ATLAS CONTRACTING, INC.
Catherine C. SALEH et al.
DECISION AND ORDER ON DEFENDANTSâ MOTION FOR SUMMARY
DISCHARGE OF MECHANICâS LIEN
Christopher K. Barry-Smith, Justice of the Superior Court
civil action concerns a dispute between the plaintiff
contractor ("Atlas") and the defendant homeowners
(the "Salehs") over payment for home renovation
work performed by Atlas on the Salehsâ residence at 49 Hodge
Road in Arlington between November 2016 and June 2017. In its
complaint, Atlas alleged that the parties entered a contract
for $240, 294.95, but that defendants approved contract
modifications and additions totaling an additional $115,
484.84. Atlas acknowledges that the Salehs paid Atlas $234,
145.00. Thus, Atlasâ claim concerns principally payment for
the alleged contractual additions of $115, 000. The Salehs
dispute that they agreed to contractual modifications,
contending that, throughout their relationship with Atlas,
the Salehs emphasized that the renovation had to be limited
to the agreed budget of $240, 000. The Salehs have brought
counterclaims for breach of contract, breach of implied
warranty to perform in a workmanlike manner, and for
violation of the G.L.c. 142A, the Home Improvement Contractor
Statute, and G.L.c. 93A prohibiting unfair or deceptive trade
practices. The Salehs allege they had to pay others to
complete, and to remedy, Atlasâs work.
the court is the Salehsâ motion for summary discharge of a
mechanicâs lien recorded by Atlas at the Middlesex Registry
of Deeds on August 24, 2017. For the reasons set forth below,
the Salehsâ motion is allowed.
it stopped work on the Salehsâ residence in late spring 2017,
Atlas obtained a mechanicâs lien on the Salehsâ residence by
filing a Notice of Contract relative to performance of work
and furnishing of material, pursuant to G.L.c. 254,
§§ 1 and 2. Section 2 provides, in pertinent part:
A person entering into a written contract with the owner of
any interest in real property ... for the whole or part of
the erection, alteration, repair or removal of a building,
structure, or other improvement to real property ... shall
have a lien upon such real property ... as appears of record
on the date when notice of said contract is filed or recorded
with the registry of deeds ... to secure payment of all labor
... and material ... which shall be furnished by virtue of
G.L.c. 254, § 2.
August 24, 2017, Atlas recorded a Notice of Contract
("Notice"), which Notice was dated August 16, 2018
and executed by Silva Ozcan, president of Atlas. The Notice
identified an original contract between Atlas and the Salehs
dated December 12, 2016, with an "original contract
price" of $240, 294.95. The Notice also identified
"Change/Orders/Approved Add ons" in the amount of
$115, 484.84. The Notice therefore claimed "total
billings" of $355, 778.79. It acknowledged payments
received of $234, 145.00, leaving a "balance owing"
of 121, 634.79. Also on August 24, 2017, Atlas recorded a
"Statement of Amount Due" pursuant to G.L.c. 254,
§ 8. The Statement identified the same total billings,
payments received, and balance owing as did the Notice, and
was signed by Ozcan for Atlas. Atlas commenced this lawsuit
on November 21, 2017, including claims for breach of
contract, quantum meruit and for enforcement of its
March 19, 2018, the Salehs filed a motion for summary
discharge of Atlasâs mechanicâs lien pursuant to G.L.c. 254,
§ 15A. That statute provides in pertinent part:
If any person in interest, including ... an owner ... claims:
... (b) it appears from the notice of contract or a statement
of account that the claimant has no valid lien by reason of
the character of, or the contract for, the labor or materials
... furnished and for which a lien has been claimed, ... or
(d) that for any other reason a claimed lien is invalid by
reason of failure to comply with any provision of this
chapter, ... such person may apply to the superior court ...
for an order (i) ruling on the matter involved, or (ii)
summarily discharging of record the alleged lien or notice as
the case may be.
G.L.c. 254, § 15A. Generally speaking, summary discharge
of a mechanicâs lien is appropriate only if defects or
noncompliance with the mechanicâs lien statute appear of
record or are readily ascertainable by reference to
undisputed documents. Madigan v. Trace Constr.,
Inc., 71 Mass.App. 1, 7 (2007) (factual dispute
concerning whether commercial landlord had consented to
tenantâs contracts with contractors, which served as basis
for mechanicâs lien, precluded summary discharge).
the Salehs initially filed their motion for summary
discharge, they relied principally on Atlasâ inability to
produce a written contract that was signed by the parties.
The Salehs dispute that they ever signed a written contract
with Atlas, and submitted an affidavit to that effect.
Affidavit of Catherine and Youssef Saleh, Attachment A to
Motion for Summary Discharge ("Saleh Aff."). The
Salehs testified that they entered only an oral contract with
Atlas, in the fall of 2016. Saleh Aff. Â¶ 3. They testified
that, in May 2017, months after Atlas started the project,
Ozcan handed Youssef a written contract, dated December 12,
2016, but neither Youssef nor Catherine ever signed the
back-dated document. Id., Â¶Â¶ 4-7. The Salehs argued
that, although the mechanicâs lien statute requires a written
contract, Atlas had never produced one during this
litigation, because none existed.
opposition to the motion, Ozcan also submitted an affidavit.
Affidavit of Ohan Ozcan, dated March 5, 2018 ("First
Ozcan Aff."). He testified that, following negotiations
in the fall of 2016, Atlas prepared a written contract, dated
December 12, 2016. First Ozcan Aff. Â¶ 8. Ozcan testified that
he brought the contract to the Salehsâ house on December 20,
2016, and both he and Youssef signed the contract.
Id. He described that Youssef signed the contract in
Ozcanâs presence between 6:00 and 7:00 p.m., while Youssef
sat in the front seat of Youssefâs car. Id., Â¶ 9.
Ozcan testified that the contract that Youssef signed was
seven pages, dated December 12, 2016, contract number 3068,
totaling $240, 294.95. Id., Â¶ 8 & Exh. A to First
Ozcan Aff. Ozcan explained further that Atlas had only an
unsigned copy of the Atlas/Saleh contract because he had
submitted the original to the Town of Arlington together with
the application for building permit, and it had since been
destroyed consistent with Arlington policy. First Ozcan Aff.
Â¶Â¶ 10-13. Ozcan confirmed, however, that the signed written
contract, now missing, was for $240, 294.95. Id., Â¶
14. Atlas argued that, even though it did not possess a
written contract signed by the parties, Ozcanâs testimony
that such a contract existed, satisfied the "written
contract" requirement of G.L.c. 254, § 2. The
summary discharge proceeding, Atlas argued, was not the
appropriate forum to resolve the pointed dispute as to
whether the Salehs had signed a written contract.
the record remained unchanged, Atlas might have been right.
It would have been difficult, in a
"summary" proceeding for discharge, to
determine whether a written contract existed, which almost
certainly would have required a credibility determination as
between Ozcan and the ...