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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 81 SEPTEMBER TERM, 1998

SCOTT JEROME, ET AL. v. WINKLER CONSTRUCTION COMPANY, INC.

Harrell, Bell, Rosalyn B. (Retired, specially assigned) Bishop, John J., (Retired, specially assigned) JJ. Opinion by Bishop, J.

Filed: November 4, 1998

Scott Jerome, Barbara Chait, and Richard J. Musser, t/a Musser Construction, Inc. appeal the action of the Circuit Court for Carroll County in granting a Final Order Establishing Mechanic's Lien and denying certain post-judgment motions in favor of Winkler Construction Company, Inc., appellee. Appellants ask: I. II. Whether the trial court erred when it granted the Mechanic's Lien; Whether the trial court erred when it refused to vacate the Final Order and to allow Appellants to file a Verified Answer;

III. Whether the trial court erred when it denied Appellants' Motion to file a Mechanic's Lien Release Bond. Because we reverse on the basis of our disposition of the first issue, we do not address the other issues.

FACTS
Jerome and Chait entered into a contract with Valley Homes for the construction of a dwelling on their property, described as Lot No.52, Beaver Creek Estates subdivision, in Carroll County.

Musser, a subcontractor of Valley Homes, had, in turn, entered into a sub-subcontract with Winkler to perform certain carpentry work in connection contract. with the construction required under Musser's sub

Appellants contend that Winkler failed to complete the As a result

work it contracted to do and abandoned the job site.

of this alleged breach of the sub-subcontract, Musser claims he had

to

pay

$7,240.00

for

labor,

materials

and

to

other

sub-

subcontractors to complete the work that Winkler was required to do. On June 17, 1997, Winkler filed a Petition to Establish and Enforce Mechanic's Lien for work that it had performed under his sub-subcontract with Musser. Jerome and Chait were properly served. They contacted Valley Homes, who advised them that a Mechanic's Lien Release Bond had been obtained and that they would be fully protected from Winkler's claim. response to the Petition. Musser filed a Verified Answer to the Petition to Establish Mechanic's Lien and a Counter-Claim for damages caused by Winkler's failure to perform. In the Verified Answer, Musser denied that any Accordingly, they did not file a

monies were due to Winkler and alleged that Winkler had failed to perform. In his counter claim, Musser alleged that Winkler had

failed to perform under his contract; and to his counter claim, Musser attached a copy of a certified letter, dated March 13, 1997, he sent to Winkler notifying him of the termination of the contract because of Winkler's abandonment of the job site on March 3, 1997, and because of Winkler's general non-compliance with the subsubcontract. In a second letter dated April 21, 1997, and also appended to Musser's Answer, Musser advised Winkler of the details of the alleged breach. In the letter, Musser claimed that he spent

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$13,000.00 to complete the job; he also showed a deduction of the $5,760.00 still due to Winkler under the subcontract, and enclosed an invoice, addressed to Winkler, in the net amount of $7,240.00, along with documentary support of the claim. A show cause hearing was held on August 14, 1997. Musser appeared and contested the claim; however, the trial court granted the Final Mechanic's Lien because of the failure by Jerome and Chait to file an answer. The court explained: Well the Mechanic's Lien Law is pretty darn strict and it . . . provides once the plaintiff takes action on a mechanic's lien that the owner has things that the owner has to do whether it's a justifiable complaint or whether it is not a justifiable complaint, he has to answer under oath and it could be if that were the case, if he'd done what he had to do, then that matter could have been heard today, but you can't just ignore pleadings and then come in and say, well, the real cause of action is between Winkler and the subcontractor (sic), it's not between Winkler and the owners, . . . that's not the way it works. You have an order, Mr. Hanly. [Winkler's attorney] On August 22, 1997, the three appellants filed a Motion to Vacate and Reconsider and, in the alternative, a Petition to File a Mechanic's Lien Release Bond, both of which were denied by the court without a hearing. A subsequent Motion to Revise the Denial

of the Petition to File a Mechanic's Lien Bond was also denied without a hearing.

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DISCUSSION
Md. Code (1997 Supp.),

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