What is the name of your state? HI
I sued under a Mechanics Lien in order to attach a lien against the property of a former friend I did contract work for but didn't pay me. After I filed, I discovered that the Statute of Limitations has ran and I would be barred from bring this Mechanics Lien suit.
The other party's attorney wanted me to sign a stipulation to a motion to dismiss WITH PREJUDICE. As I wanted to still claim money under an assumpsit theory, I ran this by an attorney I knew who said it was ok to sign a motion to dismiss with prejudice since this would bar any further MECHANICS LIENS against the defendant, (but not prohibit a suit for an action in assumpsit).
In my state, the statute for Contractors is specific. Before one begins work on the property, a written estimate must be given, contract presented and executed before commencement of the work. I had failed to go through all of the formal requirements as the person I did the work for was (at one time) my friend and we go way back.
Anyways, there are two recent state cases, one in the Apellate court and one from the Supreme Court where the courts held that a contractor who violates the formality of a written contract cannot attach a lien, however, may recover in an action in quantum meruit.
As I previously mentioned, I agreed to a dismissal with prejudice of the mechanics lien because 1) I knew that the SOL had ran and even if I didn't, 2) These formalities of the contract were not adhered to. So after I signed the stipulation, I filed an action in assumpsit.
To make the story short and cut through the chase, The judge not only dismissed the assumpsit case (res judicata), she sanctioned me with a fine. (allowed in my state).
She stated that a dismissal with prejudice acts as a complete bar against any claim forevermore on this matter.
I attempted to convince her that I signed the dismissal with prejudice against the MECHANICS LIEN and nothing else. The actual words were "....that the Mechanics Lien and all claims filed are hereby dismissed with prejudice".
I explained that when a lien is filed against the property, it survives a bankruptcy while a judgment for case is discharged in bankrupcy and therefore, not apples and oranges.
She explained that a Lien's eventual result is money and similarily, a cash judgment is money, both identical sums were in the mechanics lien as well as the assumpsit action so to her, it is the same parties, identical claims and same cause of action.
I want to appeal. In the appeal, I want to point out to the appellate court that two very recent cases (mentioned above) held that a contractor who had violated the Contractor statute had the opportunity to pursue an assumpsit claim under quantum meruit.
These 2 cases, one at the ICA and the other at the Supreme Court level, both held that a Lien is a different beast than an assumpit claim for money owned. That this judge committed an abuse of discretion by calling them the same despite a higher court ruling to the contrary.
Would you appeal?

