As a Virginia construction attorney representing those in the construction industry, mechanic’s liens are near and dear to my heart. The enforcement of mechanic’s lien rights in Virginia is a two-step process. The first step is the recording of a properly-timed memorandum of lien that includes all of the statutorily required information. The second step is a suit to enforce that memorandum of lien filed in Circuit Court. A recent case out of Norfolk, VA examined the first of these steps.
In Central Radio Co. v. Warwick Builders, et al., and as Count III of a three-count Complaint, the Plaintiff, Central Radio Co., alleged that the Defendant, Warwick Builders, recorded a memorandum of lien that Warwick knew to be without merit and therefore committed an abuse of process. However, Warwick did not file any Circuit Court suit to enforce that lien. Central Radio Co. essentially alleged that the filing of the memorandum by itself constituted an attempt to extort payment and therefore was an abuse of process.
Of course, for there to be an “abuse of process,” the recording of the memorandum without the additional step of the enforcement action must constitute “process.” On this point, the Court agreed with Warwick and sustained Warwick’s demurrer to the abuse of process count. After a good analysis of what in Virginia constitutes “process,” the Norfolk Circuit Court concluded:
In the absence of a suit to enforce, as in this case, where a claimant has not served the other party with a complaint and summons, the mere filing of a mechanic’s lien alone does not constitute ‘process.’
In short, the mere recording of a lien, meritorious or otherwise, does not invoke the power of the Court to the point that such a recording can be the basis of an abuse of process cause of action.
This short letter opinion is a good and quick read on the interaction of mechanic’s liens and judicial process. I highly recommend that you take the relatively small amount of time necessary to read it in its entirety.
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