Any number of persons claiming liens may join in the same action, and when separate actions are commenced, the court may consolidate them. A prevailing party in a dispute arising out of or relating to a lien action is entitled to recover from the other party the reasonable attorney fees, costs and expenses incurred by the prevailing party.
History: Laws 1880, ch. 16, § 14; C.L. 1884, § 1532; C.L. 1897, § 2229; Code 1915, § 3330; C.S. 1929, § 82-213; 1941 Comp., § 63-213; 1953 Comp., § 61-2-13; 2005, ch. 120, § 1; 2007, ch. 212, § 5.
ANNOTATIONSThe 2007 amendment, effective June 15, 2007, provided that a prevailing party may recover reasonable attorney fees, costs and expenses.
The 2005 amendment, effective June 17, 2005, permitted the court to award attorney fees to the prevailing party in a lien foreclosure action.
Section permitting allowance of attorney's fees is constitutional. Gray v. N.M. Pumice Stone Co., 1910-NMSC-036, 15 N.M. 478, 110 P. 603; Genest v. Las Vegas Masonic Bldg. Ass'n, 1902-NMSC-003, 11 N.M. 251, 67 P. 743 (1902); Baldridge v. Morgan, 1910-NMSC-003, 15 N.M. 249, 106 P. 342.
Allowance of fees rests in sound discretion of trial court and reviewing court will not alter or change such allowance unless there is manifest abuse of discretion of the court. Montgomery v. Karavas, 1941-NMSC-020, 45 N.M. 287, 114 P.2d 776; Armijo v. Mountain Elec. Co., 1902-NMSC-002, 11 N.M. 235, 67 P. 726 (1902); Pearce v. Albright, 1904-NMSC-015, 12 N.M. 202, 76 P. 286 (1904); Baldridge v. Morgan, 1910-NMSC-003, 15 N.M. 249, 106 P. 342.
No change in allowance unless abuse of discretion. — Court of appeals would not change an allowance made under this section by the trial court unless there was a manifest abuse of discretion. Measday v. Sweazea, 1968-NMCA-008, 78 N.M. 781, 438 P.2d 525.
Trial court alone has authority to allow attorneys fees. Skidmore v. Eby, 1953-NMSC-098, 57 N.M. 669, 262 P.2d 370.
"Reasonable attorney's fee". — While the criteria under the Rules of Professional Conduct may, in general, determine the reasonableness of a fee, the court does not set the fee as between the mechanic or materialman and his attorney. Under this section, the court simply allows recovery of a "reasonable attorney's fee" from the owner. Ulibarri v. Gee, 1987-NMSC-113, 106 N.M. 637, 748 P.2d 10.
Close scrutiny where amount based on questions collateral to lien. — The reasonableness of the attorney's fee must be closely scrutinized if the amount is based on the defense of counterclaims and other questions collateral to the enforcement of the lien. Lenz v. Chalamidas, 1989-NMSC-067, 109 N.M. 113, 782 P.2d 85.
Time spent as factor in awarding fees. — The trial court's emphasis on time spent as the persuasive factor in awarding attorney fees, especially to an attorney inexperienced in lien foreclosure actions, resulted in an excessive award and was an abuse of discretion. Lenz v. Chalamidas, 1989-NMSC-067, 109 N.M. 113, 782 P.2d 85.
Remand to trial court as to attorneys fees. — On affirmance of judgment foreclosing a lien, the supreme court will not fix attorneys fees for services on appeal, but will remand for allowance by the trial court at its discretion. Mitchell v. McCutcheon, 1927-NMSC-061, 33 N.M. 78, 260 P. 1086.
Findings of fact for attorney fee awards. — In setting attorney fee awards, a trial court must make findings of fact on those factors on which the parties have presented evidence. Without findings of fact and conclusions of law, the supreme court cannot properly perform its reviewing function. Lenz v. Chalamidas, 1989-NMSC-067, 109 N.M. 113, 782 P.2d 85.
Award of attorney fees on appeal requires statutory authority. Alber v. Nolle, 1982-NMCA-085, 98 N.M. 100, 645 P.2d 456.
Section permits court to allow additional attorneys fees for appeals. Daughtrey v. Carpenter, 1970-NMSC-151,82 N.M. 173, 477 P.2d 807.
Attorneys fees authorized in court of appeals. — Although this statute did not authorize an allowance of attorney fees in the court of appeals, the clear legislative intent was to authorize allowance of attorney fees in the trial and appellate courts. To deny an allowance for attorney fees in this court while authorizing such an allowance in the supreme court would be an absurd result. Measday v. Sweazea, 1968-NMCA-008, 78 N.M. 781, 438 P.2d 525.
Attorneys fees treated as costs. — The language of this section indicates that any allowance made for attorney fees should be as costs, and treated the same as the money paid for filing and recording the lien. Home Plumbing & Contracting Co. v. Pruitt, 1962-NMSC-075, 70 N.M. 182, 372 P.2d 378.
An invalid lien cannot be the basis for an award of attorney fees. — The use of the word "must" in 48-2-6 NMSA 1978, requiring verification by oath, conveys the legislature's setting a mandatory precondition to the lien's validity. In enacting 48-2-6 NMSA 1978, the legislature required some positive affirmation of good faith undertaken upon oath as to the contents of a notice of lien to render any claim thereof valid. Without verification, no lien is created, and cannot provide any basis for action under 48-2-14 NMSA 1978 or attorney fees to be awarded. Sonida, LLC v. Spoverlook, LLC, 2016-NMCA-026.
In a dispute arising out of or relating to a lien action following a dispute over construction of a house, where plaintiff filed a claim of lien against the home to protect its interests, but where none of the lien documents included any language verifying upon oath the truth of its contents, plaintiff's claims of lien were void ab initio because no valid lien was created, and they could not therefore support a foreclosure action on the lien as a matter of law, or provide any basis for action under 48-2-14 NMSA 1978 or attorney fees to be awarded under that statute. Sonida, LLC v. Spoverlook, LLC, 2016-NMCA-026.
Section does not apply to reimbursement of legal fees to subcontractors in suits against prime contractors for the recovery of work performed. Tyner v. DiPaolo, 1966-NMSC-129, 76 N.M. 483, 416 P.2d 150.
Homeowners not entitled to attorneys fees. — Although this section allows for the award of attorneys fees to successful lien holders, it does not allow recovery of attorneys fees by homeowners. This article is meant to protect lien holders and not homeowners. Tabet Lumber Co. v. Romero, 1994-NMSC-033, 117 N.M. 429, 872 P.2d 847.
No attorneys fees where no action. — Where no action was filed and no court had exercised its discretion in allowing filing and attorneys fees to a lien claimant, he is not entitled to such fees. Price v. Van Lint, 1941-NMSC-052, 46 N.M. 58, 120 P.2d 611.
Award for defending counterclaim. — Although attorneys fees may be awarded for defending a counterclaim, it should be the exception and not the rule to do so. Hiatt v. Keil, 1987-NMSC-049, 106 N.M. 3, 738 P.2d 121.
Attorney's fee held unreasonable. — This section provides that the fee must be reasonable, and a fee in excess of 300% more than the judgment awarded is patently unreasonable. Hiatt v. Keil, 1987-NMSC-049, 106 N.M. 3, 738 P.2d 121.
Lien enforcement suit in equity. — A suit for the enforcement of a mechanic's lien must be brought on the equity side of the court, unless otherwise provided by statute. Ford v. Springer Land Ass'n, 1895-NMSC-011, 8 N.M. 37, 41 P. 541, aff'd, 168 U.S. 513, 18 S. Ct. 170, 42 L. Ed. 562 (1897), overruled on other grounds by Finane v. Las Vegas Hotel & Improvement Co., 1885-NMSC-023, 3 N.M. (Gild.) 411, 5 P. 725; Ford v. Springer Land Ass'n, 1895-NMSC-011, 8 N.M. 37, 41 P. 541; Rupe v. N.M. Lumber Ass'n, 1885-NMSC-020, 3 N.M. (Gild.) 393, 5 P. 730; Straus v. Finane, 1885-NMSC-024, 3 N.M. (Gild.) 398, 5 P. 729; Newcomb v. White, 1890-NMSC-007, 5 N.M. 435, 23 P. 671; Minor v. Marshall, 1891-NMSC-029, 6 N.M. 194, 27 P. 481 (decided under prior law).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 53 Am. Jur. 2d Mechanics' Liens §§ 337, 353, 403, 461 et seq.
Appointment of receiver in action to enforce mechanics' liens, 1 A.L.R. 1466.
Original contractor as necessary party to suit by subcontractor or materialman to enforce mechanic's lien against property of married woman for work performed or materials furnished under a contract made with her husband, 4 A.L.R. 1034.
Pleadings, verification by agent or attorney in action to enforce, 7 A.L.R. 13.
Prior action on contract in which claim on mechanic's lien might have been asserted by counterclaim, setoff or cross petition as bar to subsequent action to foreclose lien, 8 A.L.R. 714.
Interpleader against contractor and lien claimants, 70 A.L.R. 515.
What amounts to bringing of suit within limited time required by mechanic's lien statute, 75 A.L.R. 695.
Dismissal of proceeding to enforce mechanic's lien because of delay in prosecuting it, 79 A.L.R. 847.
Waiver of failure to bring suit to enforce lien in time prescribed, by failure to raise objection by demurrer or answer, 93 A.L.R. 1462.
Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer or materialman, 100 A.L.R. 128.
Nonresidence or absence of defendant from state as suspending running of limitations against action to foreclose mechanic's lien, 119 A.L.R. 372.
56 C.J.S. Mechanics' Liens §§ 296 to 307, 317, 318, 323 to 330, 333 to 343, 404, 408, 432 to 436.