MAMMOET USA, INC. [Note 1] vs. ENTERGY NUCLEAR GENERATION COMPANY

LAURENCE, J. This case presents the following question under a provision of the mechanic's lien statute, G. L. c. 254, s. 4: [Note 2] Does a subcontractor's transportation and delivery of a large piece of equipment (a used transformer owned by a nuclear power plant) to the power plant site and the placement of that equipment by the subcontractor onto a concrete pad, where it was stored as spare or backup equipment for possible future use at the power plant, constitute an "improvement of real property"

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entitling the subcontractor to the statutory lien? A judge of the Superior Court concluded that it does not. We agree and affirm the judgment.

Factual background. The underlying facts are not in dispute. The defendant, Entergy Nuclear Generation Company (Entergy), a Delaware corporation, operates the Pilgrim Nuclear Power Station (power plant) in Plymouth. In December, 2000, Entergy purchased a piece of equipment known as a transformer from a company called NSTAR to serve as a spare or backup transformer in the event the transformer currently in use at the power plant should need repair or become inoperable. A transformer is a large (twelve feet wide by twenty-one feet long by twenty-two feet high) and extremely heavy (376 tons) steel box that is essential to the operation of the power plant. Its purpose, when connected to the power plant's generator, is to increase the voltage of the electricity, produced by the generator at 22.8 kilovolts, to 345 kilovolts, at which voltage the electricity is transferred to various substations, where it is again transformed and distributed to the power plant's customers. [Note 3]

In November, 2001, Entergy contracted with Ohio Transformer, Inc. (Ohio Transformer), [Note 4] to pick up the transformer Entergy had purchased almost a year earlier, which was then located at the Millstone Nuclear Power Station in Waterford, Connecticut, deliver it to the power plant, set it on an existing concrete storage pad near (but not next to or connected to) the generator, and "dress" it. ("Dressing" a transformer is a process of putting it in a state of readiness for use and involves attaching various pumps, fans, bushings, and other components to it and filling it with 17,000 gallons of mineral oil.) Entergy agreed to pay Ohio Transformer $520,463 for transporting, delivering, and dressing the transformer. [Note 5] Ohio Transformer, in turn, subcontracted with the plaintiff, Mammoet USA, Inc. (Mam-

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moet) [Note 6] later in November, 2001, to "transport transformer from Millstone Power Plant via truck and barge to Pilgrim Power Plant and set on pad," for which Ohio Transformer agreed to pay Mammoet $312,640.

Mammoet completed its performance of those services on or about December 1, 2001. Although it did not "dress" the transformer as part of its contractual obligations with Ohio Transformer, [Note 7] Mammoet "rough-set" it onto a concrete storage pad located at the power plant. This rough-setting process required a high degree of sophistication and expertise in engineered heavy lifting. [Note 8] Because the transformer was brought to the power plant for the purpose of serving as a spare transformer, it was not connected to the generator at the time of the delivery and rough-setting. [Note 9]

Entergy paid Ohio Transformer in full for the services performed by Ohio Transformer and Mammoet. Before Mainmoet was paid pursuant to its subcontract with Ohio Transformer, however, Ohio Transformer filed for bankruptcy and never paid Mammoet anything. Mammoet then commenced the instant action against Entergy seeking to enforce the mechanic's lien it had established by filings in the Plymouth County registry of deeds in February, 2002, to recover the $312,640 it was owed for the services it had performed in picking up and delivering the transformer and rough-setting it onto the storage pad at the power plant. On Entergy's motion, a judge of the Superior Court discharged Mammoet's mechanic's lien and granted Entergy summary judgment. [Note 10]

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Discussion. Mammoet claims that the judge erred in failing to recognize that it was entitled to protection under the mechanic's lien statute [Note 11] because it "furnished labor or materials in connection with the improvement to [Entergy's] real property" and "improved the value of" that property. Entergy

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counters that Mammoet merely transported a piece of Entergy's personal property from one location to another, where it is kept in storage as spare equipment. That does not, Entergy argues, satisfy the statutory requirement of being engaged in work related to an "improvement of real property," but rather constituted work no different in kind than delivering a backup computer for Entergy to keep in reserve on a shelf in a storeroom in case its functioning computer fails. Neither party benefits from any Massachusetts appellate decision construing the term "improvement" as used in the statute, which we are therefore obliged to address. [Note 12]

As always in such matters, our goal is to ascertain the Legislature's intent in using that term, and any analysis must begin with the actual language of the statute. Unfortunately, the term is undefined in the statute, and we know of no pertinent legislative history to assist us. The words of the statute nonetheless do afford helpful insight.

The familiar rule of construction known as ejusdem generis is applicable and indicates a more limited contextual meaning for a word that in isolation might appear general or broad. That doctrine provides that "[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.' "Banushi v. Dorfman, 438 Mass. 242, 244 (2002), quoting from 2A N.J. Singer, Sutherland Statutory Construction s. 47.17, at 273-274 (6th ed. rev. 2000). In other words, we "treat() a general, all-encompassing word at the end of a list of specific items as taking on the character of those specific items." Ferguson v. Host Intl., Inc., 53 Mass. App. Ct. 96, 103-104 (2001). "The doctrine is most appropriate when a series of several terms is listed that concludes with the disputed language." Banushi v. Dorfman, supra.

Here, each of the words that precedes "improvement" in G. L. c. 254, s. 4, i.e., "building" and "structure," in common

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parlance connotes something that has been constructed or assembled out of a combination of materials or parts to form a physical object purposefully created for human habitation or for use in the place where it has been assembled. [Note 13] This more limited connotation for the associated term "improvement" is reinforced by the statutory references to "construction management" and "general contractor" services as principal types of work for which a lien may be claimed. See G. L. c. 254, s.s. 2, 4. Perhaps most persuasive is the fact that such a narrowing of the scope of an "improvement," to something construction-related, fairly comes within the lien statute's underlying "spirit and intent," Perlera v. Vining Disposal Serv., Inc., 47 Mass. App. Ct. 491, 496 (1999), quoting from Kenney v. Building Commr. of Melrose, 315 Mass. 291, 295 (1943), which is "to [be] . . . a vehicle to secure payment for those furnishing labor and materials in construction." Lizza, Mechanic's Lien Law s. 3.2, at 3-2 (Mass. Cont. Legal Educ. 2001). This limitation of "improvement" to a category associated with things being constructed and to the construction industry is underscored by the use in s. 4 of the qualifier "other," which would appear to cabin the word even further and limit the breadth it might otherwise be deemed to have in the absence of that adjective. [Note 14]

Thus, the word "improvement" in context must be seen as

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denoting the product of some sort of construction-based activity on or at a property owner's land. That would not include the transportation functions Mammoet engaged in here - picking up, delivering, and setting down an already assembled unitary object (the transformer) that is never going to be used in situ - nor would it extend (as Mammoet argues) to any work or process that somehow "improve[s] the value of . . . [the owners's] property." [Note 15]

In short, the statutory context in which the phrase "improvement of real property" is placed in s. 4 strongly indicates that something is not an improvement unless it is itself, in whole or in part, constructed or assembled in connection with a building or structure or other construction-related project. Cf. Milligan v. Tibbetts Engr. Corp., 391 Mass. 364, 367-368 (1984). At the very least, the placement of the phrase in that context militates against its interpretation in the expansive sense Mammoet advocates, which would afford mechanic's lien protection to the activity of anyone who simply moves a piece of the property owner's personal property from one location to another. Compare note 16, infra, and Banushi v. Dorfman, 438 Mass. at 244-245; Santos v. Bettencourt, 40 Mass. App. Ct. 90, 92-93 (1996); and Osorno v. Simone, 56 Mass. App. Ct. 612, 615-618 (2002) (all restricting the generality of the term "building" by reference to the specific words in a series under the doctrine of ejusdem generis).

Reinforcing this contextual limitation of the reach of the concept of "improvement" is the long-standing judicial observation that "[a] mechanic's lien is a statutory creation and can be

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enforced only by strict compliance with . . . [G. L.] c. 254[, which] governs the creation, perfection, and dissolution of a mechanic's lien and `is strictly construed against the party claiming the lien.' " (citations omitted). National Lumber Co. v. United Cas. & Sur. Ins. Co., 440 Mass. 723, 726 (2004), quoting from Ng Bros. Constr. v. Cranney, 436 Mass. 638, 644 (2002). See Golden v. General Builders Supply LLC, 441 Mass. 652, 654 (2004). Ignoring the rule of strict construction, Mammoet erroneously contends that "improvement" must be read as "intrinsically broad" [Note 16] and should at least encompass anything that is so bulky as to be essentially "attached to the property" and practically "immovable." [Note 17] These assertions are untenable,

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as well as bereft of pertinent case support. [Note 18]

Another applicable (and confirmatory) interpretive guide is the principle that legislative intent may be gleaned by construing the statutory term at issue in light of "the ordinary and approved usage of the language," as reflected in recognized dictionary definitions. See Phillips v. Pembroke Real Estate, Inc., 443 Mass. 110, 114, 116-117 (2004). Webster's Third New Intl. Dictionary 1138 (2002) defines "improvement" as "a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the [real] property more useful or valuable as distinguished from ordinary repairs." That definition decidedly cuts against Mammoet's position. The transformer delivered and set in place on a concrete pad apart from the power plant's generator is, notwithstanding its size, indisputably not permanent; there is no evidence in the record that it enhanced the "capital value" of Entergy' s property; [Note 19] and its intended service as a spare part - however expensive and weighty a spare part it may be - makes it conceptually more akin to a replacement light bulb, whose contingent use would commonly be regarded as an "ordinary repair" than as something that enhances real property or capital asset value.

Cases decided under G. L. c. 260, s. 2B (a statute of repose which precludes any tort actions "arising out of any deficiency

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or neglect in the design, planning, construction or general administration of an improvement to real property" if brought over six years after the opening or substantial completion and occupation of the improvement) are instructive and appear in accord with our conclusion. They find authoritative guidance in the same dictionary definition of "improvement" noted above, see Rosario v. M.D. Knowlton Co., 54 Mass. App. Ct. 796, 800 (2002), and stress as the key factors in identifying something as an "improvement of real property" (a) its permanence and (b) its actual effect in making the facility to which it is related more valuable or substantially more useful or productive. Ibid. (installation of a hydraulic lift for material handling in a facility). See Milligan v. Tibbetts Engr. Corp., 391 Mass. at 364-366 (construction extending a road from a public way to facilities in an industrial park); Anthony's Pier Four, Inc. v. Crandall Dry Dock Engrs., Inc., 396 Mass. 818, 823 n.8 (1986) (foundation and mooring system for a ship permanently attached as the cocktail lounge of an adjacent restaurant); Conley v. Scott Prods., Inc., 401 Mass. 645, 647 (1988) (installation of insulation in a building); Parent v. Stone & Webster Engr. Corp., 408 Mass. 108, 111 (1990) (installation of permanent electrical distribution panel in an electrical generating plant); Salinsky v. Perma-Home Corp., 15 Mass. App. Ct. 193, 198-199 (1983) (installation of aluminum siding). [Note 20]

Mammoet's activity here could not be deemed an improvement under these authorities, because it neither made a permanent addition to Entergy's power plant - the transformer might be again moved to another location or sold, despite its

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large size - nor effected anything that actually rendered the facility more useful and productive, either upon delivery or, indeed, ever, since the transformer might be sold or moved before being used, or never used at all.

Mammoet has pointed to no supporting or persuasive authority for its claim of entitlement to a mechanic's lien on these facts. Compare, in particular, Colomba v. Fulchini Plumbing, 58 Mass. App. Ct. 901, 902 (2003) ("mere installation" of a "replacement boiler" was not an "improvement to real property" under G. L. c. 260, s. 2B). Its effort to liken its position to that of the materials suppliers in International Heating & Air Conditioning Corp. v. Rich Constr. Co. 372 Mass. 134 (1977), and M. Lasden, Inc. v. Decker Elec. Corp., 372 Mass. 179 (1977), is misplaced and unconvincing. Mammoet is not a materials supplier, and neither of those cases dealt in any way with the instant issue (the meaning and scope of the words "improvement of real property"). Both in fact involved a surety bond statute, G. L. c. 149, s. 29, that - unlike the mechanic's lien statute - is accepted as remedial and given a broad and liberal construction. See International Heating & Air Conditioning Corp., supra at 138; M. Lasden, Inc., supra at 182-183. [Note 21]

Mammoet's reliance on a dozen cases dealing with mechanic's lien statutes in several other jurisdictions is also unavailing. Every one of those cases involved lien claimants who actually delivered building materials or equipment to a construction site - i.e., delivered property the suppliers were not merely providing but selling - that was intended to be used in the ongoing construction but was never actually so used. In addition to the distinction between the factual circumstances of those cases and this, Mammoet never establishes the identity, or even the

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similarity, of the mechanic's lien statutes in those other jurisdictions. [Note 22], [Note 23]

Mammoet's final contentions are that (a) it "furnished" "tools" or "materials," in the form of its own equipment used to move and rough-set the transformer, and (b) what it did amounted to the "alteration" of an "improvement of real property." These arguments are, however, merely conclusory and unsupported by coherent reasoning, contrary to Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). They are,

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therefore, unworthy of extended discussion. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995), and cases cited. We note that "material" under the statute is traditionally held to refer to building materials sold by materialmen or suppliers with the understanding or expectation they would be incorporated or used in a construction project, cf. note 19, supra, and International Heating & Air Conditioning Corp. v. Rich Constr. Co., 372 Mass. at 136-137; M. Lasden, Inc. v. Decker Elec. Corp., 372 Mass. at 182-184; while "tools" are typically manual devices ordinarily used by workmen and mechanics, Devney's Case, 223 Mass. 270, 272 (1916), such "as a hammer or saw." Webster's Third New Intl. Dictionary 2408.

Mammoet's contention begs the question in any event, since the lien depends upon the furnished objects being related to an "improvement of real property." The "improvement" to which Mammoet directs these assertions is, however, nothing more than the preexisting concrete storage pad at Entergy's facility. Mammoet makes no factual or legal argument demonstrating that that pad is or ever was an "improvement" under the statute, there being nothing in the record indicating when or by whom the pad was created or whether it was either permanent or an enhancement of the capital value of the property. Moreover, the work that Mammoet did - piling something on top of the pad - was not an "alteration" as that term is commonly used. [Note 24]

Although we conclude that Mammoet is not entitled to the protection of the mechanic's lien statute, we are not unmindful

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of the difficulty and expertise involved in the work it performed and that such work was indeed of value to Entergy. Nonetheless, the factual realities are that Entergy has already paid in full for that work and was in no way responsible for Mammoet's being deprived of its rightful payment as a result of the bankruptcy of others; and the legal realities are that the mechanic's lien statute remains subject to strict construction - "[t]here are no equities to be invoked in aid of it." International Heating & Air Conditioning Corp. v. Rich Constr. Co., 372 Mass. at 138, quoting from Gale v. Blaikie, 129 Mass. 206, 209 (1880). If a transporter or a deliverer of a piece of equipment or other chattel not intended to be utilized in or as part of a construction project is to receive the statute's protection, it is up to the Legislature to make it so. Cf. National Lumber Co. v. United Cas. & Sur. Ins. Co., 440 Mass. at 727-728.

Judgment affirmed.