MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
General Laws c. 254, § 4, limits the amount of a subcontractors lien to “the amount due or to become due under the original contract as of the date notice of the filing of the subcontract [was] given by the subcontractor to the owner.” In determining the amount due or to become due, the court must consider whether the general contractors conduct, as of the date the owner received notice of the subcontractors filing, reduced or terminated the general contractors right to further payment. See BloomSouth Flooring Corp. v. Boys & Girls Club of Taunton Inc., 440 Mass. 618, 623-624 (2003) (general contractors right to further payment terminated as of date general contractor abandoned contract and thereby committed willful default); Superior Mechanical Plumbing & Heating, Inc. v. Insurance Co. of the West, 81 Mass. App. Ct. 584, 589 (2012) (where contract required general contractor to provide proof of payment to subcontractors as condition precedent to subsequent payments, nothing more was to become due once general contractor absconded without paying subcontractors); Maverick Constr. Mgt. Servs., Inc. v. Fidelity & Deposit Co. of Md., Inc., 80 Mass. App. Ct. 264, 268-270 (2011) (nothing more was to become due after owner took possession of property where, at that time, contract breaches required remedial expenditures in excess of retainage). The party claiming the lien has the burden of proving that there was an amount to become due. See National Lumber Co. v. Inman, 77 Mass. App. Ct. 916, 918 (2010).
In this case, the only “amounts” not yet paid under the original contract between owner Michael Bruno and general contractor Kenneth Ivester as of the date Bruno received notice of the filings, made by subcontractor Alliance Rental Group, LLC (Alliance), were the deeds to two lots. From the record, pursuant to the original contract, it appears as if Ivesters right to receive the deeds to the lots was contingent on his completion of subdivision improvements. Bruno testified that the subdivision improvements were supposed to be completed by July 15, 2013, but that Ivester last worked on the subdivision improvements on October 4, 2018. Ivester testified that he substantially completed the subdivision improvements, that the remaining subdivision improvements could not be completed until buyers built their houses, and that it was his expectation that he would complete the subdivision improvements when those houses were built.
It seems as if the judge accepted Brunos testimony. The judge found that Ivester did not complete the work required under the original contract “and will not be completing the work,” although it is not clear whether the quoted phrase referred only to what was known at the time of trial or also referred to some earlier point in time, such as when Bruno received the notices of contract. Although the judge found that “[i]t was not a foregone conclusion that Ivester would fail to complete that work,” the burden of proof was on Alliance. This leaves questions of fact. We therefore remand for the trial judge to make further findings regarding whether Alliance met its burden to prove, by a preponderance of the evidence, that at the time it filed and Bruno received the notices of contract, any amount was or would become due under the original contract, i.e., that Ivester had taken or would take whatever steps were necessary, including but not necessarily limited to completing the subdivision improvements, to give rise to Brunos obligation to transfer the two lots to Ivester.
General Laws c. 254, § 4, also requires, pertinent here, a subcontractor to file a notice of contract:
“ninety days after the last day a person entitled to enforce a lien under section two or anyone claiming by, through or under him performed or furnished labor or materials or both labor and materials to the project or furnished rental equipment, appliances or tools, or performed professional services.”
Section 2, in turn, requires a general contractor to file a notice of contract:
“not later than the earliest of: (i) sixty days after filing or recording of the notice of substantial completion ․; or (ii) ninety days after filing or recording of the notice of termination ․; or (iii) ninety days after such person or any person by, through or under him last performed or furnished labor or materials or both labor and materials.” G. L. c. 254, § 2.
Assuming the issue regarding an amount due or to become due is resolved in Alliances favor, there is an additional dispute regarding when Alliance (claiming through Ivester) last furnished rental equipment for Ivesters performance of work under the original contract, because it appears that is the date from which Alliances ninety-day filing period under G. L. c. 254, § 4, would be measured. Alliance argues that it furnished rental equipment for such performance for the entire time the equipment was on Brunos property. Bruno argues that Alliance furnished rental equipment for such performance only for those periods of time that the equipment was being used to perform work under the original contract, a period that the judge found ended on October 4, 2018. There is a third possibility, which is that Alliance furnished rental equipment for such performance for those periods of time that the equipment was being used to perform work under the original contract (the last day of which was October 4, 2018), plus any reasonable periods of nonuse with respect to the original contract. We decline to answer this question of law at this time given the unresolved threshold question regarding an amount due or to become due. However, in the interest of judicial economy and to avoid the possibility of a second remand, we ask the trial judge to make further factual findings regarding how long after October 4, 2018, it would have been reasonable for Ivester to continue renting equipment to perform work under the original contract.
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Consequently, while retaining jurisdiction, we remand the matter to the trial judge for further findings on the questions referenced above. Notwithstanding the burden of proof at trial, the judge may hold such further evidentiary hearings as the judge, in his discretion, deems necessary and appropriate. The judge shall, within 120 days of entry of the rescript, provide answers to those questions raised above and such findings shall be filed by the parties with the Appeals Court. There shall be no further appellate briefing pending further order of this court. Appellate proceedings are stayed pending further order of this court.
So ordered.
remanded and stayed
FOOTNOTES
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. We note that these factual findings may also have bearing on the amount of the liens, and whether Alliance could claim liens for the entire duration of its rental agreements with Ivester, or the entire time the pieces of equipment were on the property.