeds on January 16, 2006, "to hold a Mechanic's Lien against the interest of the current owner . . . [of the] property located at 1629 16th Street, N.W. . . ., Square . . . 0193 [,] . . . Lot(s) 0152, 2075, [and] 2077." The notice named the owner of the property as "1629 16th Street, L.L.C."

In the meantime, however, by a Declaration dated April 7, 2005, 1629 L.L.C. had submitted the land and improvements "located on Lot 152 in Square 193 . . . to the provisions of" the District's Condominium Act of 1976 (as amended in 1992), establishing "a plan of condominium ownership of the [p]roperty." Specifically, the plan created five residential units plus two parking units and common elements. Once the plan was approved, the subdivided lots acquired the numbers 2072 through 2078 in the District's land records. Thus, for example, unit number 4 and parking unit number 1 in the condominium declaration became "Lots 2075 and 2077, respectively," in Square 193. On October 4, 2005, 1629 L.L.C. sold Lots 2075 and 2077 to Robert M. Taylor, its Managing Member. The remaining Lots, with one exception, had apparently also been conveyed to individual owners by the time McNair filed its mechanic's lien notice in January 2006. The exception was Lot 2076, which 1629 L.L.C. had originally reserved as "convertible space" but then converted to a residential unit by amending the condominium declaration, though retaining ownership of it.

Following the dispute mentioned above, McNair filed its mechanic's lien and, in April 2006, a complaint to enforce the lien, as well as for breach of contract and damages in quantum meruit. Simultaneously, McNair filed a notice of pendency of action (lis pendens). See D.C. Code § 42-1207 (2001). On 1629 L.L.C.'s subsequent motion for partial summary judgment, the trial court ruled that the mechanic's lien was invalid for failure to name the correct owner of the subject property. Focusing primarily on Robert M. Taylor's ownership of Lots 2075 and 2077, the judge concluded that "there is no material factual dispute as to the contents of the lien and who the record owner was at the time the lien was filed": it was Taylor, not 1629 L.L.C. The court later "set[] aside the lis pendens" because of invalidity of the lien to which it related. See D.C. Code § 42-1207 (d).

II.

McNair appeals from the order canceling the lis pendens. See McAteer v. Lauterbach, 908 A.2d 1168, 1169 (D.C. 2006) (order expunging a lis pendens is appealable under the collateral order doctrine). The bulk of its argument assails the court's refusal to enforce the underlying mechanic's lien, but preliminarily it challenges cancellation of the lis pendens as premature. We address these arguments in order.

A.

McNair first contends that the trial court erroneously cancelled the lis pendens based on its grant of summary judgment respecting the mechanic's lien, because that judgment "remains subject to revision" so long as McNair's companion allegations of breach of contract and quantum meruit have not been resolved (Br. for McNair at 9). (Those claims were referred to arbitration by agreement of the parties, and had not been finally resolved at the time of oral argument in this appeal.) D.C. Code § 42-1207 (d) provides that a lis pendens shall be cancelled "[i]f judgment is rendered in the action . . . against the party who filed the notice," and, in McNair's view this means "judgment" as to all counts of the underlying complaint before a lis pendens can be nullified. Given the nature of the companion counts here, however, we do not agree.

The purpose of a lis pendens is "to enable interested third parties to discover the existence and scope of pending litigation affecting property." Heck v. Adamson, 941 A.2d 1028, 1029 (D.C. 2008) (quoting 1st Atlantic Guaranty Corp. v. Tillerson, 916 A.2d 153, 157 (D.C. 2007)). For a lis pendens to operate, there must be a pending case "affecting the title to or asserting a mortgage, lien, security interest, or other interest in real property situated in the District of Columbia." Section 42-1207 (a). Other matters, though at first appearing to involve real property, do not support the filing of a lis pendens "because no specific property is designated for relief in the judgment or decree." 14 POWELL ON REAL PROPERTY § 82A.02[4][b], at 82A-18 (2008) (citing cases). Among those matters are "[a]ctions to recover a debt . . . and other forms of litigation merely seeking a recovery of money damages." Id. at 82A-17.*fn1 Here, the trial court granted summary judgment to 1629 L.L.C after concluding that the notice of mechanic's lien was invalid. In the two remaining counts of the complaint - for breach of contract and quantum meruit - McNair sought only monetary damages. Once the court declined to enforce ...


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