UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1709

September Term, 1996

________________________

F. MARTIN ANSON

Appellant

v.

THE SANDERS COMPANY, INC.

Appellee

_______________________

Cathell,
Davis,
Byrnes

(Judges)

______________________

Opinion by Davis, J.
_____________________

Filed: September 23, 1997



Counsel for Appellant: James C. Praley, Esquire, Lessans, Praley & McCormick, P.A.

Counsel for Appellee: Robert R. Bowie, Jr., Teresa K. Lamaster, Bowie & Jensen, LLC



On November 15, 1995, Appellee The Sanders Company, Inc. filed a Petition to Establish a Mechanics' Lien in the Circuit Court for Anne Arundel County. The Petition asserted that Appellee was a subcontractor and had furnished materials for improvements to the property located at 2148 Poplar Ridge Road in Pasadena. On December 20, 1995, the Circuit Court (North, J.) notified Appellee's counsel that, under Md. Rule BG71(B)(iii), the Petition must state the name of the person for whom the work was performed. Appellee amended its Petition on January 3, 1996. The Circuit Court issued a Show Cause Order on January 9, 1996. Appellant F. Martin Anson was served with the Show Cause Order on January 21, 1996.

At the conclusion of the Show Cause Hearing, the Circuit Court (Greene, J.) issued an interlocutory order establishing a mechanics' lien until the matter could be resolved at trial. Trial was held on July 31, 1996, at the end of which the Court granted a mechanics' lien to Appellee in the amount of $28,935.51. On August 19, 1996, the Court issued an Order to this effect and further ordered that the lien "shall be released upon a full deposit of the amount of $28,935.51 into an escrow account of the court." On August 28, 1996, Appellant filed his Notice of Appeal. On September 20, 1996, Appellant paid $24,935.51 into the Court registry, but failed thereafter to pay the remaining $4,000 as ordered by the Court.

Appellant presents three questions for our review, which we restate as follows:

I. Is Appellee a "materialman" under the Maryland Mechanics' Lien Act?

II. Did the Circuit Court err by allowing Appellee to amend its Petition to Establish a Mechanics' Lien once 180 days had passed since the delivery of the materials upon which the Petition was based?

III. Has Appellee's right to enforce the mechanics' lien granted by the court expired as a matter of law?



We answer the first question in the affirmative and the second question in the negative. We do not reach the third question because it was not decided by the Circuit Court. We therefore affirm the judgment of the lower court.

FACTS

Appellant, the owner of the subject property, contracted with S&S Building Contractors, Inc. (S&S), the general contractor, to construct his home. S&S contracted with subcontractor and materialman R. Lumber Company ® Lumber), the window and lumber supplier for the home. R Lumber, in turn, contracted with Appellee, who was acting as a materials distributor for Marvin Windows & Doors (Marvin), a nationally known windows manufacturer. Marvin manufactured the windows and other materials ordered through Appellee and delivered the materials directly to the subject property on June 9, 1995. S&S employees unloaded the windows delivered by Marvin employees. The delivery was scheduled by R Lumber, and an employee of R Lumber confirmed delivery of the materials. After delivery, Appellee paid Marvin the amount owed under subcontract (and the amount later sought in the lien petition), $28,935.51.

S&S promptly paid R. Lumber's bill of $39,991.31 for the materials delivered. Ten days later, S&S submitted to Appellant a bill for requested services and materials (including the windows) in the amount of $90,000; Appellant paid S&S the next day. All subcontractors were now paid except for Appellee. After being paid by S&S, but before paying Appellee, R Lumber sought bankruptcy protection under the U.S. Bankruptcy Code. Appellee was left without redress, and filed its lien petition on November 15, 1995.

ANALYSIS

I

Appellant, observing that he believes the central issue in this case to be novel, frames that issue by asking "how far up the manufacturing and distribution chain for building materials the Act [Title 9, Subtitle 1, Md. Code, Real Prop. Art. (1996 Repl. Vol) (R.P.)] is intended to provide protection to parties who are not in direct privity of contract with the owner of [the] property, or the owner's contractor[?]". Appellant suggests that Appellee cannot meet the test set forth by R.P. 9-102(a) providing for the establishment of liens "for the payment of all debts, without regard to the amount, contracted for work done for or about the building and for materials furnished for or about the building ..." Citing District Heights Apartments, Section D-E, Inc. v. Noland Co, Inc., 202 Md. 43 (1953), Appellant contends that Appellee cannot qualify as a materialman under the statute "since the Materials were, uncontravertedly [sic], physically delivered by R Lumber and Marvin."

Appellee points out that District Heights does not hold that, in order to qualify as a materialman under the statute, one must make the delivery to the site. As Appellee further points out, that decision merely holds that the entity contracting to provide the materials has a right to a mechanics' lien provided it can show that there is a contract for materials to be furnished for the property and that delivery of those materials is made to one employed by the owner of the property. Notwithstanding Appellant's assertion that this is a case of first impression, it seems to us that 5500 Coastal Highway Limited Partnership v. Electrical Equipment Co., Inc., 395 Md. 532 (1986), is not only instructive, but is absolutely dispositive. There, the Court of Appeals held that the suppliers of materials to a modular home builder in Delaware were entitled to a mechanics' lien on a building whose modular components had been constructed in Maryland.

The Maryland property owner had contracted with a modular home builder in Delaware to build, deliver, and install the modular units to be incorporated into the condominium project. Electrical and plumbing materials, made specially for the modular units, were delivered by the materialmen to the Delaware modular building plan where they were incorporated in the units. The Court penned:

Although this is a case of first impression in Maryland, two of our earlier cases point in the direction contended for by the lienors in that they have permitted the establishment of liens for work done away from the building site . . .



Evans Co. v. Internat. Trust Co., 101 Md. 210, 60 A. 667 (1905), was concerned, among other claims, with that of a subcontractor who, as the Court put it, made "a contract which provided that [he] should 'cut, carve, furnish the models and completely erect and place and finish all the exterior marble work' for the said building - the Marble Company 'to deliver all the stock sawed to dimensions, as directed by' [the subcontractor] at 'his switch, at Waverly, Baltimore.'" The Court said:



"The last ground of objection to the claim under consideration to be noticed is ... that there can be no lien by Bevan for work done at his shops as described in his evidence and not done at or on the building or premises. There can be no good reason for this contention. It will often contribute to economy as well as convenience in the construction of a building that necessary work in the preparation of materials for use in the course of such construction be done away from the premises. This would be especially so as to a building of the size and character of the one here in question ."



(Emphasis added).

Citing 57 C.J.S. Mechanics' Liens 39 (1948), the 5500 Coastal Highway court noted:

. . . . Thus work done in the workshop or yard of the contractor, in fitting materials for use in the building, is labor or work performed in the erection of the building.

5500 Coastal Highway, 305 Md. at 539. The Court of Appeals further cited the language of Woodson Bend, Inc. v. Masters' Supply, Inc., 571 S.W.2d 95 (Ky. App. 1978), wherein the Court observed that "[t]he protection afforded by the Kentucky mechanic's [sic] lien law extends to the materialman who furnishes material to a remote subcontractor, away from the job site, so long as the material is ultimately used to improve the property involved ..." (Emphasis added). Judge Smith, speaking for the Court of Appeals, concluded that "[w]e do regard as significant the fact that these materials were incorporated into the building of Tiffanie By The Sea."

In the case sub judice, Appellee had a contract with Appellant under the statute in which the former directed Marvin to ship the windows directly to the job site as indicated in the invoice to R Lumber. Significantly, the lesson of 5500 Coastal Highway is that, when materials are specially designed and delivered to the property and are incorporated into the structure, the mechanics' lien is available to the supplier of those materials. The only caveat is the holding in 5500 Coastal Highway was language from C & W Elec. v. Casa Dorado Corp., 34 Colo. App. 117, 523 P.2d 137 (1974), in which a mechanics' lien was disallowed when work was not performed "at the instance of the owner or any other person acting by his authority." 34 Colo. App. at 120, 523 P.2d at 139.

Thus, any order for materials filled prior to the execution of an agreement with Appellant or any stock items not specifically designed for incorporation into Appellant's property would not have provided the basis for a mechanics' lien. As Appellee points out, Appellant's only insulation from such claim by Appellee is a release of the lien, pursuant to R.P. 9-114(a).

II

Appellant next contends that the amended petition to establish a mechanics' lien as defective in that it was filed over 180 days after the materials were delivered on June 9, 1995, that it inadequately described the property, that it failed to affirmatively assert that the materials alleged to have been furnished were part of the construction or erection of a new building or the improvement of an existing building to the extent of twenty-five percent, and that it failed adequately to describe the materials alleged to have been furnished as well as the name of the person for whom the materials were alleged to have been furnished. Appellant argues that the most significant of the defects is that the amended petition was filed over 180 days after the date the materials were alleged to have been furnished. Appellee, citing Md. Rule BG72, asserts that the amended petition did not increase the amount of the claim or materially alter the description of the land and was therefore clearly permissible under the applicable rule.

The amendment occurred after the 180 days had past, but the original petition was filed before the expiration of 180 days. Maryland Rule BG72 provides:

Pleadings in an action filed under this Subtitle may be amended pursuant to Rule 2-341 except that after the expiration of the period within which notice of the lien claim must be given, or the petition to establish the lien must be filed if notice is not required, no amendment shall be permitted which will (1) increase the amount of the claim or (2) materially alter the description of the land.



From the above, it is pellucid that the amendment in the case before us did not increase the amount of the claim or materially alter the description of the land and the amended petition was therefore clearly permissible. The trial judge did not err.

III

Appellant finally contends that Appellee's right to enforce the lien has expired as a matter of law because Appellee failed to file a petition to enforce the lien within one year from the date of the filing of the amended petition to establish a mechanics' lien. Appellant initially asserts that the issue could not have been decided by the trial court, ostensibly because the year had not expired at the time of the hearing.(1)

Appellee further contends that a Petition to Enforce Mechanics' Lien has no been filed because there was a side agreement that Appellant would place the judgment due into the court registry pending appeal. Appellee notes that Appellant has paid $24,935.51 leaving a balance of $4,000 unpaid. Appellee further posits that it is entitled to the full amount of the judgment should it prevail on this appeal. At oral argument before this Court, Appellee reiterated that there was a side agreement between the parties that the judgment would be deposited into the court registry and it was Appellee's belief that the monies in the court registry represented funds earmarked to satisfy the judgment in the event Appellee prevailed on this appeal. Appellee additionally, at oral argument before us, asserted that the Petition to Enforce the Mechanics' Lien was inapplicable to the facts of this case because Appellant has, in fact, paid the judgment, albeit into the court registry, thereby obviating the need to enlist the aid of R.P. 9-109 of the mechanics' lien statute. In other words, the money deposited into the court registry is there simply awaiting adjudication by this Court of the issues raised by Appellant regarding the validity of the mechanics' lien in which case the funds simply be paid to Appellee upon a determination that the lien was valid.

Appellant, on the other hand, citing R.P. 9-109 claims that Appellee's right to enforce the mechanics' lien granted by the Circuit Court has expired as a matter of law. Appellee, in oral argument before this Court, asserted that there was no side agreement with respect to the monies deposited into the court registry, but rather an understanding between the parties that the sum ordered deposited by the Court was to serve as a substitute to a supersedeas bond and that Appellee has not been relieved of the obligation to file the Petition to Enforce the Mechanics' Lien by reason of that deposit.

As Appellee points out, this issue could not have been tried and decided by the lower court because the hearing occurred prior to the one year anniversary on January 3, 1997. As such, the issue was neither raised, nor tried and decided, in the lower court and is not therefore properly before us. Md. Rule 8-131. Accordingly, as we see it, this appeal is concerned only with the validity of the mechanics' lien. The issue of whether the Petition to Enforce is a precondition to recovery in this case must be determined by the lower court, having heard the arguments presented by the parties in their briefs and before us in oral argument.



JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED.



COSTS TO BE PAID BY APPELLANT.

1. Amended petition to establish a mechanics' lien was filed on January 2, 1996 and, on July 31, 1996, the Circuit Court for Anne Arundel County granted the mechanics' lien in favor of Appellee in the amount of $28,935.51. The trial judge filed an order on August 19, 1996 memorializing an agreement between plaintiff and defendant to place the amount of the lien into the court registry. The appeal in the instant case was filed on August 28, 1996.