Hurst v. v & M of Virginia, Inc.

Murphy, C.J.,

dissenting:

The Court holds today that a completed modular unit in a shopping center does not constitute a "building” within the meaning of Maryland’s mechanics’ lien law. The Court holds that the shopping mall itself is the "building” and in order for any lien to attach workmen must have improved the entire mall to the extent of 25% of its value. I respectfully dissent.

Maryland’s mechanics’ lien law was enacted to encourage construction by ensuring that artisans, materialmen, contractors, suppliers, laborers and others who enhanced the value of a project received payment for their toil. Barry Properties v. Fick Bros., 277 Md. 15, 18, 353 A.2d 222 (1976). Put another way:

"The law protected labor, in the early 19th century sense of the word: those who added tangible value to real assets. The law preferred their claims over those of general creditors. Not least of all, the lien was intended to help the land owner .... The law promised a safe and immovable form of collateral to those who supplied the materials and labor. The lien was a kind of boot-strap finance .. ., almost a subsidy, almost a kind of government credit to *589encourage building and improvement of land.” Friedman, A History of American Law (1973) at 214.

Indeed, passage of mechanics’ lien laws has been described as one of the major legislative contributions to 19th century American economic growth. Hurst, Law and the Conditions of Freedom in the Nineteenth Century United States, at 13-14 (1964). Furthermore, it is a well-settled principle in Maryland that the mechanics’ lieu law is "remedial and shall be so construed” in favor of lien claimants. § 9-112; Barry Properties v. Fick Bros., supra, at 36; Freeform Pools v. Strawbridge, 228 Md. 297, 301, 179 A.2d 683 (1962); Johnson v. Metcalfe, 209 Md. 537, 121 A.2d 825 (1956); T. Dan Kolker, Inc. v. Shure, 209 Md. 290,121 A.2d 223 (1956) (the mechanics’ lien law was passed to protect materialmen, and is to be construed in the most liberal and comprehensive manner in their favor).

In light of this historical background, and the public policy inherent in the mechanics’ lien law, I fail to comprehend the majority’s ruling that appellant cannot obtain a lien against appellees’ leasehold interest. Six years ago, as noted by the majority, in Noone Elect. Co. v. Frederick Mall, 278 Md. 54, 59, 359 A.2d 91 (1976), we rejected a subcontractor’s attempt to enforce a lien against the owner of a shopping center. There, the owner of the Frederick Mall employed a builder to construct "public areas, access ways, the enclosed mall and 'shells’ of preformed and reinforced concrete, each facing the mall, consisting basically of 'modules’ having three walls, a floor and a roof, which could be completed as stores to meet the needs of the particular tenant.” Id. at 55-56. Two tenants of these unfinished modules engaged a general contractor to complete their leased premises. The general contractor subcontracted the electrical work to Noone Elect. Co. When Noone was not paid by the general contractor it filed and sought to enforce a mechanics’ lien against the entire mall. The owner of the mall asked for summary judgment, arguing that since the work done and materials furnished were supplied pursuant to contracts with *590individual tenants, the lien could not attach to the entire complex. The trial judge granted the owner’s summary judgment motion. On appeal, we affirmed, holding that "Noone’s lien could not be asserted against the Owner, but only against the tenants’ leasehold interests,” Id. at 59. The Court’s decision was based in part on then existing Art. 63, § 9, which stated:

" 'Where a building shall be erected by a lessee or tenant for life or years ... the lien shall only apply to the extent of the interest of such lessee or tenant.’ ” Id. at 57.1

Applying this statutory provision, the Court found that "the lien attaches only to whatever interest or estate is held by the person liable for the cost of construction or improvement.” Id. at 58. Since the owner was not responsible for the work performed on the individual modules, Noone’s lien could not attach to the owner’s estate. An integral part of the Noone ruling was the implicit recognition that an uncompleted store in a shopping center was a "building” for the purposes of the mechanics’ lien law. The majority dismisses the Noone decision because "it did not address the question presented here.” Plainly, Noone did not address "the question” because there was no question that the lienor’s recourse, if not against the owner, had to be against the tenant. Surely, the Noone Court would not have held that the lienor should seek relief from the tenant if that is not what it meant.

In Freeform Pools v. Strawbridge, 228 Md. 297, 179 A.2d 683 (1962), the Court held that a swimming pool could not be considered a "building” within the contemplation of the mechanics’ lien law. We there noted:

"There is no definition in the mechanics’ lien law of *591the word 'building.’ Taken in its broadest sense it can mean only an erection intended for use and occupancy as a habitation, or for some purpose of trade, manufacture, ornament, or use, such as a house, store, or a church.”
228 Md. at 301.

I think the module in this case, considered in a broad sense as our cases require, is indeed a "building” subject to the provisions of the mechanics’ lien laws. Black’s Law Dictionary (4th ed. 1951), quoted in Freeform Pools, variously defines a "building” as "'[A] fabric, structure, or edifice, designed for the habitation of men or animals or for the shelter of property.’ ” American Heritage Dictionary of the English Language defines a "building” as "Something that is built; a structure; an edifice.” Webster’s Third New International Dictionary (1963) defines a "building” as :

"a thing built; a: a constructed edifice designed to stand more or less permanently, covering a space of land, usu. covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure — distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.”

The majority’s constrictive definition of a "building” in this case ignores the teaching of Noone Elect. Co. v. Frederick Mall, supra; indeed, it casts adrift all potential lien claimants of modules in shopping malls and other multi-unit structures constructed to the specifications of tenant-lessees. Because I believe that today’s decision seriously *592impairs the broad remedial intent of the mechanics’ lien law, I would reverse the judgment of the lower court.2

Judge Cole has authorized me to state that he concurs in the views expressed herein.

. Insofar as pertinent, the recodification of this provision has retained the same meaning. Maryland Code (1974, 1981 Repl. Vol.) § 9-103 (c) (2), Real Property Article. (“If a building is erected, or repaired, rebuilt or improved ... by a tenant for life or years or by a person employed by the tenant, any lien ... applies only to the extent of the tenant’s interest.”)

. In the penultimate paragraph of the majority opinion, the Court suggests that the word "building” in the mechanics’ lien statute may be broad enough to encompass "specific space” in a shopping mall leased by a tenant who proceeds with construction "from foundation to roof with attendant walls....” While I applaud the majority’s effort to import more flexibility into the word "building,” vis-a-vis modular units within shopping malls, it is of no aid to the appellant in this case.