Reliable Constructors, Inc. v. Oakmont Corp.

By Judge Horace A. Revercomb, III This matter is before the Court on motion to dismiss filed by defendant, Flying J., Inc. After reviewing the pleadings and exhibits filed herein and considering the oral arguments made on July 14,1999, the brief in support of the motion to dismiss, and the brief in opposition to defendant’s motion to dismiss, for die reasons set forth in the defendant’s brief, the motion to dismiss is granted. In its response to the request for admissions and its brief, plaintiff, Reliable Constructors, Inc. (“Reliable”) admitted that its memorandum of mechanic’s lien included a claim for $250.00 to be reimbursed for a fine levied upon Reliable by the Virginia Occupational Safety and Health Department (“VOSHD”). Reliable admitted that said fine was levied on August 8, 1995, and that it last performed work on the job, which is the subject of this mechanic’s lien, on or after March 8, 1996. Because Reliable last performed work on the job on or after March 8,1996, the $250.00 portion of its claim incurred by Reliable on August 8,1995, was for labor or materials supplied at least 212 days prior to the last day on which Reliable supplied labor to the job. Virginia Code § 43-4 provides in part: “the claimant may file any number of memoranda but no memoranda filed pursuant to this chapter shall include sums due for labor or materials furnished more than 150 days prior to the last day on which labor was performed or materials furnished to the job preceding the filing of such memorandum.” Compliance with the 150-day limitation is [452] a prerequisite for perfecting a mechanic’s lien, and it must be strictly construed. American Standard Homes Corp. v. Reinecke, 245 Va. 113, 119 (1993); Carolina Builders Corp. v. Cenit Equity Co., 257 Va. 405 (1999). Reliable argues that the Court should stricdy construe Virginia Code § 43-4 by finding that a fine levied against it by VOSHD is not labor or materials as contemplated by the statute. However, Reliable elected to include reimbursement of the said $250.00 fine among the items of labor or materials it claimed in its memorandum of Mechanic’s Lien.