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NES Rentals v. Maine Drilling & Blasting, Inc., et al. (Lawyers Weekly No. 10-133-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030;         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 […]


Posted by Massachusetts Legal Resources - July 15, 2013 at 10:08 pm

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