Riverview Muir Doran, LLC v. JADT Development Group, LLC

ANDERSON, Paul H., Justice

(dissenting).

I respectfully dissent. I do so because I conclude that the court has failed to apply the plain language of Minn.Stat. § 514.05 (2008) and added language to the statute that the legislature has not seen fit to enact.

The sole issue presented on appeal is the interpretation of Minn.Stat. § 514.05, subd. 1 (2008), which in pertinent part reads as follows:

As against a bona fide purchaser, mortgagee, or encumbrancer without actual or record notice, no lien shall attach prior to the actual and visible beginning of the improvement on the ground, but a person having a contract for the furnishing of labor, skill, material, or machinery for the improvement, may file for record with the county recorder of the county within which the premises are situated, or, if claimed under section 514.04, with the secretary of state, a brief statement of the nature of the contract, which statement shall be notice of that person’s lien only.

(Emphasis added.) The question before us is what a bona fide mortgagee of real property must have “actual” notice of in order for a mechanic’s lien to “attach prior to the actual and visible beginning of the improvement on the ground.” See id.

The court acknowledges that appellant KKE Architects, Inc., could have preserved its mechanic’s lien by providing record notice. Indeed, the statute is clear that KKE could have provided record notice of its lien by filing nothing more than “a brief statement of the nature of the contract.” Minn.Stat. § 514.05, subd. 1. Had KKE filed “a brief statement of the nature of the contract,” 1 the burden would have been on future purchasers, mortgagees, and encumbrancers like First Choice Bank and Darg, Bolgrean, Menk, Inc., to inquire further into KKE’s claim. 2 But *176 the court then proceeds to require KKE to have provided the mortgagees with actual notice of much more — notice of “past, lien-able services for which a lien claimant has not been paid.” Short of KKE having provided such notice, the court concludes that the mortgagees had no duty to inquire.

The court’s interpretation of MinmStat. § 514.05, subd. 1, in essence adds words to the statute so it now effectively reads as follows: “As against a bona fide purchaser, mortgagee, or encumbrancer without actual notice of past, lienable services for which the lien claimant has not been paid or record notice of the nature of the lien claimant’s contract.” (Additions emphasized.) What the court has done is add language to the statute that the Legislature has not seen fit to enact. Adding such language is contrary to the principles of statutory construction we have so often espoused. See, e.g., Green Giant Co. v. Comm’r of Revenue, 534 N.W.2d 710, 712 (Minn.1995) (in construing statutes, courts are not to supply that which the Legislature purposefully omits).

When interpreting statutes, we are to begin with the language of the statute and, if that language is plain and unambiguous, we are to follow it. Munger v. State, 749 N.W.2d 335, 338 (Minn.2008) (citing Minn. Stat. § 645.16 (2006)). 3 I interpret the plain language of Minn.Stat. § 514.05, subd. 1, to require KKE to have provided actual notice of nothing more than what it *177 may provide record notice of, namely, “the nature of the contract” between it and the project owner. KKE provided the mortgagees with actual notice of the nature of its contract, and more. By doing so, KKE has complied with the plain language of the statute. Therefore, I would reverse the court of appeals and remand to the district court for reinstatement of the judgment in favor of KKE.

I respectfully dissent.

. According to the court, "KKE admits that there was no contract with the developer for the architectural services at issue.” There may have been no written contract between KKE and developer JADT. But I find it incredulous to suggest that KKE invested 8,500 hours of work over the course of six years, amounting to hundreds of thousands of dollars, uninvited.

. The court states that “[bjecause mechanic’s lien statutes contain no requirement that services be performed pursuant to a contract, the Legislature could not possibly have intended that 'actual notice’ means actual notice of ‘the nature of the contract.’ ” But Minn.Stat. § 514.01 (2008) says just the opposite — if there is no contract, there is no right to payment, and no right to a lien:

*176 Whoever performs engineering or land surveying services with respect to real estate, or contributes to the improvement of real estate by performing labor, or furnishing skill, material or machinery for any of the purposes hereinafter stated, whether under contract with the owner of such real estate or at the instance of any agent, trustee, contractor or subcontractor of such owner, shall have a lien upon the improvement, and upon the land on which it is situated. ...

(Emphasis added.) The court interprets the emphasized language to mean that no contract — whether written or oral, express or implied — is required between the mechanic's lien claimant and anyone — whether owner or the owner’s agent, trustee, contractor, or subcontractor. I can do no more than reiterate my point: if there is no contract — no written, oral, express, or implied contract — between the mechanic's lien claimant and any other person or entity — not the owner, not the owner's agent, trustee, contractor, or subcontractor — then the mechanic’s lien claimant has no right to payment.

The court also suggests that "[i]f a contract were a necessary precondition” to the existence of a mechanic’s lien, then the reference to "contract” in section 514.05, subdivision 1, and elsewhere in chapter 514 "would be superfluous.” But section 514.05, subdivision 1, provides for the preservation of the right to a mechanic’s lien by the filing of "a brief statement of the nature of the contract” prior to the actual and visible beginning of the improvement on the ground. The whole point of the provision would therefore appear to be that a contractor or subcontractor can preserve its right to a mechanic’s lien once work begins, by filing notice of nothing more than the existence of its contract before work begins. Indeed, before its work begins, what more could a contractor file notice of?'

Finally, the court suggests that my interpretation of section 514.05 cannot stand because it is contrary to our court’s interpretation of the provision "for over 80 years.” But we have not been asked to interpret section 514.05 since 1982, and more importantly not since the language of the statute changed — in ways that I consider to be significant. In light of the Legislature's amendment of the statute, the length of the time between this case and our prior case law should impress no one.

. The court takes the dissent to task for ignoring our prior case law. In doing so, the court itself ignores the fact that after those cases were decided, the Legislature changed the wording of the statute. See N. States Power Co. v. Comm’r of Revenue, 571 N.W.2d 573, 575-76 (Minn.1997) (when the Legislature changes the statute, courts are to presume that the Legislature intends to change the law). This is a fact I cannot ignore, and one of the reasons I dissent.