{ "id": 12167281, "name": "SONIDA, LLC, Plaintiff-Appellee, v. SPOVERLOOK, LLC, Defendant-Appellant", "name_abbreviation": "Sonida, LLC v. Spoverlook, LLC", "decision_date": "2015-12-08", "docket_number": "Docket No. 32,661", "first_page": "473", "last_page": "481", "citations": [ { "type": "official", "cite": "2016-NMCA-026" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "105 N.M. 112", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599044 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/105/0112-01" ] }, { "cite": "1986-NMCA-071", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0 }, { "cite": "875 N.Y.S.2d 695", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 5734552 ], "year": 2009, "pin_cites": [ { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/ad3d/60/1315-01" ] }, { "cite": "174 N.E.2d 219", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "pin_cites": [ { "page": "221" } ], "opinion_index": 0 }, { "cite": "122 N.M. 71", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322259 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/122/0071-01" ] }, { "cite": "1996-NMSC-042", "category": "reporters:neutral", "reporter": "NMSC", "year": 1961, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0 }, { "cite": "917 N.E.2d 536", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "541" }, { "page": "541", "parenthetical": "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" } ], "opinion_index": 0 }, { "cite": "73 N.E. 1113", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1905, "pin_cites": [ { "page": "1115" } ], "opinion_index": 0 }, { "cite": "631 P.2d 919", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10440584 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "922", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "922" } ], "opinion_index": 0, "case_paths": [ "/p2d/631/0919-01" ] }, { "cite": "665 P.2d 463", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10426099 ], "year": 1983, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/p2d/665/0463-01" ] }, { "cite": "121 N.M. 758", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566612 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0758-01" ] }, { "cite": "1996-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0 }, { "cite": "93 N.M. 325", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568671 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0325-01" ] }, { "cite": "1979-NMSC-067", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0 }, { "cite": "110 N.M. 761", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716902 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/110/0761-01" ] }, { "cite": "1990-NMSC-095", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "563 P.2d 258", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10452077 ], "year": 1977, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/p2d/563/0258-01" ] }, { "cite": "95 N.M. 64", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575438 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0064-01" ] }, { "cite": "1980-NMSC-087", "category": "reporters:neutral", "reporter": "NMSC", "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 2, 7" }, { "page": "\u00b6 6" }, { "page": "\u00b6 6" }, { "page": "\u00b6 7" }, { "page": "\u00b6 2" } ], "opinion_index": 0 }, { "cite": "1999-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257701 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0240-01" ] }, { "cite": "1998-NMCA-078", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834202 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0242-01" ] }, { "cite": "117 P. 842", "category": "reporters:state_regional", "reporter": "P.", "weight": 2, "opinion_index": 0 }, { "cite": "16 N.M. 327", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4684995 ], "opinion_index": 0, "case_paths": [ "/nm/16/0327-01" ] }, { "cite": "1911-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0 }, { "cite": "38 N.M. 3", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559180 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/38/0003-01" ] }, { "cite": "1933-NMSC-092", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 40" } ], "opinion_index": 0 }, { "cite": "27 P. 481", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "6 N.M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4651540 ], "opinion_index": 0, "case_paths": [ "/nm/6/0194-01" ] }, { "cite": "41 P. 541", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "8 N.M. 37", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4665058 ], "opinion_index": 0, "case_paths": [ "/nm/8/0037-01" ] }, { "cite": "5 P. 725", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "3 N.M. 411", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "59 N.M. 357", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589322 ], "weight": 3, "pin_cites": [ { "parenthetical": "emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/59/0357-01" ] }, { "cite": "1955-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0 }, { "cite": "90 N.M. 103", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869988 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0103-01" ] }, { "cite": "1977-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 4" } ], "opinion_index": 0 }, { "cite": "95 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575445 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0450-01" ] }, { "cite": "1981-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "weight": 6, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 3" }, { "page": "\u00b6 9" }, { "page": "\u00b6 5" }, { "page": "\u00b6 5" }, { "page": "\u00b6 5" } ], "opinion_index": 0 }, { "cite": "1998-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827320 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0396-01" ] }, { "cite": "2005-NMCA-079", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929136 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0719-01" ] }, { "cite": "113 N.M. 17", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723221 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/113/0017-01" ] }, { "cite": "1991-NMSC-099", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0 }, { "cite": "287 P.3d 318", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-091", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4190346 ], "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0524-01" ] }, { "cite": "70 N.M. 182", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2852399 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/70/0182-01" ] }, { "cite": "1962-NMSC-075", "category": "reporters:neutral", "reporter": "NMSC", "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 6-7" }, { "page": "\u00b6 1" }, { "page": "\u00b6 4" }, { "page": "\u00b6 12" }, { "page": "\u00b6 12" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1198, "char_count": 29201, "ocr_confidence": 0.777, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24681902303956718 }, "sha256": "5448ef96a84af0598522e9a8691004ed230b82be28a5e6975ae23db16a1201d6", "simhash": "1:3e26f632bec2ba4f", "word_count": 4806 }, "last_updated": "2023-07-14T22:30:56.942854+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RODERICK T. KENNEDY, Judge", "JAMES J. WECHSLER, Judge", "MICHAEL D. BUSTAMANTE, Judge" ], "parties": [ "SONIDA, LLC, Plaintiff-Appellee, v. SPOVERLOOK, LLC, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nKENNEDY, Judge.\n{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 \u201cdispute arising out of or relating to a lien action\u201d 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\u2019s lien was invalid, that the district court\u2019s denial of its motion for summary judgment based on the invalidity of Sonida\u2019s lien was erroneous, and that an invalid lien cannot support the award of fees.\n{2} The contents of mechanics\u2019 and materialmen\u2019s liens are prescribed by statute, NMSA 1978, \u00a7\u00a7 48-2-1 to -17 (1880, as amended through 2015), and require specifically that any claim \u201cmust be verified by the oath of [the claimant] or of some other person.\u201d Section 48-2-6. We face two questions in this case: can Sonida prevail on a claim to foreclose an unverified materialmen\u2019s lien, and was the district court\u2019s award of attorney fees based on work performed in conjunction with \u201ccontract and lien claims\u201d sufficiently justified as a \u201cdispute arising out of or relating to a lien action\u201d to permit the award? Section 48-2-14.\n{3} We hold that even in light of decades of liberal construction and permitting substantial compliance in drafting lien claims, Sonida\u2019s 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 \u201carising out of or related to a lien[.]\u201d Section 48-2-14. Since the district court\u2019s 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.\nBACKGROUND\n{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.\n{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\u2019s office. All three lien documents were signed by a Sonida representative and acknowledged before Sonida\u2019s attorney, who notarized them. However, none of Sonida\u2019s lien documents included any language verifying upon oath the truth of its contents.\n{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\u2019s complaint, Sonida sought foreclosure of its lien. SPO\u2019s 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\u2019s motion, Sonida argued that SPO had waived its \u2018void for lack of verification\u2019 argument because SPO had not raised it as an affirmative defense in the its answer. The district court denied SPO\u2019s motion without explanation, and the case proceeded to trial.\n{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 law, including SPO\u2019s renewed assertion that Sonida was not the prevailing party in a lien action. The district court entered its final judgment granting Sonida\u2019s request for attorney fees. In separate findings and conclusions, the district court found that \u201cSonida prevailed on its lien claim against. . . Defendant SPO\u201d and concluded that \u201c[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.\u201d Section 48-2-14. SPO now appeals the district court award to Sonida of $136,375.75 in attorney fees.\nDISCUSSION\nStandard of Review\n{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, \u00b6 10, 287 P.3d 318. \u201cSection 48-2-14 empowers the court to award reasonable attorney fees in the district and supreme courts in actions to enforce mechanics\u2019 and materialmen\u2019s liens.\u201d Lenz v. Chalamidas, 1991-NMSC-099, \u00b6 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\u2019ship, 2005-NMCA-079, \u00b6 11, 137 N.M. 719, 114 P.3d 399. With regard to SPO\u2019s motion for summary judgment, 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, \u00b6 6, 126 N.M. 396, 970 P.2d 582.\nI. Sonida Did Not File Valid Claims of Lien\n{9} We begin by addressing SPO\u2019s argument that the district court erred by failing to reject as a matter of law Sonida\u2019s unverified claim of lien. In order to analyze this issue, we must discuss the requirements for a claim of lien to be valid.\n{10} Section 48-2-6 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 \u201cgive notice [to all interested parties] of the extent and nature of the lienor\u2019s claim.\u201d Garrett Bldg. Ctrs., Inc. v. Hale, 1981-NMSC-009, \u00b6 10, 95 N.M. 450, 623 P.2d 570 (internal quotation marks and citation omitted). Since they are not in dispute in this case, we are not concerned with the sufficiency of Sonida\u2019s statement of the debt and terms of the claim.\n{11} As to the verification requirement, we first observe that the use of the word \u201cmust\u201d in the statute requiring verification by oath conveys the Legislature\u2019s setting a mandatory precondition to the lien\u2019s validity. The Uniform Statute and Rule Construction Act compels us to regard the word \u201cmust\u201d as expressing \u201ca duty, obligation, requirement or condition precedent.\u201d NMSA 1978, \u00a7 12-2A-4(A) (1997); see also, State v. Lujan, 1977-NMSC-010, \u00b6 4, 90 N.M. 103, 560 P.2d 167 (holding that the word \u201cmust\u201d in the statute indicates \u201cthat the provisions of a statute are mandatory and not discretionary\u201d).\n{12} It is undisputed that the claims oflien filed in this case were not verified. Sonida attempts to address this \u201ctechnical defect\u201d by arguing that the claim as filed satisfied the purposes of the statute, which should be \u201cliberally construed,\u201d and by implication, permits \u201csubstantial compliance\u201d 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, \u00b6 17, 59 N.M. 357, 284 P.2d 1026. To a point. \u201c[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.\u201d Id. (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.\nA. Verification Requires a Formal Assertion of the Truth of the Lien\u2019s Contents\n{13} By definition, \u201cverification\u201d is \u201cconfirmation of correctness, truth, or authenticity by affidavit, oath, or deposition.\u201d Black\u2019s Law Dictionary, 1732 (1968 4th ed). Our courts\u2019 construction of what it means for a lien to \u201cbe verified by the oath of [the claimant] or of some other person\u201d is of long standing. Section 48-2-6. \u201cIn 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[.]\u201d Home Plumbing, 1962-NMSC-075, \u00b6\u00b6 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, \u00b6 13, 3 N.M. 411, 5 P. 725 (\u201c[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 obligatory by the use of the word \u2018must,\u2019 and we think it was error for the court below to have admitted the [unverified] paper in evidence.\u201d), overruled on other grounds by Ford v. Springer Land Ass\u2019n, 1895-NMSC-011, 8 N.M. 37, 41 P. 541.\n{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. \u00b6 6. With regard to the requirement that the claim be \u201cverified by the oath of himself, or of some other personf,]\u201d it held \u201cif such claim is not verified, it is no notice, and binds no one; it raises no lien whatever.\u201d Id. \u00b6 7 (internal quotation marks and citation omitted). Although the strict view as to a lien\u2019s factual claims was repudiated in Ford, as noted above, this was only to the extent that the statements covered by the claimant\u2019s oath be liberally construed. Ford went on to explain that \u201cthe 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.\u201d 1895-NMSC-011, \u00b6 7. The verification requirement has always been regarded as a requisite element of compliance with the statute. Hot Springs Plumbing & Heating Co. v. Wallace, 1933-NMSC-092, \u00b6 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 \u201cverify [the] same on his own oath, or the oath of some other person\u201d to verify the good faith of his claim of right to a lien. Id.\n{15} Although the requirement of verification on oath has not changed, there has been some \u201cliberal construction\u201d permitted with regard to verification. Under Lyons,\u201c[ri\\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.\u201d Lyons, 1911-NMSC-039, \u00b6 5 (emphasis added). Neither is it required that the affiant has personal knowledge of the claim\u2019s truth. Id. \u00b6 6. This is, however, the extent of \u201cliberal construction\u201d permitted a lienor\u2019s 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\u2019t, 1998-NMCA-078, \u00b6 10, 125 N.M. 244, 959 P.2d 969 (holding that this court does not consider arguments not supported by citation to authority).\nB. Home Plumbing and Garrett Affirm the Requirement of Verification\n{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, \u00b6 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 \u201can acknowledgment in the form generally provided by \u00a7 43-1-9, N.M.S.A.1953, for acknowledging instruments affecting real estate.\u201d Home Plumbing, 1962-NMSC-075, \u00b6 4. The second indicated that the person who signed it, \u201c[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.\u201d Id. \u00b6 5 (internal quotation marks and citation omitted). Because the question in the case was \u201cif the two claims here in issue are verified by oath\u201d as required by the statute, id. \u00b6 6, the court concluded that the latter claim was verified. Id. \u00b6 9. The Court stated that, owing to the absence of \u201cany words whatsoever which by intendment, plain, or otherwise, \u2018were designed to operate as a verification,\u2019 \u201d it did not \u201cfind where the statement of claim was in any manner sworn to.\u201d Id. \u00b6 10 (internal quotation marks omitted). The Court held that liberal construction did not apply:\nWhile reiterating our adherence to the rule of liberal construction, we are convinced that with a total absence of any words confirming 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.\nId. \u00b612. Garrett also recognizes that Section 48-2-6 requires \u201cthat a materialman\u2019s claim of lien must be verified by the oath of the party or some other person.\u201d 1981-NMSC-009, \u00b6 3.\n{17} Because the ultimate goal in statutory construction \u201cis to ascertain and give effect to the intent of the Legislature},]\u201d State v. Cleve, 1999-NMSC-017, \u00b6 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 discemable 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.\nC. Sonida\u2019s Concept of \u201cSubstantial Compliance\u201d Is Unavailing\n{18} According to Sonida, in Garrett, our \u201cSupreme 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.\u201d (Emphasis 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 \u201cstatutory requirements\u201d 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 \u201can otherwise valid lien\u201d 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 \u201cparties to the action,\u201d 1981-NMSC-009, \u00b6 9, its acknowledgments will carry the day. However in both Garrett and Lennox, the liens were properly verified. Lennox, 1980-NMSC-087, \u00b6\u00b6 2, 7; Garrett, 1981-NMSC-009, \u00b6 5. Both cases specifically recognized that verification was a mandatory requirement of the lien statute. Lennox, 1980-NMSC-087, \u00b6 6; Garrett, 1981-NMSC-009, \u00b6 5. Sonida\u2019s reliance on both cases fails because the liens it filed were not \u201cotherwise valid\u201d under Section 48-2-6, whatever the status of a lien\u2019s acknowledgments. Thus, Sonida\u2019s briefing misstates the law in two important respects. First, both Lennox and Garrett specifically affirmed \u201cthe statutory requirement that the lien must be verified by oath of a party.\u201d Garrett, 1981-NMSC-009, \u00b6 5. Second, in Lennox, our Supreme Court specifically recognized that an acknowledgment is \u201cinsufficient to comply with the verification requirement of Section 48-2-6.\u201d Lennox, 1980-NMSC-087, \u00b6 6. Without compliance with the verification to establish the lienor\u2019s good faith in attaching its claim to the property of another, and thereby putting the claimant\u2019s \u201cskin in the game\u201d so to speak, Sonida\u2019s acknowledgments cannot in anyway validate its claims of lien.\nD. Acknowledgments Do Not Substitute For Verification\n{19} Home Plumbing clearly establishes that the total absence of words of verification in a claim of lien renders it \u201cunenforceable.\u201d 1962-NMSC-075, \u00b6 12. \u201cIt 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.\u201d 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\u2019s validity is not affected by the lack of acknowledgment under NMSA 1978, Section 14-8-4 (2013). See \u00a7 14-8-4 (\u201cAcknowledgment necessary for recording; exceptions.\u201d); Lennox, 1980-NMSC-087, \u00b6 7 (\u201cAbsent a valid acknowledgment, an instrument may not be treated as a recorded instrument.\u201d). Our Supreme Court has stated that although the lien statute is remedial in nature and liberally construed, our appellate courts \u201cwill not apply liberal construction to create a lien where none is authorized.\u201d Vulcraft v. Midtown Bus. Park, Ltd., 1990-NMSC-095, \u00b6 12, 110 N.M. 761, 800 P.2d 195. As in Home Plumbing, we cannottake up Sonida\u2019s invitation to write out of existence even a liberally-construed verification requirement. We know from Lennox, 1980-NMSC-087, \u00b6 2, that pre-printed lien forms with sufficient verifications are available for sale. Had Sonida\u2019s attorney verified the liens, rather than only notarized their acknowledgments, the lien would have been valid. See Marsh v. Coleman, 1979-NMSC-067, \u00b6 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, \u00b6 10, 121 N.M. 758, 918 P.2d 344 (holding that a verification signed \u201cfor\u201d the client \u201cby\u201d the attorney was \u201ca nullity, being neither the oath [of the client] nor [the attorney]\u201d).\nE. Sonida\u2019s Lien Was Void Ab Initio\n{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, \u201cthe 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.\u201d White v. Diamond Int\u2019l Corp., 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 \u201cmandatory conditions precedent to the very creation and existence of the lien[,]\u201d without which \u201cno lien is created.\u201d First Sec. Mortg. Co. v. Hansen, 631 P.2d 919, 922 (Utah 1981) (internal quotation marks and citation omitted); Home Plumbing, 1962-NMSC-075, \u00b6 12 (\u201c[T]he court erred in its conclusion that the [unverified lien] . . . was enforceable.\u201d). Put another way in First Security Mortgage, \u201cVerification 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 .... [Sjince a mechanic\u2019s lien is statutory and not contractual, a lien cannot be acquired unless the claimant complies with the statutory provisions.\u201d 631 P.2d at 922. \u201cThe simple and conclusive answer to the suggestion is that a mechanic\u2019s 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.\u201d Toop v. Smith, 73 N.E. 1113, 1115 (N.Y. 1905).\n{21} Irrespective of any latitude permitted in its form, the absence of a lien claimant\u2019s verification upon oath defeats an immutable requirement under Section 48-2-6. Sonida\u2019s 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, \u201cthe Claims of Lien lack the verification,\u201d 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 \u2019ship, 2005-NMCA-079, \u00b6 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.\nSufficiency of a Lien Is Not an Affirmative Defense That Must Be Raised In the Complaint\n{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\u2019s foreclosure claim, requesting that the district court declare the \u201cClaims of Lien to be void ab initio\u201d based specifically on Home Plumbing, as well as failure to comply with Section 48-2-6, even by substantial compliance. Sonida\u2019s response to the motion conceded that \u201cas to the form of the Claims of Lien there is no disputed fact[,J\u201d yet asserted that SPO was not entitled to judgment as a matter of law for failure to plead a fatal defect in the liens as an affirmative defense. The district court denied SPO\u2019s motion.\n{23} Both the district court and Sonida seem to be laboring under a misconception. SPO\u2019s pleading that Sonida\u2019s 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\u2019s foreclosure action. Sonida\u2019s response averred that it had no obligation to \u201cspecifically 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.\u201d This is incorrect as a matter of law. \u201cA lienholder must . . . prove compliance with the Act\u2019s 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.\u201d 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, \u00b6 6, 122 N.M. 71, 920 P.2d 1025 (holding that \u201c[a] lienor who seeks to enforce a statutory lien must comply with any statutory requirement with respect to enforcement of such a lien\u201d (quoting Unger v. Checker Taxi Co., 174 N.E.2d 219, 221 (Ill. App. Ct. 1961)).\n{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\u2019s complaint alleged nothing more than it was \u201centitled to claim\u201d a lien. SPO\u2019s raising the lien\u2019s validity is not an affirmative defense if based on Sonida\u2019s failure to comply with the statute\u2019s 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).\n{25} Sonida\u2019s reliance on Beyale v. Arizona Public S ervic e Co., 1986-NMCA-071, 105 N.M. 112, 729 P.2d 1366, to defeat SPO\u2019s motion as an affirmative defense \u201cthat was not pled in their answer\u201d is of no avail. In Beyale, we clearly stated that an affirmative defense is a \u201cstate of facts provable by [a] defendant that will bar [a] plaintiffs recovery once a right to recover is established.\u201d Id. \u00b6 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\u2019s assertion that it is not obligated to 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.\n{26} Further, in Beyale, a workers\u2019 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\u2019s answer, as would an affirmative defense. 1986-NMCA-071, \u00b6 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\u2019 pleadings regarding the issue, we cannot but conclude that Sonida was aware of its obligations regarding compliance with the statute.\nCONCLUSION\n{27} Because no lien was created, no award of attorney fees can be \u201crelated to\u201d or \u201carise out of\u2019 an action based upon a nullity. For the foregoing reasons, we reverse the district court\u2019s award of attorney fees and remand for proceedings consistent with this Opinion.\n{27} IT IS SO ORDERED.\nRODERICK T. KENNEDY, Judge\nWE CONCUR:\nJAMES J. WECHSLER, Judge\nMICHAEL D. BUSTAMANTE, Judge\n\u201cEvery 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 hen 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 ofsome other person.\u201d (Emphasis added.)\nAlthough Ford is generally recognized as overruling Finane, and instituting the \u201cliberal construction,\u201d we note that the claim of lien in Ford was properly verified, and the issue of verification was not raised. 1895-NMSC-011, \u00b6 9. Ford applied solely to the description of the claim. Id. \u00b6 8.", "type": "majority", "author": "KENNEDY, Judge." } ], "attorneys": [ "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" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-026\nFiling Date: December 8, 2015\nDocket No. 32,661\nSONIDA, LLC, Plaintiff-Appellee, v. SPOVERLOOK, LLC, Defendant-Appellant.\nSommer, Karnes & Associates, LLP Karl H. Sommer James R. Hawley Santa Fe, NM for Appellee\nKeleher & McLeod, P.A. W. Spencer Reid Thomas C. Bird Justin B. Breen Albuquerque, NM for Appellant" }, "file_name": "0473-01", "first_page_order": 489, "last_page_order": 497 }