IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY MARYLAND

VICTORIA NWAOBASI, et al. *

*
Respondent, *
*
v. * Case No. ______________
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ALL PHASE DRYWALL, INC. *
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Petitioner. *
______________________________________________________________________________

RESPONDENTS MOTION TO DISMISS PETITION

TO ESTABLISH ENFORCE LIS PENDENS

COME NOW, Respondent FCW Justice, Inc. (“Respondent”) by and through undersigned

counsel, and pursuant to Maryland Rule 2-322 files this Motion to Dismiss Petition to Establish

and Enforce Mechanic’s Lien and Verified Complaint filed by Petitioner All Phase Drywall, Inc.

(“Petitioner”), and states as follows:

BACKGROUND FACTS
On September 9, 2022, Respondent contracted with Petitioner to perform framing work

on Respondent’s property located at 4500 Lottsford Vista Road in Lanham, Maryland (“the

Subject Property”).1 Respondent and Petitioner agreed to a price of $200,400.00 for full

completion of the contracted for work.2 In the early stages of work, the two parties had a

disagreement over the type of materials to be used on portions of the project. After involving a

structural engineer in discussions, a resolution was put in place enabling the project to move

forward at no cost to Respondent. The resolution required Petitioner to submit drawings for

engineer approval before continuing work.3

1
Exhibit 1, Respondent Affidavit
2
Exhibit 2, AIA contract between FCW Justice, Inc. And All Phase Drywall
3
Exhibit 3, “Structural Cold-Form Steel Framing Drawings”
 On October 5, 2022, Petitioner submitted drawings for engineer review. On October 12,

2022, the engineer highlighted changes required to ensure the integrity of the work.

Respondent’s structural engineer called for structural changes in the form of “bump outs,” to be

constructed by installing exterior framing on the outside of the building. The changes were

referred back to Petitioner and incorporated into the design drawings.4

However, a month later, Respondent became aware that these changes were not being

incorporated into the work.5 Once Petitioner eventually agreed to the changes, Petitioner issued a

$24,768.00 change order for Respondent to pay, even though it was previously conveyed to

Respondent by Petitioner that Respondent would not be liable to pay for the repairs caused by

Petitioner’s failures.6 At that point, Petitioner walked off the job pending payment of the change

order. When Respondent refused to pay the change order, Petitioner filed a mechanics lien on

the Subject Property.

LEGAL STANDARD OF REVIEW

Maryland Rule 2-322 enables a party to bring a motion to dismiss before filing an answer

on various grounds such as: (1) a lack of jurisdiction over the subject matter, (2) failure to state a

claim upon which relief may be granted, (3) failure to join a party under Rule 2-211, (4)

discharge in bankruptcy, and (5) governmental immunity. In reviewing a motion to dismiss

pursuant to Maryland Rule 2-322(b)(2) for failure to state a claim, the object of the motion is to

argue that as a matter of law relief cannot be granted on the facts alleged, even if the allegations

of the complaint are true. Litz v Maryland Dep’t of the Env’t, 434 Md. 623, 639 (2013); see also

Hhrehorovich v. Harbor Hosp. Ctr., 93 Md. App. 772, 784 (1992.)

4
Id.
5
Exhibit 4, Email exchange between Nwaosabi of FCW and FCW structural engineer Dilip Patel forwarded to All
Phase
6
Exhibit 5, Petitioner cost proposal for change order
 In reviewing a motion to dismiss, this Court must assume the truth of all well pleaded

facts and all inferences that can reasonably be drawn from them. Morris v. Osmose Wood

Preserving, 340 Md. 519, 531 (1995.) Consideration of the universe of facts pertinent to the

Court’s analysis of the motion are generally limited to the four corners of the complaint—and in

this case the Petition for Mechanics Lien—and its incorporated supporting exhibits, if any. Litz,

434 Md. at 639.

ARGUMENT

Petitioner fails to put forth any facts that would warrant the granting of its mechanics lien

—and by this failure alone, its Complaint and Petition for Mechanics Lien should be dismissed.

As discussed in more detail below, Petitioner’s actions were the cause of the breach, and a party

should not be rewarded in the form of a mechanics lien when that party is the sole reason for the

breach of the contract.

Petitioner violated the contract with Respondent by failing to perform adequately under

the terms of the contract. Petitioner not only failed to perform but also attempted to overcharge

Respondent for the substandard work done. Finally, Petitioner operated outside the boundary of

the contract and attempted to issue a change order without Respondent’s approval. Because

Petitioner seeks a lis pendens without having fulfilled their obligations under the contract,

Petitioner has failed to establish probable cause for the establishment of such a lien, and has

failed to state a claim upon which relief can be granted. Petitioner’s lien must therefore be

dismissed.

Petitioner breached the contract on three different grounds. First, Petitioner provided

defective workmanship and failed to comply with the specifications of the contract concerning

the quality of work required to be delivered. Secondly, Petitioner has not performed work
consistent with the amount of money paid to date. Petitioner was contracted to install interior

and exterior metal framing in accordance with County and Respondent’s engineer’s approved

architectural drawings. Drawings also had to be submitted by Petitioner for approval by

Respondent’s structural engineer before work was to begin. Petitioner did not do the necessary

structural work. Finally, Petitioner attempted to issue a change order and then demand payment

from Respondent for the additional $24,768.00 it cost for Petitioner to cure its own breach of the

contract by failing to abide by the structural drawings. When Respondent refused to acquiesce to

this charge, Petitioner stopped working.

I. Petitioner materially breached the contract thus preventing it from asserting a

mechanics lien.
A mechanic’s lien is governed by Maryland Real Property §9-101 to §9-114 and Maryland

Rules 12-301 through 12-308. §9-106 explicitly states that there must be “probably cause to

believe the Petitioner is entitled to a lien.” The law is clear that a mechanic’s lien does not attach

to a property upon the claimant’s filing of the petition to establish the lien; to do so would be an

unconstitutional taking without due process of law. Caretti, Inc. v. Colonnade Ltd., P’ship, 104

Md. App. 131, 135 (1995). The contract required Petitioner to submit shop drawings for review

and approval by Respondent’s structural engineer. Upon receipt of approval from Respondent’s

engineer, building would commence per the engineer’s specifications. However, Petitioner

refused to build in accord with the specifications made by the engineer. Petitioner’s breach of

contract is a violation that proves fatal to both its Complaint and Petition for Mechanics Lien.

The Maryland Code holds that there must be “probable cause” to believe the Petitioner is

entitled to a lien. Md. Code Ann., Real Prop. 9-106. It is the Petitioners burden to establish a

sufficient factual basis that the Court can rely on in order to establish a mechanics lien. Talbott
Lumber Co. V Tymann, 48 Md. App. 647, 652, 428 A.2d 1229, cert denied, 290 Md. 723 (1981);

see also Md. Code, RP 9-106(b)(2) (stating that “if the Petitioner failed to establish his right to a

lien as a matter of law, then a final order shall be entered denying the lien for cause shown.

To be entitled to a mechanics lien, Petitioner must not only prove the existence of a

contract with the owner—which there is no dispute to—but it also must establish that it

performed pursuant to the relevant terms and conditions of the contract and thus is not the party

in breach. Judd Fire Prot., Ins. v. Davidson, 138 Md.App. 654, 662 (2001); see also Johnson v.

Brill, 295 S.W. 558 (1927, Mo.) (contractor not entitled to lien when he has not substantially

performed contract). A contractor may be entitled to a mechanics lien when its failure to abide

by the contract are the result of “slight omissions or defects in his performance.” Jones v. J.H.

Hiser Constr. Co., 60 Md.App. 671, 679 (1984). From the facts, Petitioner’s failure to abide by

the structural engineer’s drawings breached the contract, and such deliberate failure cannot be

classified as an oversight or a minor omission in any way shape or form. Id. As such these

failures do not entitle Petitioner to a mechanics lien.

Petitioner simply breached the contract, and now after demanding Respondent pay for

Petitioner’s mistake, resorts to asserting a mechanics lien upon her property. As a result, the

Court cannot grant Petitioner a mechanics lien against Respondent’s property.

II. Petitioner's work on the Subject Property did not adhere to the terms of the
contract
Petitioner violated the contract by failing to comply with direct orders contained therein. As

per the contract, Petitioner was required to submit shop drawings to be reviewed by

Respondent’s structural engineer before work was to begin. The drawings were submitted and
the structural engineer made corrections that needed to be implemented. Notably, the engineer

required bump-outs in the structural framing for exterior EIF’s.

Petitioner was aware of this requirement. However, not only did Petitioner fail to perform the

required work. Petitioner also failed to communicate that this work was not going to be done,

while advancing the project at Respondent’s request. It was a month later when Respondent

called Petitioner’s work into question. At that point, Petitioner informed Respondent that

Petitioner had no intention of installing the bump-outs. When Respondent informed Petitioner

that this was not acceptable, Petitioner stopped all work on the job site.

Petitioner attempted to avoid key terms in the contract through omission. Once this

omission was noted, Petitioner refused to build out as required. Rather than address the

omission, Petitioner opts to rely on the Doctrine of Substantial Performance as an attempt to get

payment in full. This is nothing more than an attempt by Petitioner to escape accountability at

Respondent’s expense. Petitioner is accountable for the work and should be held liable for the

outstanding work. In the interim, the Respondent should not have to fight a mechanics lien for

insufficient work.

Additionally, the mechanics lien is preventing Respondent from doing the necessary

refinancing of the Subject Property needed to finish the construction Petitioner refuses to do.

While the Respondent may be entitled to a day in court, they are not entitled to bringing the

entire project to a standstill while they await that day in court.

III. Respondent never agreed to the change order at the core of the dispute
As a creature of statute, a mechanic’s lien is allowed only if it comes within the plain and

obvious meaning of the statute. Giles & Ransome v. First Nat’l Realty Corp., 238 Md. 203, 205

(1965.) Petitioner carries the burden of establishing a sufficient factual basis to record a
mechanics lien. §9-106(b)(2.). Further, proving the existence of debt owed is not a burden to be

placed on Respondent’s shoulders. The unambiguous language of §9-104(f)(3) clearly assigns

the contractor with the burden of proving indebtedness. F. Scott Jay & Co. v. Vargo, 112 Md.

App. 354, 360-61 (1996). Respondent is not required to pay Petitioner amounts not agreed upon

in writing in the contract. See Schneider v. Menaquale, 187 Md. 202 (1946) (A house contractor

was not entitled to a lien where house owner did not agree to additional surcharge outside of the

agreed to contract contractor used to establish the lien.); see also §9-104(f)(3) (“the lien of the

subcontractor being erected on the land of the owner... shall not exceed the amount by which the

owner is indebted under the contract at the time the notice is given.”).

Case precedent supports Respondent’s position. See Ridge Sheet Metal Co. V. Morrell,

69 Md. App. 364 (1986) (similarly situated to the case at hand with the use of an AIA contract,

“a subcontractor may establish a lien only up to the amount the homeowner is “indebted under

the contract”); Jones, 60 Md. App. 671 (a contractor is in the unique position under the contract

and should inform the owner of cost overruns prior to incurring additional charges that it then

asserts as the basis for its lien upon the property). The Jones court went on to hold the contractor

breached his contractual fiduciary duty to effectively inform the owner of costs and said breach

barred recordation of a mechanics lien for anything beyond the agreed upon cost. Id. at 676-79.

Respondent made payments for work done, as required by the contract. Petitioner adding

a $24,758.00 change order was an action Petitioner took outside the boundaries of the contract.

In addition, Petitioner materially breached the contract and walked off the job, creating the initial

breach of contract. Respondent should not bear the responsibility of Petitioner’s actions.

Petitioner should not be granted a mechanics lien for a set of circumstances Petitioner

unilaterally created.
 CONCLUSION
Petitioner failed to adhere to the terms of the contract. Petitioner failed to execute work

consistent with the contract, and in adding an additional fee without approval from the

Respondent, Petitioner unilaterally stepped outside of the boundaries of the contract. A plain

reading of the terms and in view of Petitioner’s actions, it is clear that Petitioner is not entitled to

a mechanics lien because it failed to establish any facts that it was not the cause of the breach of

contract or that its breach was slight thus enabling it to a lien. It is for these reasons that the

court must deny Petitioner’s request for a mechanic’s lien and dismiss Petitioner’s Complaint.

WHEREFORE, Respondent respectfully requests this Court to grant its Motion to

Dismiss Petitioner’s Petition to Establish and Enforce Mechanic’s Lien and Verified Complaint.

Respectfully submitted,

REQUEST FOR A HEARING

Respondent respectfully requests a hearing on the above filed matter.

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