Present: All the Justices
CAROLINA BUILDERS CORPORATION
v. Record No. 980519 OPINION BY JUSTICE CYNTHIA D. KINSER
February 26, 1999
CENIT EQUITY COMPANY
FROM THE CIRCUIT COURT OF YORK COUNTY
Thomas B. Hoover, Judge
In this appeal, we decide two issues: (1) the date
from which the 150-day limitation period in Code § 43-4 is
calculated for purposes of determining what sums can be
included in a memorandum of mechanic’s lien; and (2)
whether including only sums due for labor performed or
materials furnished during the 150-day limitation period is
a prerequisite for perfecting a mechanic’s lien, thereby
invalidating a lien that includes sums due for labor
performed or materials furnished prior to the 150-day
period. Because we conclude that the 150-day limitation
period is computed from the last day that labor is
performed or material is furnished to a job preceding the
filing of a memorandum of mechanic’s lien and that
including only labor and materials furnished during the
150-day limitation period is a prerequisite for perfecting
the lien, we will affirm the judgment of the circuit court
invalidating a mechanic’s lien.
I.
Carolina Builders Corporation (Carolina Builders)
filed a memorandum of mechanic’s lien on July 29, 1996,
against a certain tract of real estate located in York
County for sums owed to Carolina Builders for materials
that it had furnished for construction of a residential
dwelling on the property. Subsequently, on January 27,
1997, Carolina Builders filed a bill to enforce the
mechanic’s lien and named Cenit Equity Company (Cenit) as
one of the defendants.
After conducting discovery, Cenit filed a petition to
declare the mechanic’s lien invalid pursuant to Code § 43-
17.1 1 and a motion for summary judgment. Cenit asserted
that the mechanic’s lien sought to be enforced by Carolina
Builders was invalid under Code § 43-4 because it included
sums due for materials furnished more than 150 days prior
to the last date on which labor was performed or material
was furnished to the job preceding the filing of the
memorandum.
1
Code § 43-17.1 provides, in pertinent part:
Any party, having an interest in real property
against which a lien has been filed, may . . .
petition the court of equity having jurisdiction . . .
to hold a hearing to determine the validity of any
perfected lien on the property. . . . If the court
finds that the lien is invalid, it shall forthwith
order that the memorandum or notice of lien be removed
from record.
2
At a hearing on November 6, 1997, the parties
stipulated the following facts:
1. Carolina Builders filed the memorandum of
mechanic’s lien on July 29, 1996.
2. The memorandum of mechanic’s lien included sums
due for materials furnished by Carolina Builders from
December 6, 1995, through April 16, 1996.
3. May 23, 1996, was the last day that Carolina
Builders furnished materials to the job prior to
filing the memorandum of mechanic’s lien.
4. Counting back from May 23, 1996, the 150-day
period ended on December 25, 1995.
5. The memorandum of mechanic’s lien included amounts
owed for materials furnished prior to December 25,
1995, specifically from December 6 through 15, 1995.
After considering memoranda and argument by the
parties, the circuit court determined that the 150-day
period must be calculated back from May 23, 1996, the last
day that Carolina Builders furnished materials to the job
immediately preceding the date that it filed the
memorandum. Thus, the court concluded that the mechanic’s
lien violated Code § 43-4 because it included amounts owed
to Carolina Builders for materials provided to the job
prior to the 150-day period. In a final decree dated
December 18, 1997, the court held that the mechanic’s lien
was invalid and unenforceable, and granted summary judgment
in favor of Cenit. Carolina Builders appeals.
II.
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Code § 43-4 contains two distinct time limitations.
The first one requires that a memorandum of mechanic’s lien
be filed “not later than ninety days from the last day of
the month in which [the lien claimant] last performs labor
or furnishes material, and in no event later than ninety
days from the time such building, structure, or railroad is
completed, or the work thereon otherwise terminated.” Code
§ 43-4. No one disputes that Carolina Builders complied
with this 90-day rule. It is the second limitation that is
at issue in this appeal. That provision specifies that
“[t]he lien claimant may file any number of memoranda but
no memorandum . . . shall include sums due for labor or
materials furnished more than 150 days prior to the last
day on which labor was performed or material furnished to
the job preceding the filing of such memorandum.” Code
§ 43-4.
Carolina Builders’ memorandum of mechanic’s lien
included sums due for materials furnished from December 6,
1995, through April 16, 1996. Therefore, it argues that
the 150 days should be counted back from April 16 rather
than from May 23, 1996, even though the latter date was
when Carolina Builders last delivered materials before
filing the memorandum. In other words, Carolina Builders
asserts that the last date actually included in the
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mechanic’s lien for materials furnished to the job should
be the operative date from which to calculate the 150-day
limitation period set out in Code § 43-4. We do not agree.
We have previously stated that Code § 43-4 is “clear
and unambiguous.” Dominion Trust Co. v. Kenbridge Constr.
Co., Inc., 248 Va. 393, 396, 448 S.E.2d 659, 660 (1994).
If the statute as written is clear on its face, this Court
will look no further than the plain meaning of the
statute’s words. City of Winchester v. American Woodmark
Corp., 250 Va. 451, 457, 464 S.E.2d 148, 152 (1995). In
applying the plain meaning rule, this Court constantly
strives to determine and give effect to the intention of
the legislature. Barr v. Town & Country Properties, Inc.,
240 Va. 292, 295, 396 S.E.2d 672, 674 (1990).
The statute plainly states that the memorandum of
mechanic’s lien shall not include sums for materials
furnished more than 150 days prior to the last day that
material was furnished to the job preceding the filing of
the memorandum. In the present case, Carolina Builders
filed its memorandum of mechanic’s lien on July 29, 1996.
The last day that Carolina Builders delivered materials to
the job immediately before it filed its memorandum was May
23, 1996. Thus, under the clear terms of the statute, the
150 days must be counted back from May 23, 1996. To adopt
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Carolina Builder’s interpretation of the statute would, in
effect, rewrite the statute.
A correct application of the statutory 150-day
limitation period does not render meaningless the 90-day
filing limitation, as hypothesized by Carolina Builders,
but instead comports with the General Assembly’s desire to
prevent undisclosed or inchoate liens. Recognizing that
the 150-day limitation period might necessitate that a
claimant file multiple liens during the course of a
construction project, the General Assembly specifically
authorized the filing of “any number of memoranda.” Code
§ 43-4. The statute also allows a lien claimant to include
amounts that are “or will be due and payable.” Code § 43-
4.
The remaining issue is whether Carolina Builder’s
violation of the 150-day limitation rule renders its entire
mechanic’s lien unenforceable. The circuit court so held,
but Carolina Builders argues that the 150-day requirement
limits only the sums that can be recovered and is not a
prerequisite for perfecting the mechanic’s lien. Relying
on this Court’s decisions in West Alexandria Properties,
Inc. v. First Va. Mortgage & Real Estate Inv. Trust, 221
Va. 134, 267 S.E.2d 149 (1980); and First Nat’l Bank of
Martinsville v. Roy N. Ford Co., Inc., 219 Va. 942, 252
6
S.E.2d 354 (1979), Carolina Builders contends that, rather
than invalidating a lien, a trial court can reduce the
amount of a mechanic’s lien when the memorandum contains
excess sums.
Conversely, Cenit argues that all the requirements in
Code § 43-4, including the 150-day limitation period, are
prerequisites for perfecting a mechanic’s lien and must,
therefore, be strictly construed. According to Cenit,
Carolina Builders had an affirmative duty not to include
sums owed for materials furnished prior to the 150-day
“look back” period in its memorandum of mechanic’s lien.
Cenit also asserts that the decisions in West Alexandria
Properties and Bank of Martinsville are inapposite. We
agree with Cenit.
This Court has repeatedly stated that a mechanic’s
lien is in derogation of the common law and that the
statutes dealing with the existence and perfection of a
mechanic’s lien must, therefore, be strictly construed.
American Standard Homes Corp. v. Reinecke, 245 Va. 113,
119, 425 S.E.2d 515, 518 (1993); Rosser v. Cole, 237 Va.
572, 576, 379 S.E.2d 323, 325 (1989). “[U]nless [a
mechanic’s lien] is perfected within the proper time and in
the proper manner, as outlined by the statute, it is lost.”
Wallace v. Brumback, 177 Va. 36, 40, 12 S.E.2d 801, 802
7
(1941). In American Standard Homes, this Court
distinguished between perfection of a mechanic’s lien under
Code § 43-4 and enforcement of the lien pursuant to Code
§ 43-17. In doing so, we stated that the “provisions of
the enforcement statutes are to be construed liberally
while the requirements of the perfection statute are to be
construed strictly.” 245 Va. at 119, 425 S.E.2d at 518.
Code § 43-4 contains specific conditions that a lien
claimant must fulfill “in order to perfect the lien given
by § 43-3.” For example, the claimant must file the
memorandum within a specified time (the 90-day rule) in the
clerk’s office where the property is located and must
include certain information in the memorandum. The 150-day
limitation is included in these conditions. In contrast to
the 90-day rule, the 150-day requirement is not a filing
deadline. Instead, it is a limitation on how far back in
time a lien claimant can reach in any given memorandum for
sums owed. Therefore, we conclude that the 150-day
limitation period is one of the prerequisites required by
Code § 43-4 in order to perfect a mechanic’s lien. 2 Thus,
2
Code § 43-15, which pertains to inaccuracies in the
memorandum or in the description of the property to be
covered by the lien, is not applicable to the present
situation.
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the circuit court did not err when it held that Carolina
Builders’ mechanic’s lien was invalid and unenforceable.
In reaching this result, we are mindful that we
allowed excess sums to be excluded without invalidating the
mechanic’s liens in West Alexandria Properties and Bank of
Martinsville. In each of those cases, the memorandum of
mechanic’s lien included amounts attributable to labor
performed and materials furnished not only for improvements
on the liened land but also for improvements on additional
property. However, the excess sums claimed in the
memoranda did not violate any specific statutory provision
in effect at that time with regard to perfecting a lien. 3
In contrast, we invalidated the mechanic’s liens in
Woodington Elec., Inc. v. Lincoln Sav. & Loan Ass’n, 238
Va. 623, 385 S.E.2d 872 (1989), and in Rosser, 237 Va. 572,
379 S.E.2d 323. In those cases, the lien claimants had
described property in the memoranda for which no labor or
materials had been furnished. There was excess property
3
When this Court decided Kenbridge Constr., the 150-
day requirement was in effect, but it was not at issue in
that case. Although we acknowledged “that a trial court,
in certain limited circumstances, may reduce the amount of
a mechanic’s lien rather than invalidate the lien,” we did
not afford Kenbridge that relief. 248 Va. at 399, 448
S.E.2d at 662. Kenbridge had not requested that the trial
court reduce the lien so as to include only the value of
labor and materials furnished to the liened property, and
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rather than excess sums included in the memoranda. Noting
that Code § 43-4 requires the lien claimant to include in
the memorandum a brief description of the property on which
the lien is claimed, we stated in Woodington that “[i]t is
the mechanic’s duty to place his lien upon the property on
which he worked and no more.” 238 Va. at 634, 385 S.E.2d
at 878. In other words, the lien claimant had violated one
of the specific provisions contained in Code § 43-4.
Carolina Builders did not merely claim a larger sum
than its proof would perhaps support. That kind of over-
inclusiveness is a traditional problem faced by a landowner
and one that a trial court resolves when determining how
much of a claimed lien should be allowed. Id. at 633-34,
385 S.E.2d at 877-78. Instead, Carolina Builders violated
the explicit statutory requirement that its memorandum
shall not include sums for materials furnished more than
150 days prior to the last day on which material was
furnished to the job preceding the filing of the
memorandum. Code § 43-4.
For these reasons, we will affirm the judgment of the
circuit court.
Affirmed.
_____________________
we doubted that it would have been able to make that
allocation. Id.
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