Opinion
C.A. No. 99L-02-100(VAB)
Submitted: August 15, 2000
Decided April 27, 2001
Defendant Eastern States Development Company, Inc.'s Motion to Dismiss and Plaintiff American East Explosives, Inc.'s Motion to Amend.
Motion to Dismiss GRANTED.
Motion to Amend DENIED.
John James Conly, Esquire, Attorney for Plaintiffs.
M. Duncan Grant, Esquire, and Andrea B. Unterberger, Esquire Attorneys for Defendant.
OPINION
This case involves an allegedly defective mechanics' lien action affidavit. Defendant has filed a motion to dismiss the mechanics' lien, claiming that Plaintiff's affidavit was insufficient. Plaintiff has filed a motion to amend its affidavit, citing Article IV § 21 of the Delaware Constitution of 1897. For the reasons that follow, Defendant's motion to dismiss is GRANTED, and Plaintiffs motion to amend is DENIED.
I. FACTS
Plaintiff American East Explosives, Inc., a subcontractor, supplied explosives and related services for Defendant Eastern States Development Company, Inc., a general contractor ("Defendant" or "Eastern States"). On February 26, 1999, Plaintiff filed a Complaint and Statement of Claim for Mechanics' Lien seeking an in rem mechanics' lien against property owned by Eastern States. The affidavit that accompanied the statement of claim for the mechanic's lien in the original Complaint and Amended Complaint stated that the affiant, Michael J. Pruss, has "personal knowledge of all of the facts set forth in the Complaint [or Amended Complaint], and to the best of my knowledge, such facts are true and correct."
Defendant filed a motion to dismiss itself and its property from the mechanics' lien action, claiming that the affidavit failed to meet the statutory requirements of 25 Del. C. § 2712(c) by the inclusion of the language "to the best of my knowledge." Plaintiff filed a Motion to Amend its affidavit to comply with the statute by eliminating the limiting language. At oral argument, this Court requested briefing on the issue of the applicability of Article IV § 21 of the Delaware Constitution of 1897 to the pending motions.
II. STANDARD OF REVIEW
In considering a motion to dismiss, the Court must accept as true all allegations contained in the plaintiff's complaint. The test of sufficiency is whether the plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint.
Plant v. Catalytic Constr. Co., Del. Super., 287 A.2d 682, 686 (1972), affd, Del. Supr., 297 A.2d 37 (1972).
Spence v. Funk, Del. Supr., 396 A.2d 967, 968, (1978).
III. DISCUSSION
The issue in this case is whether or not Article IV § 21 of the Delaware Constitution of 1897 provides the Court with the authority to allow Plaintiff to amend the affidavit.Defendant argues that the history of Article IV § 21 shows that its purpose was to allow the Court to modify pleadings or proceedings so that a litigant could avoid being sandbagged by his opponent when his cause was meritorious. Further, Defendant argues that on the rare occasions when Courts have used Article IV § 21 it was never cited in the context of mechanics' lien actions. Finally, Defendant argues that the Courts of this State have repeatedly indicated that the mechanics' lien statute is to be strictly construed without modification of its statutory requirements.
In response, Plaintiff argues that Article IV § 21 directly applies to this mechanics' lien action, because this is a "civil caus[e]" "pending" "before judgment" relating to "amendments in pleadings and legal proceedings" where an "error in any of them" [the affidavit] occurred. Further, Plaintiff argues that over a dozen cases in this State have invoked Article IV § 21 to permit amendments to pleadings in a variety of situations, and the fact that this provision has not been used to in a mechanics' lien action does not prohibit this Court from doing so now; further, any cases involving amendments of affidavits in mechanics' lien actions did not address Article IV § 21, and thus are not controlling precedent. Finally, Plaintiff argues that the trend of Courts is to decide cases on their merits on not on procedural technicalities, and to dismiss Plaintiffs action would violate that principle.
Plaintiffs argument overlooks the common thread running through all of the cited cases that have applied Article IV § 21: these cases have employed that provision only to amend common law action pleadings and proceedings, or as an example of the Superior Court's equitable powers. In the instant case, Plaintiff seeks to use Article IV § 21 to amend a purely statutory action's prerequisite — the mechanics' lien pleading requirement that the affidavit's facts be "true and correct" only with no limiting language. Not only has Article IV § 21 never been used to amend a mechanics' lien pleading, but it has never been used to modify any purely statutory cause of action. Thus, the question is not, as Plaintiff argues, whether this Court is prohibited from applying Article IV § 21 in the substantive area of mechanics' lien actions when it has been applied in other substantive areas; rather, whether this Court can apply Article IV § 21 to a purely statutory cause of action when it has only been used to amend common law actions.
Lycoming Fire Ins. Co. v. Bush, Del. Super., 40 A. 947 (1893) (amendment of answer in a contract action denied where plea in abatement was dilatory and unrelated to the merits of the case); MacFarlane v. Garrett, Del. Super., 49 A. 175 (1900) (allowing withdrawal of an answer for failing to allege malice in an action for malicious prosecution); Yates v. Philadelphia. B W. R. Co., Del. Super., 82 A. 27 (1906) (amendment of complaint granted in personal injury action to accord with the evidence adduced at trial); State ex rel. Brumley v. Jessup Moore Paper Co., Del. Super., 82 A. 540 (1912) (amendment not permitted after final judgment in the Superior Court); Philadelphia. B. W.R.R. v. Gatta, 85 A. 721 (1913) (amendment of pleading for wrongfiil death allowed after the statute of limitations expired and amendment relates back to original filing date); Morgan v. Ownbey, Del. Super., 100 A. 411 (1916) (citing Art. IV, § 21 as an example of the Superior Court's equitable powers and discretion); Console Master Speaker Corp. v Muskegon Wood Prod., 141 A. 109 (1928) and 138 A. 598 (amendment to complaint permitted to change named corporation to company; not involving a change of parties); Wyndham. Inc. v. Wilmington Trust Co., Del. Super., 58 A.2d 419, (1948) (amendment of complaint granted in an action of assumpsit to conform with the evidence presented at trial); Blaustein v. Standard Oil Co., Del. Super., 70 A.2d 716 (1949) (amendment of complaint in a breach of contract action allowed to permit a more favorable presentation of the claim); Saunders v. Creswell Roll Forming Co., Del. Super., 83 A.2d 697 (1951) (amendment of answer to allow plea of statute of limitations defense); Long v. Lee, Del. Super., 168 A.2d 536 (1960) (amendment of ad damnum clause in a negligence pleading where the jury awarded damages greater than plaintiffs requested in their complaint); ( Bellanca Corp. v. Bellanca, 169 A.2d 620 (1961) (amendment of complaint to state a claim in quantum meruit); Kenworthy v. Riley, Del. Super., C.A. No. 91C-10-042, 1994 WL 713884, Howard, Comm'r (Dec. 8, 1994) (amendment to claims for assault and battery permitted to add claims for negligence); New York State Higher Educ. Services Corp. v. Bonnister, Del. CCP, C.A. No. 93-05-003, 1996 WL 1581133, Howard, Comm'r (May 16, 1996) (citing Art. IV, § 21 for the proposition that final judgments may not be amended by the Superior Court except as to form).
This distinction is important. Here, the mechanics' lien statute and not the common law defines the pleading requirements. There is no cause of action but for the lien statute that controls their perfecting and enforcing. A mechanics' lien is a purely statutory creature, and the law under which the lien arises is in derogation of the common law and must be strictly construed and pursued. A title under a mechanics' lien is also purely statutory, and its validity depends on an affirmative showing that every essential statutory step in the creation, contrivance, or enforcement of the lien has been duly taken. The statutory provisions are mandatory and not merely directory, and the inability to comply with the statute means that a lien cannot be obtained because "the Court has no power to create exceptions where none exist." Delaware law is rich with the mandate that the mechanics' lien statute be strictly construed.
Carson Constr. Designs. Inc. v. Mott Associates, P.C., Del. Super., C.A. No. 92L-11-008, 1994 WL 89800, at *3, Graves, J. (Feb. 2, 1994) ( citing 53 Am. Jur. 2d, Mechanics' Liens § 168 (1970)).
Heitz v. Savers, Del. Super., 113 A. 901, 901-902 (1913); E. J. Hollingsworth Co. v. Contimental-Diamond Fiber Co., Del. Super., 175 A. 266, 268 (1934); Ceritano Brickwork, Inc. v. Kirkwood Indus., Inc., Del. Supr. 276 A.2d 267, 268 (1971).
Carson at *3 ( citing Warner Co. v. Leedom Construction Co., Del. Super., 93 A.2d 316, 319 (1952)).
Carson at *3 (citations omitted).
The Court does not write on the blank slate regarding amendments to mechanics' lien affidavits. The Supreme Court in Oscar George. Inc. v. Potts affirmed the dismissal of a mechanics' lien claim on the basis that the affidavit contained the words "to the best of his knowledge and belief." The Court in Oscar George. Inc. did not decide whether the affidavit could be amended to comply with the statute because that question was not before the Court. The Superior Court has addressed and repeatedly rejected the notion that an affidavit in a mechanics' lien action could be amended to cure minor defects.
115 A.2d 479 (1955).
A. Ralph Woodrow. Inc. v. Hudanish, Del. Super., C.A. No. 4457, 1975, Taylor, J. (1978) (Letter Op.) (denying a motion to amend affidavit language "true and correct to the best of his knowledge and belief"), aff'd Del. Supr., 385 A.2d 144 (1978); Construction by Franco v. Reed, Del. Super., C.A. No. 94L-09-20, 1994 WL 750306, Silverman, J. (Dec. 12, 1994) (noting the hardship of Woodrow but dismissing a mechanics' lien claim and denying a motion to amend an affidavit containing the words "to the best of his knowledge and belief"); Builders' Choice. Inc. v. Venzon, Del. Super., C.A. No. 95L-02-29, 1995 WL 264593, Quillen, J. (April 25, 1995) (Letter Op.)( citing Construction by Franco and dismissing claim because affidavit swore that the facts "are true and correct to the best of her knowledge, information, and belief").
While no case has addressed whether Article IV § 21 permits amending an affidavit in a mechanics' lien claim, the Court believes it does not. The constitutional concept of amending pleadings is embodied in Superior Court Civil Rule 15. While the purpose of Rule 15 is to encourage the disposition of litigation on the merits, there is also a need for certainty and strict compliance with the statutory form of mechanics' lien affidavits. The public policy of stare decisis also compels a finding that mechanics' lien affidavits are to be narrowly construed and not later amended.
For this Court to find that Plaintiff should be allowed to amend his affidavit based upon Article IV § 21 would be to impliedly overrule, or cast serious doubt upon, the many decisions respecting strict compliance with statutory affidavits, in mechanics' lien actions and in other statutes.
Oscar George. Inc., 115 A.2d at 481.
The Court does not feel at liberty to change the rule of strict construction of mechanics' lien affidavits which has been consistently followed in this State based upon Article IV § 21. Therefore, the complaint filed in this case was fatally defective and is insufficient to obtain a mechanics' lien. The Court notes that dismissing Plaintiffs mechanics' lien does not leave Plaintiff without effective recourse against Defendant Headwater Construction Co., to whom Plaintiff has obtained a judgment against.
IV. CONCLUSION
For the foregoing reasons, Defendant Eastern States Development Company, Inc.'s Motion to Dismiss is GRANTED, and Plaintiffs Motion to Amend is DENIED.