NES Rentals v. Maine Drilling & Blasting, Inc.

Lenk, J.

(dissenting). I write separately because I believe that the court’s decision strays from both clear statutory language and well-established precedent. In so doing, the court unnecessarily introduces a level of unpredictability into the requirements for compliance with the mechanic’s lien statute, an area of law in which those affected rely on the certainty that the statute is designed to provide. See Golden v. General Bldrs. Supply, 441 Mass. 652, 659-600 (2004) {Golden).

*871“Because a mechanic’s lien is purely a creation of statute, we have consistently required exact compliance with the [mechanic’s lien] statute in order to create, perfect, and enforce such a lien.” Id. at 654. “Just as strict compliance with the [statutory] provisions is required to perfect the lien,... so may a person in interest dissolve the lien by strictly adhering to [G. L. c. 254, § 14, as amended through St. 2000, c. 400, § 2 (§ 14)].” National Lumber Co. v. United Cas. & Sur. Ins. Co., 440 Mass. 723, 729 (2004), citing National Lumber Co. v. Le Francois Constr. Corp., 430 Mass. 663, 666 (2000). In applying the relation back rule, Mass. R. Civ. R 15 (c), 365 Mass. 761 (1974) (rule 15 [c]), to permit this claimant to file its amended complaint outside of the ninety-day period within which, under § 14, a claimant is to enforce a lien dissolution bond,1 the court today overlooks this well-established rule of strict compliance and renders this statutory deadline largely superfluous.

As the court recognizes, an amendment to the complaint that the claimant originally brought to enforce the then undissolved lien may constitute the “civil action” contemplated in § 14; the parties agree that an entirely new case need not be brought by a claimant in order to enforce the lien dissolution bond. Ante at note 9. The issue, then, is not — as the court’s statutory analysis, ante at 867-869, would suggest — whether an amended complaint will suffice, but when the amended complaint must be filed. In reliance upon the relation-back provisions of rule 15 (c), the court concludes that it need not be filed within the ninety-day period mandated by § 14. To the extent that the court justifies this result by suggesting that it permits claimants to recover on a lien dissolution bond “without having to initiate an entirely new case,” ante at 869, it answers a question that has not really been asked.

The question that is before us is whether the claimant’s amended complaint must be “commenced,” i.e., filed with the court, see Nett v. Bellucci, 437 Mass. 630, 643-644 (2002), and Mass. R. Civ. P. 3, as amended, 385 Mass. 1215 (1982), within *872ninety days after the claimant receives notice of the bond.2’3 In applying rule 15 (c) in these circumstances, the court permits an amended complaint, at whatever vague and uncertain point beyond the ninety-day deadline it may ultimately be filed with the court, to take on the date of the original complaint. The court does so because it discerns no incompatibility between the rule and the statute’s express ninety-day requirement. I think otherwise, and conclude that the statute must supersede the rule. See Hermanson v. Szafarowicz, 457 Mass. 39, 45 (2010) (“Where there is such an irreconcilable conflict between a court rule and a statute, the statute supersedes the rule”); Golden, supra at 655 (procedural rules apply “[a]bsent some incompatibility” with statute).

The upshot of the court’s decision is to render the ninety-day period set forth in the statute largely superfluous, a result that is ordinarily to be avoided. See Trace Constr, Inc. v. Dana Barros Sports Complex, LLC, 459 Mass. 346, 352 (2011), quoting Bynes v. School Comm, of Boston, 411 Mass. 264, 268 (1991) (“It is [an] elementary rule of statutory construction that a statute should not be read in such a way as to render its terms meaningless or superfluous”). The ninety-day deadline to enforce a lien dissolution bond will now apply only when a new civil action must be initiated by the claimant, e.g., when a bond is filed in the period after the filing of a lien and before the commence*873ment of an original civil action to enforce it, or when the dissolution bond is filed before the lien attaches. See G. L. c. 254, § 12, as amended through St. 2002, c. 400, § 1. As to everyone else,4 the date by which such claimants must file an amended complaint is left essentially indeterminate, dependent as it is upon whether leave to amend, whenever sought, will ultimately be granted by a court.

It is hard to imagine that this is what the Legislature intended in a statute otherwise replete with precise statutory deadlines with which we have routinely required exact compliance. See Gale v. Blaikie, 129 Mass. 206, 209 (1880) (“The lien is not a common-law right, but a creature of the statute. It can be preserved and enforced only by a strict compliance with the requirements of the statute. There are no equities to be involved in aid of it.”). Certainly, nothing in the language of § 14 itself suggests that the Legislature intended the ninety-day period to apply only to a limited class of claimants seeking to enforce a lien dissolution bond; it does not on its face exempt from the category of claimants, as the court does, those who previously filed civil actions to enforce a hen. Had the Legislature wished to do so, it could easily have said as much. See Leary v. Contributory Retirement Appeal Bd., 421 Mass. 344, 348 (1995) (“where the statute is detailed and precise, we regard [an] omission as purposeful”). In the absence of such a provision, the procedural rule regarding relation back of an amended complaint cannot nullify the clear and contradictory statutory deadline. Cf. Friedman v. Board of Registration in Med., 414 Mass. 663, 665 (1993) (where “there is a statutory appeal period” it “cannot be overridden by a contrary rule of court”).

Strict compliance with the express language of the mechanic’s lien statute promotes certainty, uniformity of application, and predictability for all whose interests are affected by it; the vagueness, imprecision and uncertainty introduced by the court’s novel and relaxed approach does those interests no favors. Given *874this, I conclude that rule 15 (c) does not “peaceably coexist,” Golden, supra at 658, with the express language of § 14 and the former must yield to the latter. I respectfully dissent.

“The claimant may enforce the bond by a civil action commenced within ninety days after the later of the filing of the statement required by section 8 or receipt of notice of recording of the bond.” G. L. c. 254, § 14, as amended through St. 2000, c. 400, § 2 (§ 14).

I agree with the court that the mere service of a motion to amend a complaint on an opposing party does not constitute commencement of an action within the meaning of § 14. Ante at 864.

If the amended complaint is not itself filed with the court within the ninety-day period, the filing with the court in that ninety-day window of the motion to amend the complaint should be deemed to commence the § 14 civil action. See Nett v. Bellucci, 437 Mass. 630, 643-644 (2002). Doing so relieves the claimant from dependence on the speed with which a court may address the motion to amend and leaves in the claimant’s hands the obligation and ability timely to commence the § 14 civil action. While the claimant must of course factor into the ninety-day window the brief period of time within which an opposing party may serve any opposition papers pursuant to Rule 9A of the Rules of the Superior Court (2012), it remains the case that, by filing the amended complaint or the motion to amend, there is an ascertainable date that is within the statutory timeframe. This is quite unlike the indeterminate date, outside the statutory period, when an amended complaint may be filed in the wake of today’s decision. Here, the claimant did not file either the motion to amend the complaint or the amended complaint itself until well after the ninety-day deadline had passed.

Since the statute requires claimants seeking to enforce a mechanic’s lien to commence a civil action within a narrow timeframe lest the lien be dissolved, G. L. c. 254, § 11, as amended through St. 1996, c. 364, § 11, most claimants later seeking to enforce a lien dissolution bond, G. L. c. 254, § 14, will already have brought a civil action and will likely seek to amend that original complaint.