Blalock Electric Co. v. Grassy Creek Development Corp.

PARKER, Judge. Defendant brings forward seven assignments of error on appeal. First, defendant contends that the court erred in finding that from May to August 1987 plaintiffs employees did additional trim work in Condominium No. Two because there was insufficient evidence to support such a finding. Second, defendant asserts that the court erred in finding that three of plaintiff’s employees and an employee of Mountain Heritage installed the exhaust fan and intercom/security system at Condominium No. Two on 3 February 1988. Third, defendant contends that the court erred in finding that the labor and materials supplied by plaintiff on 3 February 1988 were not trivial in nature and were performed in furtherance of the original contractual obligation. Fourth, defendant argues that the trial court’s findings of fact did not support its conclusion that plaintiff timely filed its claim of lien against defendant1 in accordance with G.S. 44A-12. Fifth, defendant asserts that the court’s findings did not support its conclusion that the labor and materials furnished by plaintiff on 3 February 1988 were not trivial and were furnished in furtherance of the original contractual obligation. Next, defendant contends that the court’s findings did not support [445] its conclusion that the property should be sold in accordance with the provisions of G.S. 44A-14. Finally, defendant argues that the court erred in ordering that the judgment should be a lien on the property as of 19 July 1985 because there were insufficient findings of fact and conclusions of law to support such order. We find no merit in defendant’s arguments; therefore, we affirm. Defendant’s first three assignments of error are directed to specific facts found by the trial court. Defendant contends that the evidence presented at the trial does not support these findings. Where the trial court sits without a jury, the judge is required to “find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.” G.S. 1A-1, Rule 52(a)(1). The findings of fact are binding if supported by competent evidence, even if there is evidence to the contrary. In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984). Our review of the trial transcript reveals competent evidence supporting these findings. With regard to the additional trim work performed by plaintiff’s employees in Condominium No. Two, Blalock testified on cross-examination that after working on the unit for which there was a potential sale in May or June 1987 there were several occasions where they came to the condominium to “see if the other units were ready to finish trimming out and where they had been painted or whatever, we would go ahead and put covers on or hang fixtures in that order.” This testimony shows that work was done on the second building after May 1987. In any event, this finding does not affect the court’s conclusion that 3 February 1988 was the date of the last furnishing of services under the contract for the purpose of determining whether plaintiff’s lien was timely filed; therefore, any error with regard to this finding would not affect the court’s judgment where other findings supported by competent evidence would be sufficient to support the judgment. Wachovia Bank v. Bounous, 53 N.C. App. 700, 281 S.E.2d 712 (1981). As to the finding that plaintiff’s employees and an employee of Mountain Heritage installed the intercom and elevator room exhaust fan on 3 February 1988, all four employees testified that they had performed the work on that date and two of the employees submitted time sheets verifying this fact. Finally, the employees’ testimony shows that the installation of the intercom and the exhaust fan were major undertakings requiring the four employees [446] to work five and one-half hours and, in the case of the exhaust fan, requiring cutting through a block wall. As to the finding that this work was performed in furtherance of the contractual obligation, E. L. Bryant admitted that the exhaust fan was specifically required by the blueprints and also admitted that he had requested the installation of the intercom system for both buildings. Therefore, we find no merit in defendant’s assertions. By its fourth, fifth, and sixth assignments of error defendant challenges the court’s conclusions that plaintiff’s lien was timely filed, that the work performed on 3 February was in furtherance of the contractual obligation, and that the property to which the materialman’s lien attached should be sold. The trial court found as fact that plaintiff had filed its lien 118 days after the last furnishing of materials and labor to the real property and had filed the action to enforce its lien 175 days after the last furnishing. Defendant has not challenged these findings in its assignments of error and, therefore, they are binding on appeal. See Industries, Inc. v. Construction Co., 29 N.C. App. 270, 275, 224 S.E.2d 266, 269, disc. rev. denied, 290 N.C. 551, 226 S.E.2d 509 (1976). In order to be timely, a materialman’s lien must be filed no later than “120 days after the last furnishing of labor or materials at the site of the improvement by the person claiming the lien.” G.S. 44A-12(b). An action to enforce the lien must be brought no later than 180 days after the last furnishing of labor or materials. G.S. 44A-13(a). Based on these findings, therefore, the trial court’s conclusion was correct. Defendant also argues that the court’s conclusion that the work done on 3 February 1988 was in furtherance of the original contract conflicts with our Supreme Court’s decision in Priddy v. Lumber Co., 258 N.C. 653, 129 S.E.2d 256 (1963). We disagree. Priddy was an action between the holder of a deed of trust and a lienor-judgment creditor to determine the priority of their liens. In that action the plaintiff, the holder of the deed of trust, alleged that the construction was completed on 2 November 1959 and that any subsequent supplying of materials by defendant, the Lumber Company, was a fraudulent effort to defeat plaintiff’s liens. Priddy, 258 N.C. at 655, 129 S.E.2d at 259. In Priddy, the uncontradicted facts showed that on 14 May 1959 the party building the house entered into a contract with defendant to supply all the materials required for construction. Defendant supplied materials regularly until 2 November 1959. On 2 May 1960 defendant delivered storm [447] doors costing $71.00. The builder executed a deed of trust 19 October 1960 to secure a loan from plaintiff. On 24 October 1960 defendant delivered one set of medicine cabinet shelves worth fifty cents, which shelves were part of a medicine cabinet delivered on 2 November 1959 and which should have come with the cabinet. On 24 April 1961 defendant’s president informed the builder that unless he purchased something else defendant would have to place a lien on his property. The builder purchased a gallon of paint on that date. On 15 June 1961, the builder executed a second deed of trust to secure an additional loan from plaintiff. On 25 September 1961, defendant filed his lien against the property. Subsequently, judgment was rendered in favor of defendant’s lien and the property was sold to satisfy the judgment. On these facts the court enunciated the following criteria for determining when the materials were last furnished for purposes of filing a materialman’s lien: (i) the work performed and materials furnished must be required by the contract (ii) in order that the date of the last item be taken as that from which limitation for filing notice of lien shall run, it is essential that the work or materials at different times be furnished under one continuous contract (iii) whatever is done must be done in good faith for the purpose of fully performing the obligations of the contract, and not for the mere purpose of extending the time for filing lien proceedings and, finally (iv) where the time allowed for filing has begun to run, the claimant cannot thereafter extend the time within which the lien may be filed by doing or furnishing small additional items for that purpose. Id. at 657, 129 S.E.2d at 260. In the present case the trial court found, and the evidence supports, that the exhaust fan and intercom system were in furtherance of the original contract and, hence, that they were required by the contract and the contract could not be considered completed until such items were provided. Moreover, unlike Priddy, in the present case there is no indication that the work done on 3 February 1988 was done for the purpose of extending the time for filing the lien. In our opinion, the findings of the trial court [448] meet the criteria of Priddy and support the conclusion that the work was done in furtherance of the original contract. When the action to enforce the lien is filed within 180 days after the last furnishing of services, G.S. 44A-13 provides that the judgment enforcing the lien shall direct that the property subject to the lien be sold to satisfy the amount due. G.S. 44A-13(b). Therefore, this conclusion was proper. Finally, defendant assigns error to the court ordering that the judgment should attach as a lien on the property and the property should be sold to satisfy the judgment. As discussed above, a judicial sale is the statutorily prescribed procedure whereby the lien creditor can collect the judgment. For the foregoing reasons, the judgment of the trial court is affirmed. Affirmed. Judges EAGLES and Orr concur.