     IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ___________

Filing Date: December 8, 2015

NO. 32,661

SONIDA, LLC,

      Plaintiff-Appellee,

v.

SPOVERLOOK, LLC,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Violet C. Otero, District Judge

Sommer, Karnes & Associates, LLP
Karl H. Sommer
James R. Hawley
Santa Fe, NM

for Appellee

Keleher & McLeod, P.A.
W. Spencer Reid
Thomas C. Bird
Justin B. Breen
Albuquerque, NM

for Appellant
                                       OPINION

KENNEDY, Judge.

{1}   Defendant SPOverlook, LLC, (SPO) appeals an award of attorney fees to

Plaintiff Sonida, LLC (Sonida), whom the district court found to be the prevailing

party in a “dispute arising out of or relating to a lien action” under NMSA 1978,

Section 48-2-14 (2007). The award of attorney fees was made following a jury trial

that awarded money to both parties following a dispute over construction of a house.

SPO asserts that Sonida’s lien was invalid, that the district court’s denial of its motion

for summary judgment based on the invalidity of Sonida’s lien was erroneous, and

that an invalid lien cannot support the award of fees.

{2}   The contents of mechanics’ and materialmen’s liens are prescribed by statute,

NMSA 1978, §§ 48-2-1 to -17 (1880, as amended through 2015), and require

specifically that any claim “must be verified by the oath of [the claimant] or of some

other person.” Section 48-2-6. We face two questions in this case: can Sonida prevail

on a claim to foreclose an unverified materialmen’s lien, and was the district court’s

award of attorney fees based on work performed in conjunction with “contract and

lien claims” sufficiently justified as a “dispute arising out of or relating to a lien

action” to permit the award? Section 48-2-14.
{3}   We hold that even in light of decades of liberal construction and permitting

substantial compliance in drafting lien claims, Sonida’s unverified lien was void ab

initio. To the extent that no valid lien existed, nothing supported an award of attorney

fees predicated on a claim “arising out of or related to a lien[.]” Section 48-2-14.

Since the district court’s sole justification for the award was Section 48-2-14, we

conclude that the award of attorney fees to Sonida was erroneous, and we reverse the

district court, remanding for entry of an amended judgment.

BACKGROUND

{4}   The parties do not dispute the facts underlying this appeal. Real estate

developer SPO contracted with New Mexico Dream Home, LLC (NMDH) to

construct a house in Sandoval County for a television show. SPO in turn

subcontracted with home-builder Sonida to build the home, agreeing to pay Sonida

approximately one million dollars for the job. Before construction began, SPO and

Sonida did not have a written agreement between them, although subsequent

arrangements were reached, and Sonida began construction of the home. As

construction went forward, NMDH issued three payments of approximately $250,000

each to SPO. SPO forwarded two payments to Sonida. A dispute arose when SPO did

not forward a third payment to Sonida.




                                           2
{5}    Sonida filed a claim of lien against the home to protect its interests, and then

amended it twice; all of which were recorded in the Sandoval County Clerk’s office.

All three lien documents were signed by a Sonida representative and acknowledged

before Sonida’s attorney, who notarized them. However, none of Sonida’s lien

documents included any language verifying upon oath the truth of its contents.

{6}    Sonida then brought suit in the district court against SPO and NMDH for the

money it maintained it was owed. In Count 4 of Sonida’s complaint, Sonida sought

foreclosure of its lien. SPO’s answer denied that Sonida was entitled to file a claim

of lien, foreclose on the lien that it had filed, or collect attorney fees for litigating its

foreclosure. SPO thereafter filed a motion for summary judgment asserting that the

lien claim was invalid and unenforceable because it was not verified pursuant to

Home Plumbing & Contracting Co. v. Pruitt, 1962-NMSC-075, 70 N.M. 182, 372

P.2d 378. In its response to SPO’s motion, Sonida argued that SPO had waived its

‘void for lack of verification’ argument because SPO had not raised it as an

affirmative defense in the its answer. The district court denied SPO’s motion without

explanation, and the case proceeded to trial.

{7}    Following a jury trial in which both parties received awards, Sonida moved for

an award of attorney fees claiming it was the prevailing party in a lien action under

Section 48-2-14. The parties submitted proposed findings of fact and conclusions of



                                             3
law, including SPO’s renewed assertion that Sonida was not the prevailing party in

a lien action. The district court entered its final judgment granting Sonida’s request

for attorney fees. In separate findings and conclusions, the district court found that

“Sonida prevailed on its lien claim against . . . Defendant SPO” and concluded that

“[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.” Section 48-2-14. SPO now appeals the district court

award to Sonida of $136,375.75 in attorney fees.

DISCUSSION

Standard of Review

{8}   Ordinarily, we review an award of attorney fees for an abuse of discretion. Rio

Grande Sun v. Jemez Mountains Pub. Sch. Dist., 2012-NMCA-091, ¶ 10, 287 P.3d

318. “Section 48-2-14 empowers the court to award reasonable attorney fees in the

district and supreme courts in actions to enforce mechanics’ and materialmen’s liens.”

Lenz v. Chalamidas, 1991-NMSC-099, ¶ 2, 113 N.M. 17, 821 P.2d 355 (emphasis

omitted). However, our determination of whether an unverified lien satisfies the

requirements of Section 48-2-6 involves the interpretation of a statute that we review

de novo. State ex. rel. Madrid v. UU Bar Ranch Ltd. P’ship, 2005-NMCA-079, ¶ 11,

137 N.M. 719, 114 P.3d 399. With regard to SPO’s motion for summary judgment,



                                            4
where there are no genuine issues of material fact, and the movant may be entitled to

judgment as a matter of law, our review is also de novo. Self v. United Parcel Serv.,

Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582.

I.     Sonida Did Not File Valid Claims of Lien

{9}    We begin by addressing SPO’s argument that the district court erred by failing

to reject as a matter of law Sonida’s unverified claim of lien. In order to analyze this

issue, we must discuss the requirements for a claim of lien to be valid.

{10}   Section 48-2-61 generally sets out two requirements for the contents of a valid

lien: a statement of the nature of the claim against the property owner, and a

verification by oath. The purpose of the former is to “give notice [to all interested

parties] of the extent and nature of the lienor’s claim.” Garrett Bldg. Ctrs., Inc. v.

Hale, 1981-NMSC-009, ¶ 10, 95 N.M. 450, 623 P.2d 570 (internal quotation marks

       1
         “Every original contractor, within one hundred and twenty days after the
completion of his contract, and every person, except the original contractor, desiring
to claim a lien pursuant to Sections 48-2-1 through 48-2-19 NMSA 1978, must,
within ninety days after the completion of any building, improvement or structure, or
after the completion of the alteration or repair thereof, or the performance of any
labor in a mining claim, file for record with the county clerk of the county in which
such property or some part thereof is situated, a claim containing a statement of his
demands, after deducting all just credits and offsets. The claim shall state the name
of the owner or reputed owner, if known, and also the name of the person by whom
he was employed, or to whom he furnished the materials, and shall include a
statement of the terms, time given and the conditions of the contract, and also a
description of the property to be charged with the lien, sufficient for identification.
The claim must be verified by the oath of himself or of some other person.”
(Emphasis added.)

                                           5
and citation omitted). Since they are not in dispute in this case, we are not concerned

with the sufficiency of Sonida’s statement of the debt and terms of the claim.

{11}   As to the verification requirement, we first observe that the use of the word

“must” in the statute requiring verification by oath conveys the Legislature’s setting

a mandatory precondition to the lien’s validity. The Uniform Statute and Rule

Construction Act compels us to regard the word “must” as expressing “a duty,

obligation, requirement or condition precedent.” NMSA 1978, § 12-2A-4(A) (1997);

see also, State v. Lujan, 1977-NMSC-010, ¶ 4, 90 N.M. 103, 560 P.2d 167 (holding

that the word “must” in the statute indicates “that the provisions of a statute are

mandatory and not discretionary”).

{12}   It is undisputed that the claims of lien filed in this case were not verified.

Sonida attempts to address this “technical defect” by arguing that the claim as filed

satisfied the purposes of the statute, which should be “liberally construed,” and by

implication, permits “substantial compliance” by the claimant. New Mexico is a state

that affords liberal construction to the drafting of lien notices, and permits substantial

compliance with Section 48-2-6. Chavez v. Sedillo, 1955-NMSC-039, ¶ 17, 59 N.M.

357, 284 P.2d 1026. To a point. “[T]he reason which underlies the [liberal

construction rule] is that the claim of lien must not only contain a statement of the

terms, time given and conditions of the contract, but such statement must be true.” Id.



                                            6
(emphasis omitted). However, no New Mexico case has yet made the verification

requirement superfluous. For reasons that follow, we conclude that even in a common

law atmosphere with plenty of slack for drafting liens, there are requirements that are

immutable, particularly a verification upon oath of the underlying claim that must be

set out in the lien notice. Sonida misapprehends the latitude our courts have provided

claims of lien as affording sanction to their total lack of compliance with the

verification requirement of the statute.

A.     Verification Requires a Formal Assertion of the Truth of the Lien’s
       Contents

{13}   By definition, “verification” is “confirmation of correctness, truth, or

authenticity by affidavit, oath, or deposition.” Black’s Law Dictionary, 1732 (1968

4th ed). Our courts’ construction of what it means for a lien to “be verified by the oath

of [the claimant] or of some other person” is of long standing. Section 48-2-6. “In the

early days of our history, [our Supreme Court] was disposed to hold that the

mechanics lien law was in derogation of the common law and should be strictly

construed[.]” Home Plumbing, 1962-NMSC-075, ¶¶ 6-7 (internal quotation marks

and citation omitted). This construction applied to the verification requirement.

Finane v. Las Vegas Hotel & Improvement Co., 1885-NMSC-023, ¶ 13, 3 N.M. 411,

5 P. 725 (“[Verification] is a substantial and necessary requirement, and must be

complied with in order to make the claim of lien effectual. The statute makes it


                                           7
obligatory by the use of the word ‘must,’ and we think it was error for the court below

to have admitted the [unverified] paper in evidence.”), overruled on other grounds

by Ford v. Springer Land Ass’n, 1895-NMSC-011, 8 N.M. 37, 41 P. 541.2

{14}   In Minor v. Marshall, 1891-NMSC-029, 6 N.M. 194, 27 P. 481, the Supreme

Court of the Territory New Mexico loosened the requirements for stating the claim

itself under the statute, permitting substantial compliance to suffice in alleging its five

factual requirements. Id. ¶ 6. With regard to the requirement that the claim be

“verified by the oath of himself, or of some other person[,]” it held “if such claim is

not verified, it is no notice, and binds no one; it raises no lien whatever.” Id. ¶ 7

(internal quotation marks and citation omitted). Although the strict view as to a lien’s

factual claims was repudiated in Ford, as noted above, this was only to the extent that

the statements covered by the claimant’s oath be liberally construed. Ford went on

to explain that “the notice of claim of lien, being the foundation of the action, must

contain all the essential requirements of the statute, and the failure or omission on the

part of the person claiming the lien of any of the substantial requisites of the statute

is fatal, and will defeat the action.” 1895-NMSC-011, ¶ 7. The verification

requirement has always been regarded as a requisite element of compliance with the

       2
        Although Ford is generally recognized as overruling Finane, and instituting
the “liberal construction,” we note that the claim of lien in Ford was properly
verified, and the issue of verification was not raised. 1895-NMSC-011, ¶ 9. Ford
applied solely to the description of the claim. Id. ¶ 8.

                                            8
statute. Hot Springs Plumbing & Heating Co. v. Wallace, 1933-NMSC-092, ¶ 40, 38

N.M. 3, 27 P.2d 984 (citing Lyons v. Howard, 1911-NMSC-039, 16 N.M. 327, 117

P. 842), held that notwithstanding liberal construction, and substantial compliance

with verification, the claimant must still “verify [the] same on his own oath, or the

oath of some other person” to verify the good faith of his claim of right to a lien. Id.

{15}   Although the requirement of verification on oath has not changed, there has

been some “liberal construction” permitted with regard to verification. Under Lyons,

“[n]o particular form of verification is required by our statute, nor is it specifically

required thereby that the verification shall be true to the knowledge of affiant.”

Lyons, 1911-NMSC-039, ¶ 5 (emphasis added). Neither is it required that the affiant

has personal knowledge of the claim’s truth. Id. ¶ 6. This is, however, the extent of

“liberal construction” permitted a lienor’s verification of good faith under Section 48-

2-6. However liberally the contents of a notice of lien might be construed, no case to

date obviates the specific requirement for a positive verification upon oath of the

contents of a notice of lien, and Sonida directs us to none. See, e.g., ITT Educ. Servs.,

Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d

969 (holding that this court does not consider arguments not supported by citation to

authority).




                                           9
B.     Home Plumbing and Garrett Affirm the Requirement of Verification

{16}   Liberal construction of the lien statute cannot reach so far as to rescue an

unverified lien. In Home Plumbing, two related but separate businesses sought to

foreclose on their respective claims of lien against property owned by the defendant.

1962-NMSC-075, ¶ 1. Both claims of lien were signed by the same person. On the the

first claim of lien, as in this case, the signature was only followed by “an

acknowledgment in the form generally provided by § 43-1-9, N.M.S.A.1953, for

acknowledging instruments affecting real estate.” Home Plumbing, 1962-NMSC-075,

¶ 4. The second indicated that the person who signed it, “[b]eing duly sworn . . . has

read said claim and knows the contents thereof; and that the matters and facts therein

started (sic) are true and correct.” Id. ¶ 5 (internal quotation marks and citation

omitted). Because the question in the case was “if the two claims here in issue are

verified by oath” as required by the statute, id. ¶ 6, the court concluded that the latter

claim was verified. Id. ¶ 9. The Court stated that, owing to the absence of “any words

whatsoever which by intendment, plain, or otherwise, ‘were designed to operate as

a verification,’ ” it did not “find where the statement of claim was in any manner

sworn to.” Id. ¶ 10 (internal quotation marks omitted). The Court held that liberal

construction did not apply:

       While reiterating our adherence to the rule of liberal construction, we
       are convinced that with a total absence of any words confirming


                                           10
       correctness, truth or authenticity by affidavit, oath, deposition or
       otherwise, to conclude that the acknowledgment to the instant claim of
       lien was a sufficient compliance with the requirements of a verification
       would be stretching the rule of liberal construction beyond recognition,
       and would approach judicial repeal of the legislative mandate that
       claims should be verified by oath.

Id. ¶12. Garrett also recognizes that Section 48-2-6 requires “that a materialman’s

claim of lien must be verified by the oath of the party or some other person.” 1981-

NMSC-009, ¶ 3.

{17}   Because the ultimate goal in statutory construction “is to ascertain and give

effect to the intent of the Legislature[,]” State v. Cleve, 1999-NMSC-017, ¶ 8, 127

N.M. 240, 980 P.2d 23, we hold that the intent of the Legislature in enacting Section

48-2-6 is to require some positive affirmation of good faith undertaken upon oath as

to the contents of a notice of lien to render any claim thereof valid. Following Home

Plumbing and Garrett, the absence of some discernable and formal confirmation of

the truth, correctness, or authenticity of a claim of lien by the claimant or another

person constitutes no verification, and any claim of lien that fails in that regard

creates no lien.

C.     Sonida’s Concept of “Substantial Compliance” Is Unavailing

{18}   According to Sonida, in Garrett, our “Supreme Court recognized that the liens

at issue, even though they did not meet the statutory requirements, were filed and

recorded and were sufficient notice to the parties that the liens existed.” (Emphasis


                                         11
omitted.) It seems Sonida urges us to adopt a liberal construction rule to obviate

verification entirely, as they suppose the Supreme Court applied it in that case.

Sonida is not specific in its brief as to which “statutory requirements” Garrett dealt

with, but Sonida immediately quotes New Mexico Properties, Inc. v. Lennox

Industries, Inc. (Lennox), 1980-NMSC-087, 95 N.M. 64, 618 P.2d 1228, holding that

the lack of an acknowledgment does not defeat “an otherwise valid lien” that had

been filed and recorded between the parties to the action. We take this as an

indication that perhaps Sonida believes that since Garrett permitted unrecorded

notices to give effect to notice between “parties to the action,” 1981-NMSC-009, ¶ 9,

its acknowledgments will carry the day. However in both Garrett and Lennox, the

liens were properly verified. Lennox, 1980-NMSC-087, ¶¶ 2, 7; Garrett, 1981-

NMSC-009, ¶ 5. Both cases specifically recognized that verification was a mandatory

requirement of the lien statute. Lennox, 1980-NMSC-087, ¶ 6; Garrett, 1981-NMSC-

009, ¶ 5. Sonida’s reliance on both cases fails because the liens it filed were not

“otherwise valid” under Section 48-2-6, whatever the status of a lien’s

acknowledgments. Thus, Sonida’s briefing misstates the law in two important

respects. First, both Lennox and Garrett specifically affirmed “the statutory

requirement that the lien must be verified by oath of a party.” Garrett, 1981-NMSC-

009, ¶ 5. Second, in Lennox, our Supreme Court specifically recognized that an



                                         12
acknowledgment is “insufficient to comply with the verification requirement of

Section 48-2-6.” Lennox, 1980-NMSC-087, ¶ 6. Without compliance with the

verification to establish the lienor’s good faith in attaching its claim to the property

of another, and thereby putting the claimant’s “skin in the game” so to speak,

Sonida’s acknowledgments cannot in any way validate its claims of lien.

D.     Acknowledgments Do Not Substitute For Verification

{19}   Home Plumbing clearly establishes that the total absence of words of

verification in a claim of lien renders it “unenforceable.” 1962-NMSC-075, ¶ 12. “It

is established in law that a verification is a sworn statement of the truth of the facts

stated in the instrument which is verified. A verification differs from an

acknowledgment in that the latter is a method of authenticating an instrument by

showing that it was the act of the person executing it.” H.A.M.S. Co. v. Elec.

Contractors of Alaska, Inc., 563 P.2d 258, 260 (Alaska 1977). Section 48-2-6 does

not require that liens contain an acknowledgment, and a lien’s validity is not affected

by the lack of acknowledgment under NMSA 1978, Section 14-8-4 (2013). See § 14-

8-4 (“Acknowledgment necessary for recording; exceptions.”); Lennox, 1980-NMSC-

087, ¶ 7 (“Absent a valid acknowledgment, an instrument may not be treated as a

recorded instrument.”). Our Supreme Court has stated that although the lien statute

is remedial in nature and liberally construed, our appellate courts “will not apply



                                          13
liberal construction to create a lien where none is authorized.” Vulcraft v. Midtown

Bus. Park, Ltd., 1990-NMSC-095, ¶ 12, 110 N.M. 761, 800 P.2d 195. As in Home

Plumbing, we cannot take up Sonida’s invitation to write out of existence even a

liberally-construed verification requirement. We know from Lennox, 1980-NMSC-

087, ¶ 2, that pre-printed lien forms with sufficient verifications are available for sale.

Had Sonida’s attorney verified the liens, rather than only notarized their

acknowledgments, the lien would have been valid. See Marsh v. Coleman,

1979-NMSC-067, ¶ 23, 93 N.M. 325, 600 P.2d 271 (holding that an attorney can

verify a lien stating a belief that the claims were true); but see, In re Reif,

1996-NMSC-026, ¶ 10, 121 N.M. 758, 918 P.2d 344 (holding that a verification

signed “for” the client “by” the attorney was “a nullity, being neither the oath [of the

client] nor [the attorney]”).

E.     Sonida’s Lien Was Void Ab Initio

{20}   We are not alone in our view that these New Mexico cases uphold the

verification requirement. Both Home Plumbing and Garrett were recognized by the

Wyoming Supreme Court as demonstrating that, even under a liberal construction and

substantial compliance rule, “the courts require some language in the lien statement

which indicates the subscriber swears to the truth of the materials contained therein

in order to comply with the verification requirement.” White v. Diamond Int’l Corp.,



                                            14
665 P.2d 463, 468 (Wyo. 1983). Similarly, the Utah Supreme Court cited Home

Plumbing as one of a number of cases holding that, although inclusion of sufficient

specified facts can constitute substantial compliance with a lien statute, the

verification requirement was a separate portion of the statute that articulates

“mandatory conditions precedent to the very creation and existence of the lien[,]”

without which “no lien is created.” First Sec. Mortg. Co. v. Hansen, 631 P.2d 919,

922 (Utah 1981) (internal quotation marks and citation omitted); Home Plumbing,

1962-NMSC-075, ¶ 12 (“[T]he court erred in its conclusion that the [unverified lien]

. . . was enforceable.”). Put another way in First Security Mortgage, “Verification is

not a hypertechnicality that we can discount. Without verification, no lien is created.

Our statute leaves no room for doubt as to the requirement of a verified notice of

claim . . . . [S]ince a mechanic’s lien is statutory and not contractual, a lien cannot be

acquired unless the claimant complies with the statutory provisions.” 631 P.2d at 922.

“The simple and conclusive answer to the suggestion is that a mechanic’s lien never

comes into existence unless the notice upon which it is founded substantially

complies with the statute which authorizes the creation of such liens.” Toop v. Smith,

73 N.E. 1113, 1115 (N.Y. 1905).

{21}   Irrespective of any latitude permitted in its form, the absence of a lien

claimant’s verification upon oath defeats an immutable requirement under Section 48-



                                           15
2-6. Sonida’s failure to verify the claims of lien that it filed thus caused no valid lien

to be created. We hold that because, according to Sonida, “the Claims of Lien lack

the verification,” they are void ab initio, because no valid lien was created. They

could not therefore support a foreclosure action on the lien as a matter of law, State

ex rel. Madrid v. UU Bar Ranch Ltd. P’ship, 2005-NMCA-079, ¶ 19, 137 N.M. 719,

114 P.3d 399 (holding that failure to comply with a clear, unambiguous and

mandatory statutory requirement or condition precedent invalidated the subsequent

action), or provide any basis for action under Section 48-2-14 or attorney fees to be

awarded under that statute.

Sufficiency of a Lien Is Not an Affirmative Defense That Must Be Raised In the
Complaint

{22}   SPO specifically denied in its answer that the lien(s) filed entitled Sonida either

to foreclose on them, or to any award of attorney fees in an action based upon them.

It followed up its averments by filing a motion for summary judgment on Sonida’s

foreclosure claim, requesting that the district court declare the “Claims of Lien to be

void ab initio” based specifically on Home Plumbing, as well as failure to comply

with Section 48-2-6, even by substantial compliance. Sonida’s response to the motion

conceded that “as to the form of the Claims of Lien there is no disputed fact[,]” yet

asserted that SPO was not entitled to judgment as a matter of law for failure to plead




                                           16
a fatal defect in the liens as an affirmative defense. The district court denied SPO’s

motion.

{23}   Both the district court and Sonida seem to be laboring under a misconception.

SPO’s pleading that Sonida’s lien was void ab initio for failure to comply with the

statute (both with regard to its factual contents and its verification) is a purely legal

question directed to an essential element of Sonida’s foreclosure action. Sonida’s

response averred that it had no obligation to “specifically plead the verification or

other specific contents of the Claims of Lien, even though those elements might form

a condition precedent to recovery on the Claims of Lien.” This is incorrect as a matter

of law. “A lienholder must . . . prove compliance with the Act’s provisions to

establish his right to the statutory remedy and cannot claim surprise when a defendant

attempts to defeat his claim by proof of noncompliance.” Cordeck Sales, Inc., v.

Constr. Sys., Inc., 917 N.E.2d 536, 541 (Ill. App. Ct. 2009). Our courts have always

held that when a lien is specifically created by statute, the lien must comply with the

requirements of the statute. Air Ruidoso, Ltd. v. Exec. Aviation Ctr., Inc., 1996-

NMSC-042, ¶ 6, 122 N.M. 71, 920 P.2d 1025 (holding that “[a] lienor who seeks to

enforce a statutory lien must comply with any statutory requirement with respect to

enforcement of such a lien” (quoting Unger v. Checker Taxi Co., 174 N.E.2d 219,

221 (Ill. App. Ct. 1961)).



                                           17
{24}   The proper verification of a lien is a mandatory predicate to its validity, and the

existence of a valid lien is an element of a cause of action in foreclosure of it. Sonida

is obligated to affirmatively demonstrate its compliance with Section 48-2-6 to plead

a prima facie case in its complaint. Sonida’s complaint alleged nothing more than it

was “entitled to claim” a lien. SPO’s raising the lien’s validity is not an affirmative

defense if based on Sonida’s failure to comply with the statute’s requirements. See

Cordeck, 917 N.E.2d at 541 (holding that the assertion of statutory non-compliance

is no surprise to the plaintiff, for whom compliance is an element of his cause of

action, and cannot be held to be an affirmative defense); Sullivan Contracting, Inc.

v. Turner Constr. Co., 875 N.Y.S.2d 695, 697 (N.Y. App. Div. 2009).

{25}   Sonida’s reliance on Beyale v. Arizona Public Service Co., 1986-NMCA-071,

105 N.M. 112, 729 P.2d 1366, to defeat SPO’s motion as an affirmative defense “that

was not pled in their answer” is of no avail. In Beyale, we clearly stated that an

affirmative defense is a “state of facts provable by [a] defendant that will bar [a]

plaintiff’s recovery once a right to recover is established.” Id. ¶ 13. The invalidity of

the lien in this case is based in a defect barring the very right to recover on the

elements of the claim as a matter of law, not facts. As such, it is not an affirmative

defense. We have already held that a right to recovery cannot be established based on

an invalid lien. There is no virtue in Sonida’s assertion that it is not obligated to



                                           18
plead as part of its complaint those elements of the lien under Section 48-2-6 as a

predicate for recovery; regardless of its pleading, it had the obligation to meet its

burden of proof.

{26}   Further, in Beyale, a workers’ compensation case, we held that because a

failure to give notice of an injury had not been raised by the defense until a motion

for a new trial, it was fairly denied by the trial court. We specifically stated that

although the defense must have been pled, it did not have to be specifically pled in

the defendant’s answer, as would an affirmative defense. 1986-NMCA-071, ¶ 24. In

this case, SPO raised the issue of the defect in the lien in its motion for summary

judgment, and Sonida conceded in its response that there were no material facts in

dispute concerning the form of the liens. From both parties’ pleadings regarding the

issue, we cannot but conclude that Sonida was aware of its obligations regarding

compliance with the statute.

CONCLUSION

{27}   Because no lien was created, no award of attorney fees can be “related to” or

“arise out of” an action based upon a nullity. For the foregoing reasons, we reverse

the district court’s award of attorney fees and remand for proceedings consistent with

this Opinion.




                                         19
{27} IT IS SO ORDERED.



                              RODERICK T. KENNEDY, Judge


WE CONCUR:


__________________________________
JAMES J. WECHSLER, Judge


__________________________________
MICHAEL D. BUSTAMANTE, Judge




                                20
