Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd.

HEDRICK, Judge.

The primary question raised by this appeal is whether the uncontroverted facts established by this record support the judgment declaring that plaintiff’s lien dates from 17 October 1973 and has priority over the defendants’ deed of trust recorded on 29 October 1973. The record clearly establishes that some labor and material was provided by plaintiff’s subcontractor on 17, 18 and 22 October 1973, prior to the recording date of defendants’ deed of trust. If, under the circumstances of this case, the services performed by plaintiff’s subcontractor on 17, 18 and 22 October 1973 are lienable pursuant to G.S. 44A-8 (prior to its amendment in 1975), the trial judge was correct in declaring that plaintiff’s lien on the subject property had priority over the defendants’ deed of trust.

Ҥ 44A-7. Definitions. . . . :

“(2) ‘Improvement’ means all or any part of any building, structure, erection, alteration, demolition, excavation, clearing, grading, filling, or landscaping, including trees and shrubbery, driveways, and private roadways, on real property.

“§ kbA-8. Mechanics’, laborers’ and materialmen’s lien: persons entitled to lien. — Any person who performs or furnishes labor or furnishes materials pursuant to a contract, either express or implied, with the owner of real property, for the making of an improvement thereon shall, upon complying with the provisions of this article, have a lien on such real property to secure payment of all debts owing for labor done or material furnished pursuant to such contract.” (Emphasis added.)

In Smith v. South Mountain Properties, Inc., 29 N.C. App. 447, 224 S.E. 2d 692, cert. denied, 290 N.C. 552 (1976), and Bryan v. Projects, Inc., 29 N.C. App. 453, 224 S.E. 2d 689, cert. denied, 290 N.C. 550 (1976), this Court analyzed these statutes and held that labor furnished by land surveyors, landscape architects, planners, consultants, and other professionals pursuant to a contract with the owner to provide such services was not lienable under G.S. 44A-8. Labor performed in providing such professional services does not fall within the statutory definition of “improvement,” G.S. 44A-7(2). Smith v. South Mountain Properties, Inc., supra; Bryan v. Projects, Inc., supra.

In the present case plaintiff was under contract to construct on Spanish Inns’ property a large motel. Obviously, the construetion of the motel falls within the statutory definition of an “improvement” to real property. It is debatable whether the labor done by plaintiff’s subcontractor on 17, 18 and 22 October 1973 was “land surveying” as described in South Mountain and Bryan, or labor improving real property within the meaning of the statutory definition of “improvements.” It is not necessary, however, that we make such a fine distinction in this or any similar case. Assuming arguendo that the labor performed by plaintiff’s subcontractor on 17, 18 and 22 October 1973 was “land surveying,” it was nevertheless labor performed pursuant to and in furtherance of plaintiff’s indivisible contract with Spanish Inns to improve the real property. Any other reading of this statute would impose an impermissible burden on the parties involved to determine whether any particular service would trigger a lien under G.S. 44A.

Defendants’ second assignment of error reads as follows:

“The appellants were not parties to the arbitration proceedings between the plaintiff and the defendant Spanish Inns Charlotte, Ltd., wherein the amount of the plaintiff’s recovery upon its construction contract was established, and the amount of the arbitration award cannot be binding upon the appellants in this action of the plaintiff to perfect its lien.”

This assignment of error purports to be based on an exception to the judgment from which the appeal is taken; yet, the assignment of error seems to challenge the amount of the arbitration award which was established in a separate proceeding. Assuming arguendo that these defendants had standing to challenge the arbitration award, the record affirmatively discloses that they waived such right by not participating in either the arbitration award hearing or the hearing in the Superior Court confirming the award when they had notice of such hearings. Moreover, no exception was noted to either the award, or the order of the Superior Court confirming the award. This assignment of error has no merit.

Defendants’ final assignment of error reads as follows:

“The plaintiff is estopped to assert a lien prior to said deed of trust because of a noncommencement affidavit executed by its surveying subcontractor.”

Equitable estoppel arises upon a misrepresentation or concealment of material facts by the party sought to be estopped calculated to induce a reasonably prudent person to act in reliance thereon and which does so induce him to act in reliance thereon. Boddie v. Bond, 154 N.C. 359, 70 S.E. 824 (1911). The affidavit referred to in this assignment of error was not given by plaintiff, the party sought to be estopped, but was given by plaintiff’s subcontractor on 12 November 1973, 14 days after the making of the construction loan and the recording of the deed of trust securing the loan. Manifestly, this assignment of error has no merit.

Affirmed.

Judge Britt concurs. Judge Martin dissents.