Jordan Construction, Inc. v Federal National Mortgage Association

Jordan appealed the district court orders quashing a sheriff’s sale, denying preclusive effect to the mechanic’s lien litigation against the mortgagor of the property in question, declaring an amended notice of lien untimely, denying prejudgment interest and awarding prevailing party attorney fees to Association. The Court affirmed. It affirmed the quashing as the writ of execution here was issued prior to final judgment and the district court thus had discretion to quash as the writ was issued in error. It upheld the denial of preclusion as the lis pendis filed here only binds successors in interest once final judgment is entered and claims were still open in the litigation between Jordan and the mortgagor and res judicata did not apply as Association entered into the litigation before final judgment was entered in the claims involving Jordan and the mortgagor. It affirmed on the timeliness order holding Jordan’s attempt to withdraw its admission that the property in question had a certificate of occupancy issued in 2007 as this would prejudice Association as it would need to try and depose witness about a later certificate years after the events with no likelihood of finding such a witness and the fact that Jordan failed to act on its knowledge of the later certificate for over two years; that Jordan failed to present its equitable tolling argument below and thus failed to preserve it; and the mechanic’s lien statute does not provide for relating back of amendments to initial notices. It affirmed on prejudgment interest holding that the applicable 2008 version of the statute was silent on the matter, the legislature added items of recovery in excess of the face amount demonstrating the legislature could have added prejudgment interest but did not and out of statute authority relied upon in previous court precedent on the statute reject claims for prejudgment interest. It finally affirmed the attorney fee award holding that under the facts of the case where Association won on its claim that the amended notice was untimely and thus reduced the amount recovered by over 60%, won on the preclusion issue and on prejudgment interest common sense support the conclusion it was the “successful party’ in this litigation and awarded Association fees for the appeal.