Piedmont Rebar, Inc. v. Sun Construction, Inc.

TYSON, Judge,

concurring in the result.

I concur in the result of the majority’s opinion. N.C.G.S. § 44A-23 provides first, second, and third tier subcontractors a right of subrogation to the lien of the contractor who dealt with the owner, regardless of any lien upon the funds. Electric Supply Co. of Durham, Inc. v. Swain Elec. Co., Inc., 328 N.C. 651, 654, 403 S.E.2d 291, 293 (1991).

Plaintiff was a first tier subcontractor. Article 2, Part 2 of Chapter 44A of the General Statutes provides for perfection of liens by subcontractors. A lien in favor of a subcontractor may arise either: (1) directly under N.C.G.S. § 44A-18 and N.C.G.S. § 44A-20; or (2) by sub-rogation under N.C.G.S. § 44A-23. Mace v. Bryant Constr. Corp., 48 N.C. App. 297, 304, 269 S.E.2d 191, 195 (1980).

N.C.G.S. § 44A-23 provides that:

a first, second, or third tier subcontractor, who gives notice as provided in this Article, may, to the extent of his claim, enforce the lien of the contractor created by Part 1 of Article 2 of this Chapter. The manner of such enforcement shall be as provided by G.S. 44A-7 through 44A-16. The lien is perfected as of the time set forth in G.S. 44A-10 upon filing of claim of lien pursuant to G.S. 44A-12. Upon the filing of the notice and claim of lien and the commencement of the action, no action of the contractor shall be effective to prejudice the rights of the subcontractor without his written consent.

N.C. Gen. Stat. § 44A-23(a), (b) (2001) (Emphasis supplied). Under this provision, a claim of lien against real property is perfected, or enforceable, upon the filing and service of both a notice of claim of lien pursuant to N.C.G.S. § 44A-19 and a claim of lien pursuant to N.C.G.S. § 44A-12. Universal Mechanical, Inc. v. Hunt, 114 N.C. App. 484, 486, 442 S.E.2d 130, 131-32 (1994).

Entry of default against a defendant results in all allegations of plaintiffs complaint being deemed admitted against that defendant, and thereafter, defendant is prohibited from defending on the merits of the case. Spartan Leasing, Inc. v. Pollard, 101 N.C. App. 450, 460, 400 S.E.2d 476, 482 (1991). While defendant East Coast may have had a meritorious defense had it answered the complaint, because of its failure to appear or file an appeal from the default judgment, defendant East Coast is bound by the judgment validly entered. Waters v. Qualified Personnel, Inc., 32 N.C. App. 548, 233 S.E.2d 76 (1977).