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SJC‑11266

NES RENTALS  vs.  MAINE DRILLING & BLASTING, INC., & another.^[1]

Berkshire.     March 7, 2013.  ‑  July 15, 2013.

Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.

Mechanic’s Lien.  Bond.  Practice, Civil, Amendment of Complaint, Motion to dismiss, Enforcement of liability on bond, Commencement of action.

Civil action commenced in the Superior Court Department on May 21, 2010.

A motion to dismiss was heard by Daniel A. Ford, J.

An application for leave to prosecute an interlocutory appeal was allowed by Andrew R. Grainger, J., in the Appeals Court.  The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

John J. Ferriter for Maine Drilling & Blasting, Inc.

Peter F. Davis for the plaintiff.

DUFFLY, J.  We address in this appeal whether a subcontractor’s amendment of its original complaint to enforce a mechanic’s lien constituted timely commencement of its action to enforce a bond pursuant to G. L. c. 254, § 14, as amended through St. 2002, c. 400, § 2 (§ 14), which sets forth procedures for execution and enforcement of bonds to dissolve mechanic’s liens.  The plaintiff, NES Rentals, Inc. (NES Rentals), filed an action in the Superior Court to enforce a mechanic’s lien recorded pursuant to G. L. c. 254, § 4, as amended through St. 1996, c. 364, § 5 (§ 4), on land owned by Berkshire Wind and Power Cooperative Corporation (Berkshire Wind).  More than a year later, Maine Drilling and Blasting, Inc. (Maine Drilling), acting as principal debtor, and the surety, Berkley Regional Insurance Company (Berkley), executed and recorded a surety bond to dissolve the lien pursuant to § 14.  The bond named NES Rentals as an obligee.  Within ninety days of receiving notice of the bond, NES Rentals served on Maine Drilling and Berkley a motion to amend its original complaint, seeking to include them as defendants in its underlying complaint and to add a claim to enforce the bond against them.^[2]

After NES Rentals filed the amended complaint with leave of court, a judge denied Maine Drilling’s motion to dismiss the amended complaint, explaining that although NES Rentals had not filed the amended complaint within ninety days of receipt of notice of the bond, service of the motion on the defendants within that ninety-day period provided the defendants with actual notice of the action to enforce the bond, and satisfied the § 14 requirement that a claimant have “commenced” a civil action within that period in order to enforce the bond.  The defendants sought leave to appeal, which was allowed, and we transferred the case to this court on our own motion.

We affirm the order denying the defendant’s motion to dismiss, but for reasons different from those relied on by the judge.  We conclude that the term “commenced” as used in § 14, contemplates the filing of an action in court in accordance with Mass. R. Civ. P. 3, as amended, 385 Mass. 1215 (1982), and that the commencement requirement in § 14 is satisfied on the facts of this case because the amendment to the complaint relates back to the date on which NES Rentals filed its original action against Berkshire Wind under Mass. R. Civ. P. 15 (c), 365 Mass. 761 (1974) (rule 15 [c]).

1.  Background and prior proceedings.  NES Rentals alleges that McManus Excavating, Inc., contracted with it to rent equipment for construction use on property owned by Berkshire Wind.  On April 26, 2010, NES Rentals perfected a mechanic’s lien on the Berkshire Wind property by recording a notice of its contract with McManus, as required by § 4,^[3] and a sworn statement of account that claimed $ 89,101 as the amount due for the rental equipment, as required by G. L. c. 254, § 8, as amended by St. 1996, c. 364, § 9 (§ 8).^[4]  On May 25, 2010, NES Rentals filed and recorded its complaint against Berkshire Wind in the Superior Court, seeking to enforce the lien.  See G. L. c. 254, § 5, as amended by St. 1996, c. 364, § 9  (§ 5) (setting forth procedures for enforcement of mechanic’s lien by civil action).

On April 29, 2011, Maine Drilling^[5] and Berkley recorded a bond in the penal sum of $ 89,101, thereby dissolving the lien pursuant to § 14.^[6]  NES Rentals received notice of recording of the bond on June 13, 2011, and on August 23, 2011, NES Rentals served on Maine Drilling and Berkley a motion for leave to amend its complaint against Berkshire Wind by adding them as defendants, and asserting against Maine Drilling and Berkley a new claim to enforce the bond.  On October 3, 2011, NES Rentals filed its motion to amend with the Superior Court, and Berkshire Wind filed a cross motion to dismiss the lien enforcement action.

On November 2, 2011, a judge of the Superior Court allowed both the motion of NES Rentals to amend the complaint and Berkshire Wind’s cross motion to dismiss the underlying complaint against it; NES Rentals then filed its amended complaint with the court.  Thereafter, Maine Drilling filed a motion to dismiss the amended complaint on the ground that it was not timely filed in accordance with the terms of § 14, because the amended complaint, which constituted the action to enforce the bond, was not filed within ninety days after NES Rentals received notice of recording of the bond, that is, by September 11, 2011.

The judge denied Maine Drilling’s motion to dismiss the amended complaint.  He explained that “even though the amended complaint was actually not ‘filed’ within the 90 day period, the defendants had actual notice of it well within that period,” where NES Rentals had served the motion to amend on Maine Drilling and Berkley within that time, and that, therefore, “the purpose of the statute, i.e., notice to the issuer of the bond within 90 days, was satisfied.”^[7]  Maine Drilling petitioned for an interlocutory appeal to a single justice of the Appeals Court, who referred the case to a full panel of that court.  We transferred the case to this court on our own motion.

2.  Discussion.  In reviewing the denial of a motion to dismiss, we consider the matter de novo, Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), accepting as true “the factual allegations in the plaintiff[‘s] complaint, as well as any favorable inferences reasonably drawn from them.”  Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998), citing Nader v. Citron, 372 Mass. 96, 98 (1977), abrogated on other grounds Iannacchino v. Ford Motor Co., 451 Mass. 623, 635 (2008).

In this case we consider whether amendment of a complaint, originally brought as an action to enforce a lien, by adding a claim to enforce a lien dissolution bond constitutes timely commencement of an action to enforce the bond within the meaning of § 14.  We begin our discussion of the applicable provisions of G. L. c. 254 (mechanic’s lien statute) with the observation that it is the primary purpose of the mechanic’s lien statute “to provide security to contractors, subcontractors, laborers, and suppliers for the value of their services and goods provided for improving the owner’s real estate” through perfection of a mechanic’s lien on the owner’s real estate.  Hammill-McCormick Assocs., Inc. v. New England Tel. & Tel. Co., 399 Mass. 541, 542-543 (1987), citing Mitchell v. Packard, 168 Mass. 467, 469 (1897).

“At the same time, the statute contains filing and notice requirements to protect the owner and others with an interest in the property.”  Id. at 543, and cases cited.  The mechanic’s lien statute is “designed to ensure that a person searching the land records in a registry of deeds can determine with certainty whether or not title to a particular parcel of land is encumbered by a mechanic’s lien.”  National Lumber Co. v. LeFrancois Constr. Corp., 430 Mass. 663, 668 (2000) (National Lumber I), citing Pratt & Forrest Co. v. Strand Realty Co., 233 Mass. 314, 317-318 (1919).  Additionally, because a perfected lien is an encumbrance on the owner’s property, the statute provides for prevention of future liens and dissolution of existing liens by the giving of a bond, see G. L. c. 254, § 12, as amended through St. 2002, c. 400, § 1 (§ 12), and § 14, which benefits “an owner of land (or anyone possessing an interest in that land) by furnishing means to keep his title free from liens” and preventing the sale of the land to satisfy a lien.^[8]  Warren Bros. Co. v. Peerless Ins. Co., 8 Mass. App. Ct. 719, 722 (1979), citing Rockwell v. Kelly, 190 Mass. 439, 440 (1906).  Thus, the mechanic’s lien statute both “governs the creation, perfection, and dissolution of a mechanic’s lien,” National Lumber Co. v. United Cas. & Sur. Ins. Co., 440 Mass. 723, 726 (2004) (National Lumber II), citing Ng Bros. Constr. v. Cranney, 436 Mass. 638, 644 (2002), and sets forth the procedures for execution and enforcement of a lien dissolution bond.  National Lumber II, supra at 726.

We look to the specific provisions governing creation and perfection of a mechanic’s lien, and the procedures for enforcement of a lien dissolution bond, to decide whether NES Rentals has fulfilled the requirements for enforcement of the bond by timely commencing a civil action.  Under § 4 of the mechanic’s lien statute, a subcontractor furnishing rental equipment for use on land may record a lien on that property, but under G. L. c. 254, § 11, as amended through St. 1996, c. 364, § 11 (§ 11) “[t]he lien shall be dissolved unless a civil action to enforce it is commenced within ninety days after the filing of the statement required by section eight,” and thereafter “filed in the registry of deeds and recorded.”  G. L. c. 254, § 5 (delineating procedures for lien enforcement action).  There is no question that NES Rentals recorded its lien and timely commenced and recorded a civil action to enforce it in the Superior Court, after recording a § 8 statement setting forth the amount due for the rental equipment it had furnished.

Section 14 dictates how such a perfected lien may be dissolved by the posting of a bond, and what a subcontractor must do to maintain his security.  “Any person in interest may dissolve a lien . . . by recording . . . a bond . . . in a penal sum equal to the amount of the lien sought to be dissolved,” and a claimant, such as NES Rentals, “may enforce the bond by a civil action commenced within ninety days after the later of the filing of the statement required by section 8 or receipt of notice of recording of the bond . . . .”  G. L. c. 254, § 14.  The question before us, then, is whether, under this framework, NES Rentals has “commenced” a civil action by amending its original complaint, and whether the date of commencement, for purposes of § 14, is the date on which the amended complaint was filed, or whether it relates back to the date of the original complaint.

“Because a mechanic’s lien is purely a creation of statute, we have consistently required exact compliance with the statute in order to create, perfect, and enforce such a lien.”  Golden v. General Bldrs. Supply, 441 Mass. 652, 654 (2004) (Golden), and cases cited.  See National Lumber II, supra at 729, citing National Lumber I, 430 Mass. at 666 (just as strict compliance with provisions of statute is required to perfect lien, person in interest may dissolve lien by strictly adhering to statute); Ng Bros. Constr. v. Cranney, supra at 644, citing Mullen Lumber Co. v. Lore, 404 Mass. 750, 752 (1989) (“The [mechanic’s lien] statute is strictly construed against the party claiming the lien”).  Relying on these rules of strict compliance, Maine Drilling argues that mere service of an unfiled motion to amend a complaint within ninety days of receipt of notice of a lien dissolution bond does not constitute “commence[ment]” of a civil action to enforce the bond under § 14.

According to Maine Drilling, NES Rentals did not “commence[]” an action on the bond within ninety days from the date on which it received notice of the recording of the bond, because NES Rentals did not file its amended complaint until November 2, 2011, or even file its motion to amend until October 3, 2011, well beyond ninety days after NES Rentals was served with notice of the bond on June 13, 2011.^[9]

The mechanic’s lien statute does not define the phrase _civil action commenced,_ but its meaning may be discerned from the legislative history of the statute.  See Commonwealth v. Hamilton, 459 Mass. 422, 433 (2011), citing 81 Spooner Rd. LLC v. Brookline, 452 Mass. 109, 115 (2008) (“where statute unclear, appropriate to look to statute’s prior versions, development, and progression through Legislature”).  The phrase “civil action commenced,” replacing the phrase “petition in equity filed,” was added by legislation dated November 30, 1973, entitled “An Act improving the procedure in civil trials and appeals.”  St. 1973, c. 1114, § 320.  This act derived from 1973 House Doc. No. 7236, a bill intended “to conform the General Laws of Massachusetts to the Massachusetts rules of civil procedure and the Massachusetts rules of appellate procedure.”

We adopted the Massachusetts rules of civil procedure earlier that year, see National Lumber I, 430 Mass. at 670-671; Introduction to Mass. R. Civ. & Mass. R. App. P., 365 Mass. 730 (1974), and assume that the Legislature was aware of the recently adopted rules when it amended § 14 in 1973.  See Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486, 501 (2012), quoting CFM Buckley/North LLC v. Assessors of Greenfield, 453 Mass. 404, 412 (2009) (“it . . . must be presumed that the Legislature knew preexisting law and the decisions of this court”).  It is apparent from this history that the Legislature intended the meaning of “civil action commenced” as used in § 14 of the mechanic’s lien statute to be interpreted consistently with the meaning of those terms in the Massachusetts rules of civil procedure.

As provided by Rule 3 of the Massachusetts Rules of Civil Procedure, “A civil action is commenced by (1) mailing to the clerk of the proper court . . . a complaint and an entry fee . . . or (2) filing such complaint and an entry fee with such clerk.”  Mass. R. Civ. P. 3, as amended, 385 Mass. 1215 (1982).^[10]  See Zobel, The Massachusetts Rules of Civil and Appellate Procedure, 59 Mass. L.Q. 115, 115 (1974) (“A civil action is commenced under the new Rules in a very simple manner.  A document called a complaint is prepared, which is analogous to the present day declaration or bill in equity . . . . When the complaint is completed, it may be either filed directly in court or . . . mailed . . . to the clerk of court”).  We therefore agree with Maine Drilling that service of a motion to amend the complaint, although providing notice that an amended complaint may be filed upon approval of the court, see Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974), does not constitute commencement of an action within the meaning of § 14.

However, this conclusion does not end our inquiry.  When Maine Drilling and Berkley recorded the lien dissolution bond and provided notice of the bond to NES Rentals, NES Rentals had already commenced a civil action to enforce its lien against Berkshire Wind, in accordance with the provisions of §§ 5 and 11.^[11]  To determine whether NES Rentals has timely commenced an action within the meaning of § 14, therefore, we must consider whether its amended complaint (seeking enforcement of the bond) relates back to the original complaint (seeking enforcement of the lien) under Mass. R. Civ. P. 15 (c), such that it may enjoy the benefit of the original complaint’s filing date, even though the amended complaint was filed outside the time frames set forth in the mechanic’s lien statute.^[12]

Our adherence to principles of strict statutory construction applicable to the mechanic’s lien statute, “and our insistence on precise compliance with those statutory terms, do[] not mean that the rules of civil procedure are inapplicable to proceedings concerning mechanic’s liens . . . .  Absent some incompatibility between a specific procedural rule and the provisions of the [mechanic’s lien] statute, we will apply and enforce both.” Golden, supra at 655, citing National Lumber I, supra at 670-672.

Under ordinary application of the Massachusetts rules of civil procedure, the time of filing of an amended complaint relates back to the date the original complaint was filed.  See Mass. R. Civ. P. 15 (c) (“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment [including an amendment changing a party] relates back to the original pleading”).^[13]  “Massachusetts practice is more liberal than other jurisdictions in allowing amendments adding or substituting defendants after expiration of a period of limitations.”  National Lumber I, supra at 671, citing Reporters’ Notes to Mass. R. Civ. P. 15, Mass. Ann. Laws, Rules of Civil Procedure at 426 (Lexis 1999).  “In Massachusetts, ‘where an action has been commenced before the statute of limitations has run, a plaintiff may be allowed to substitute one defendant for another after the statute of limitations has run against the proposed substitute defendant.’”  Id. at 671-672, quoting Wadsworth v. Boston Gas Co., 352 Mass. 86, 89 (1967).

The language of rule 15 (c) has remained unchanged since the enactment of the Massachusetts rules of civil procedure in 1973, which prompted the amendment of the mechanic’s lien statute to conform to the newly-adopted rules.  See Mass. R. Civ. P. 15 (c), 365 Mass. 761 (1974); 1973 House Doc. No. 7236.  Although we assume that the Legislature was aware of the relation back provisions of rule 15 (c), and knew those provisions generally would apply when it added the language “a civil action commenced” to § 14, see Rhodes v. AIG Domestic Claims, Inc., supra at 501, citing CFM Buckley/North LLC v. Assessors of Greenfield, supra, we will not apply the ordinary relation back provisions of rule 15 (c) in circumstances where application of the rule conflicts with the terms or purpose of the mechanic’s lien statute.  As we said in Golden, supra at 660-661, and cases cited, “Where . . . application of the otherwise customary rules of relation back would compromise one of the objectives of a statutory scheme, relation back is not allowed.”  We conclude that the objectives of the statutory scheme would not be undermined by permitting ordinary operation of the relation back rule to render NES Rental’s amended complaint timely filed against Maine Drilling and Berkley.

In National Lumber I, supra at 671-672, we held that a plaintiff who had timely commenced an action to enforce a § 4 lien against a former property owner could amend the complaint to add the present property owner, even after the statutory period for bringing an enforcement action under § 11 had expired.  As we explained in that case, under rule 15 (c), the action relates back to the date of the commencement of the complaint, and § 11 does not bar application of rule 15 (c) because § 11 is not a statute of repose blocking later claims against successive property owners.  Id.

By comparison, in Golden, supra, we held that a counterclaim to enforce a lien, filed after the § 11 deadline to commence an action on that lien, does not relate back to the date of the complaint filed by the property owner, id. at 661, because “allowing for reinstatement of a dissolved lien by later filing of a counterclaim ‘would effectively give the contractor a period greater than that intended by the Legislature’ in which to enforce the lien.”  Id. at 659, quoting Tremont Tower Condominium, LLC v. George B.H. Macomber Co., 436 Mass. 677, 684 (2002).  As we noted in Golden, supra at 659-660, quoting National Lumber I, supra at 669, relation back in such a case would “wreak havoc with one of the statute’s important purposes, namely, the provision of ‘an accurate system for recording and identifying encumbrances secured under the mechanic’s lien statute,’” because a title examiner who found no complaint recorded on a lien within 120 days^[14] of recording of the § 8 statement would not be able to rely on the absence of a recorded complaint at that point in time to establish that the lien had been dissolved and no longer encumbered the property.

The text and purpose of § 14 and the mechanic’s lien statute support ordinary application of the relation back provisions of rule 15 (c) to the circumstances of this case.  Section 14 states in general terms that “[t]he claimant may enforce the bond by a civil action commenced within ninety days after the later of the filing of the statement required by [§] 8 or receipt of notice of recording of the bond.”  First, as discussed above, the phrase “civil action commenced”, read in light of the circumstances of its addition to the statute, permits relation back of an amended complaint to the date of a timely filed original complaint.  Moreover, the language “commenced within ninety days after” does not bar commencement of an action before the ninety-day period, as would result from application of the relation back rules in this case.  See Mullen Lumber Co. v. Lore, 404 Mass. 750, 754-756 (1989) (under § 11, which provides that lien dissolves unless civil enforcement action is “commenced within [ninety] days after” filing of § 8 statement, ninety-day period establishes “latest time at which a lien could be enforced and does not preclude . . . enforcement” prior to filing of § 8 statement).^[15]

Additionally, nothing in the language of § 14 requires that the action to enforce the bond be filed as a new, separate action, rather than as an amendment to an existing action to enforce the lien.  Indeed, the statute emphasizes the interconnectedness of the two claims:  the bond must itself be “conditioned for the payment of any sum which the claimant may recover on his claim for labor or labor and materials” and the bond “shall not create any rights which the claimant would not have had, or impair any defense which the obligors would have had, in an action to enforce a lien.”  G. L. c. 254, § 14. Furthermore, § 5, which provides detailed procedural requirements for commencement of an action to enforce a lien, by its terms contemplates amendment of lien enforcement actions, as it includes a provision for adding any “parties in interest,”^[16] a term that is broad enough to include a “person in interest” who records a § 14 bond.^[17]  G. L. c. 254, § 5.

Moreover, application of the relation back provisions of rule 15 (c) in this context is consistent with, rather than repugnant to, the objectives of the mechanic’s lien statute.^[18]  As we have noted, “[a] primary purpose of G. L. c. 254 is ‘to provide security to contractors, subcontractors, laborers, and suppliers for the value of their services and goods provided for improving the owner’s real estate.’”  National Lumber I, supra at 668, quoting Hammill-McCormick Assocs. v. New England Tel. & Tel. Co., 399 Mass. 541, 542-543 (1987).  Here, relation back under rule 15 (c) clearly serves this purpose as it permits contractors, subcontractors, laborers, and suppliers to recover on a lien dissolution bond in an amended action to enforce a lien, without having to initiate an entirely new case to determine the same underlying amount due on the lien or to pay duplicative filing fees.

Permitting bond enforcement actions to relate back to the date of a timely-filed lien enforcement action does not frustrate the statutory objective of ensuring a reliable recording system.  See National Lumber I, supra at 668, citing Pratt & Forrest Co. v. Strand Realty Co., 233 Mass. 314, 317-318 (1919).  Once a bond is recorded in accordance with § 14, the lien is dissolved on the record, and any concern about uncertainty of title arising from that lien is eliminated.^[19]  See Golden, supra at 660 n.8, citing National Lumber I, supra at 669-670, 671 (noting, by comparison, that National Lumber I court “determined that allowing relation back with respect to the addition of the new owner as a defendant in a mechanic’s lien enforcement action would not impair the reliability of the recording system” because “the recording of the original enforcement complaint would, by itself, be adequate to alert the examiners to the present status of the mechanic’s lien, and the later addition of a party would not impair an examiner’s ability to confirm the presence or absence of that lien”).  Additionally, any interest of the principal on the bond in ensuring prompt determination of its liability to the claimant is well served by Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974), which requires that a claimant must obtain leave of court or consent of the adverse party to amend a complaint more than twenty days after the original complaint is served.^[20]

We therefore conclude that the ordinary relation back provisions of rule 15 (c) apply to § 14 bond enforcement actions, and that a claimant may, in accordance with rule 15, amend a timely filed complaint seeking enforcement of a lien to add a claim to enforce a lien dissolution bond against the holder of the bond after the ninety-day period set forth in § 14.^[21]  For these reasons, Maine Drilling’s motion to dismiss NES Rentals’ action to enforce the bond against it was properly denied.^[22]

Judgment affirmed.

LENK, J. (dissenting)  I write separately because I believe that the court’s decision strays from both clear statutory language and well-established precedent.  In so doing, the court unnecessarily introduces a level of unpredictability into the requirements for compliance with the mechanic’s lien statute, an area of law in which those affected rely on the certainty that the statute is designed to provide.  See Golden v. General Bldrs. Supply, 441 Mass. 652, 659-600 (2004) (Golden).

“Because a mechanic’s lien is purely a creation of statute, we have consistently required exact compliance with the [mechanic’s lien] statute in order to create, perfect, and enforce such a lien.”  Id. at 654.  “Just as strict compliance with the [statutory] provisions is required to perfect the lien, . . . so may a person in interest dissolve the lien by strictly adhering to [G. L. c. 254, § 14, as amended through St. 2000, c. 400, § 2 (§ 14)].”  National Lumber Co. v. United Cas. and Sur. Ins. Co., 440 Mass. 723, 729 (2004), citing National Lumber Co. v. Le Francois Constr. Corp., 430 Mass. 663, 666 (2000).  In applying the relation back rule, Mass. R. Civ. P. 15 (c), 365 Mass. 761 (1974) (rule 15 [c]), to permit this claimant to file its amended complaint outside of the ninety-day period within which, under § 14, a claimant is to enforce a lien dissolution bond,¹ the court today overlooks this well-established rule of strict compliance and renders this statutory deadline largely superfluous.

As the court recognizes, an amendment to the complaint that the claimant originally brought to enforce the then undissolved lien may constitute the “civil action” contemplated in § 14; the parties agree that an entirely new case need not be brought by a claimant in order to enforce the lien dissolution bond.  Ante at        .  The issue, then, is not — as the court’s statutory analysis, ante at        , would suggest — whether an amended complaint will suffice, but when the amended complaint must be filed.  In reliance upon the relation-back provisions of rule 15 (c), the court concludes that it need not be filed within the ninety-day period mandated by § 14.  To the extent that the court justifies this result by suggesting that it permits claimants to recover on a lien dissolution bond “without having to initiate an entirely new case,” ante at        , it answers a question that has not really been asked.

The question that is before us is whether the claimant’s amended complaint must be “commenced,” i.e. filed with the court, see Nett v. Bellucci, 437 Mass. 630, 643-644 (2002) and Mass. R. Civ. P. 3, as amended, 385 Mass. 1215 (1982), within ninety days after the claimant receives notice of the bond.^2,3  In applying rule 15 (c) in these circumstances, the court permits an amended complaint, at whatever vague and uncertain point beyond the ninety-day deadline it may ultimately be filed with the court, to take on the date of the original complaint.  The court does so because it discerns no incompatibility between the rule and the statute’s express ninety-day requirement.  I think otherwise, and conclude that the statute must supersede the rule.  See Hermanson v. Szafarowicz, 457 Mass. 39, 45 (2010) (“Where there is such an irreconcilable conflict between a court rule and a statute, the statute supersedes the rule”); Golden, supra at 655 (procedural rules apply “[a]bsent some incompatibility” with statute).

The upshot of the court’s decision is to render the ninety-day period set forth in the statute largely superfluous, a result that is ordinarily to be avoided.  See Trace Constr., Inc. v. Dana Barros Sports Complex, LLC, 459 Mass. 346, 352 (2011), quoting Bynes v. School Comm. of Boston, 411 Mass. 264, 268 (1991) (“‘It is [an] elementary rule of statutory construction that a statute should not be read in such a way as to render its terms meaningless or superfluous’”).  The ninety-day deadline to enforce a lien dissolution bond will now apply only when a new civil action must be initiated by the claimant, e.g., when a bond is filed in the period after the filing of a lien and before the commencement of an original civil action to enforce it, or when the dissolution bond is filed before the lien attaches.  See G. L. c. 254, § 12, as amended through St. 2002, c. 400, § 1.  As to everyone else,⁴ the date by which such claimants must file an amended complaint is left essentially indeterminate, dependent as it is upon whether leave to amend, whenever sought, will ultimately be granted by a court.