The Kitchen Planners v. Friedman

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The Kitchen Planners, LLC, Appellant,
v.
Samuel E. Friedman and Jane Breyer Friedman and
Branch Banking and Trust, Respondents.
Appellate Case No. 2017-001522
Appeal From Richland County
Robert E. Hood, Circuit Court Judge
Opinion No. 5738
Heard December 10, 2019 – Filed July 1, 2020
AFFIRMED
Jean Perrin Derrick, of Jean Perrin Derrick, LLC, of
Lexington, for Appellant.
Charles A. Krawczyk, of Finkel Law Firm, LLC, of
Columbia, for Respondents.
LOCKEMY, C.J.: The Kitchen Planners, LLC (Kitchen Planners) appeals the
circuit court's order granting summary judgment in favor of Samuel E. and Jane
Breyer Friedman (collectively, the Friedmans) as to Kitchen Planners' action for a
mechanic's lien and foreclosure. Kitchen Planners argues the circuit court erred by
(1) finding there was no genuine issue of material fact as to its claim for a
mechanic's lien, (2) denying its motion to strike Mr. Friedman's affidavit, and (3)
awarding attorney's fees to the Friedmans. We affirm.
FACTS
In 2015, the Friedmans and Kitchen Planners entered into a contract, pursuant to
which Kitchen Planners was to provide and install kitchen cabinets in the
Friedmans' home in exchange for $49,784.04, plus $2,995 for delivery and
installation. The parties agreed the Friedmans would pay the contract price in
three installments consisting of one-third at the time of ordering, one-third at the
time of shipment, and the final third at the time of delivery. The Friedmans paid
two-thirds of the contract price prior to delivery of the cabinets. However, when
the cabinets arrived at their home on May 21, 2015, they were dissatisfied with the
product and never paid the final one-third of the contract price.
Kitchen Planners filed a mechanic's lien and statement of account on November
12, 2015, pursuant to sections 29-5-10 to -440 of the South Carolina Code (2007 &
Supp. 2019). It served the Friedmans on November 17, 2015, and filed its
complaint and a lis pendens on January 13, 2015. Kitchen Planners alleged in its
complaint that it "furnished materials, supplies, and labor beginning in or around
March 16, 2015 and continuing through August 18, 2015." In their answer, the
Friedmans asserted several defenses, including failure to properly file a mechanic's
lien and violation of section 29-5-100. The Friedmans also asserted counterclaims
against Kitchen Planners, including breach of contract, negligent supervision, and
negligent misrepresentation. They alleged Kitchen Planners' measurements were
incorrect and the cabinets had remained in their garage and were never installed in
their home.
Subsequently, on January 19, 2017, the Friedmans filed a motion titled "motion to
dismiss mechanic's lien and foreclosure," requesting "dismissal pursuant to
[sections] 29-5-10[ and] 29-5-100 and South Carolina Rule[] of Civil Procedure
56(a) [sic]." They sought dismissal of the lien and of Kitchen Planners' causes of
action with prejudice, arguing the lien was invalid and "there [wa]s no issue of fact
to support" Kitchen Planners' claims.
The Friedmans deposed Patricia Comose, the sole member of Kitchen Planners, on
April 7, 2017. Comose testified she held a degree in interior design and a retail
license that allowed her to purchase items at wholesale and sell them for retail
value. She explained the Friedmans contacted her because they wished to purchase
cabinets manufactured by Crystal Cabinets and she was the only dealer for Crystal
Cabinets in the Columbia area. Comose stated the Friedmans had incurred water
damage in their kitchen and "wanted the kitchen designed" to enable them to
replace the cabinets. She recalled some of the elements of the design were the
same as the existing designs. Comose stated she visited the Friedmans' home on
January 23, 2015, and they signed a "design retainer agreement" and paid a $500
retainer for the planning of the kitchen. The agreement provided that if the
Friedmans decided to purchase the cabinets through Kitchen Planners, the $500 fee
would be deducted from the purchase price. She stated they discussed the design
several times between January 23 and March 16, 2015, and on March 16, Kitchen
Planners and the Friedmans entered an agreement "for the ordering of the
cabinets." Comose stated she purchased the cabinets for $28,953.58 and her profit
margin was thirty-three percent. She acknowledged that prior to delivery of the
cabinets, Kitchen Planners had already realized a profit of $4,175 and made
additional profit from other items, such as the sink and the cabinet pulls. Comose
explained that rather than charging by the hour, she earned profits by purchasing
items at wholesale and selling them at retail and did not charge for her time
"basically at all."
Comose confirmed that when the cabinets were delivered to the Friedmans' home
on May 20, 2015, they had some concerns with the product. Comose stated that
when the installer arrived the next day to install the cabinets, Mr. Friedman told
her he wanted the cabinets removed from the home and a refund. She recalled she
and the installer spent several hours at the home that day, unboxing the cabinets
and setting them in place so the Friedmans could see how they would look.
Comose stated she offered to reorder any portions of the cabinets they were
dissatisfied with. She testified she spent the next two or three days preparing a list
of items to reorder. Comose stated that when she began reordering items, the
Friedmans removed her from the project. She explained the Friedmans contacted
Crystal Cabinets directly and Derrick Tackett, a sales representative, took over the
reorder process. Comose stated the Friedmans arranged with Tackett to pay dealer
cost for the reorder. Comose stated she did not "have anything more to do with the
project" after June 18 when Tackett informed her the Friedmans did not want her
to be involved. Comose agreed that on August 18, 2015, she received an email
from Tackett informing her the Friedmans had taken him off the job as well.
Comose admitted, "I understand that we were not allowed to install [the cabinets]."
When asked about a check for $550.61 paid on September 29, 2015, for "a re-order
of boxes" for the kitchen island, she explained she reordered drawer boxes after
Mrs. Friedman complained the boxes they received "could have been deeper."
However, Comose did not know why she wrote this check in September as
opposed to an earlier date, and she commented, "And I have those, by the way."
On April 13, 2017, the Friedmans served a copy of Mr. Friedman's affidavit upon
Kitchen Planners by mail. The Friedmans then filed a memorandum titled
"memorandum in support of defendant's motion for summary judgment" on April
20, 2017. On April 24, 2017, Kitchen Planners filed a motion to strike the
affidavit, arguing it was improper because (1) the Friedmans filed a motion to
dismiss and motions to dismiss must be determined by the pleadings only and (2)
the affidavit should have been served concurrently with the Friedmans' motion
pursuant to Rule 6, SCRCP. It also served and filed Comose's affidavit in
opposition, in which she stated she continued to work with Tackett "through
November 2015." Comose stated, "For example, on September 29, 2015, I
reordered drawer boxes for the island in the kitchen, and paid $550.61."
Additionally, she attested another contractor, Viggiano Remodeling, finished the
project and "utilized some of the cabinets [she] furnished." In support of this, she
attached the contractor's estimate, which stated, "All useable hardware and drawers
from the existing Crystal cabinets will be reflected as a credit in final price."
The circuit court heard the Friedmans' motion on April 25, 2017. At the outset of
the hearing, Kitchen Planners moved to strike Mr. Friedman's affidavit, relying on
its written motion to strike and arguing the document was outside of the pleadings
and untimely. The Friedmans argued they timely served the affidavit and their
motion was a Rule 56, SCRCP, motion for summary judgment rather than a Rule
12(b)(6), SCRCP, motion to dismiss. The court denied the motion to strike, noting
Kitchen Planners had sufficient time to review and submit a response to the
affidavit. The court then proceeded with the hearing as a hearing on a motion for
summary judgment, and Kitchen Planners did not object.
The circuit court granted the Friedmans' motion, finding there was no question of
material fact that Kitchen Planners failed to timely file and serve the lien according
to section 29-5-90. See § 29-5-90 (providing that "within ninety days after he
ceases to labor on or furnish labor or materials for such building," a person seeking
to enforce a mechanic's lien must "serve[] upon the owner . . . a statement of a just
and true account of the amount due him"). It reasoned the face of the lien stated
Kitchen Planners furnished materials and labor from "on or about March 11, 2015
through on or about August 18, 2015," and it served the lien on November 17,
2015—which was a difference of ninety-one days. The court noted "no credible
evidence exist[ed] to show [Kitchen Planners] provided any materials or labor"
after August 18. Additionally, it concluded the materials furnished were not
actually used in the erection, alteration, or repair of a building and that Kitchen
Planners knowingly claimed more than it was due in violation of section 29-5-100
and failed to commence the foreclosure action within six months. Kitchen
Planners filed a motion to reconsider pursuant to Rule 59(e), SCRCP, which the
circuit court denied. This appeal followed.
ISSUES ON APPEAL
1. Did the circuit court err by granting the Friedmans' motion for summary
judgment?
2. Did the circuit court err by denying Kitchen Planners' motion to strike?
3. Did the circuit court err by awarding attorney's fees to the Friedmans?
STANDARD OF REVIEW
"When reviewing an order granting summary judgment, the appellate court applies
the same standard as the trial court." David v. McLeod Reg'l Med. Ctr., 367 S.C.
242, 247, 626 S.E.2d 1, 3 (2006). "On appeal from an order granting summary
judgment, the appellate court will review all ambiguities, conclusions, and
inferences arising in and from the evidence in a light most favorable to the
non-moving party below." Hurst v. E. Coast Hockey League, Inc., 371 S.C. 33, 36,
637 S.E.2d 560, 561-62 (2006). "Summary judgment is appropriate when 'the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.'"
Hansson v. Scalise Builders of S.C., 374 S.C. 352, 354-55, 650 S.E.2d 68, 70
(2007) (quoting Rule 56(c), SCRCP). "[I]n cases applying the preponderance of
the evidence burden of proof, the non-moving party is only required to submit a
mere scintilla of evidence in order to withstand a motion for summary judgment."
Hancock v. Mid-S. Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009). "A
court considering summary judgment neither makes factual determinations nor
considers the merits of competing testimony; however, summary judgment is
completely appropriate when a properly supported motion sets forth facts that
remain undisputed or are contested in a deficient manner." Gecy v. S.C. Bank &
Tr., 422 S.C. 509, 516, 812 S.E.2d 750, 754 (Ct. App. 2018) (quoting M&M Grp.,
Inc. v. Holmes, 379 S.C. 468, 473, 666 S.E.2d 262, 264 (Ct. App. 2008)).
"When evidence is susceptible to more than one reasonable inference, the issue
should be submitted to the jury." Murphy v. Tyndall, 384 S.C. 50, 54, 681 S.E.2d
28, 30 (Ct. App. 2009).
LAW/ANALYSIS
I. Summary Judgment
Kitchen Planners argues the circuit court erred by granting summary judgment in
favor of the Friedmans. We disagree.
A. Mechanic's Lien
"A mechanic's lien is purely statutory. Therefore, the requirements of the statute
must be strictly followed." Butler Contracting, Inc. v. Court St., LLC, 369 S.C.
121, 130, 631 S.E.2d 252, 257 (2006); see also Shelley Constr. Co. v. Sea Garden
Homes, Inc., 287 S.C. 24, 27, 336 S.E.2d 488, 490 (Ct. App. 1985) ("[M]echanic's
liens are purely statutory and can only be acquired and enforced in accordance with
the conditions of the statute creating them.").
Sections 29-5-10 to -440 of the South Carolina Code (2007 & Supp. 2019) set forth
the requirements for establishing and enforcing a mechanic's lien. "The statutory
process encompasses several steps, including the (1) creation, (2) perfection, and
(3) enforcement of the lien." Ferguson Fire & Fabrication, Inc. v. Preferred Fire
Prot., L.L.C., 409 S.C. 331, 340, 762 S.E.2d 561, 565 (2014). "For . . . [the] lien to
become valid, the lien must be perfected and enforced in compliance with South
Carolina's mechanic's lien statutes." Id. at 342, 762 S.E.2d at 566. Section
29-5-10(a) provides,
A person to whom a debt is due for labor performed or
furnished or for materials furnished and actually used in
the erection, alteration, or repair of a building . . . by
virtue of an agreement with, or by consent of, the owner
of the building . . . shall have a lien upon the building or
structure and upon the interest of the owner of the
building . . . to secure the payment of the debt due to
him. . . . As used in this section, labor performed or
furnished in the erection, alteration, or repair of any
building or structure upon any real estate includes the
preparation of plans, specifications, and design
drawings . . . . As used in this section, materials
furnished and actually used include tools, appliances,
machinery, or equipment supplied for use on the building
or structure to the extent of their reasonable rental value
during their actual use. . . . For purposes of this section,
the term "materials" includes flooring, floor coverings,
and wall coverings.
"[W]hen the labor is performed or material is furnished, the right exists but the lien
has not been perfected." Ferguson Fire, 409 S.C. at 341, 762 S.E.2d at 566
(quoting Butler Contracting, 369 S.C. at 128, 631 S.E.2d at 256)). "Any material
supplied for improving real estate by the erection of a building or structure
ordinarily gives rise to a mechanics' lien. Materials must, of course, be
incorporated into the structure or become fixtures." 22 S.C. Jur. Mechanics' Liens
§ 14 (2020) (footnotes omitted).
Section 29-5-90 provides that "within ninety days after he ceases to labor on or
furnish labor or materials for such building," a person seeking to enforce a
mechanics lien must "serve[] upon the owner . . . a statement of a just and true
account of the amount due him." Otherwise, the "lien shall be dissolved." Id.; see
also Butler Contracting, 369 S.C. at 131, 631 S.E.2d at 257 ("The deadline to
serve . . . a mechanic's lien begins running from the date the last material was
furnished . . . ."). The court in Butler explained,
[W]he[n] a claimant, after a contract is substantially
completed, . . . furnishes additional material [that] is
necessary for the proper performance of his contract, and
which is done in good faith at the request of the owner or
for the purpose of fully completing the contract, and not
merely as a gratuity or act of friendly accommodation,
the period for filing the lien will run from
the . . . furnishing of such materials, irrespective of the
value thereof.
Butler Contracting, 369 S.C. at 130-31, 631 S.E.2d at 257 (first alteration in
original) (quoting Wood v. Hardy, 235 S.C. 131, 140, 110 S.E.2d 157, 161 (1959)).
Thus, as we stated in Shelley Construction,
[T]o perfect and enforce the lien against the property, the
person claiming it must: (1) serve and record a certificate
of lien within ninety days after he ceases to furnish labor
or materials . . . ; (2) bring suit to foreclose the lien
within six months after he ceases to furnish labor or
materials . . . ; and (3) file notice of pendency of the
action within six months after he ceases to furnish labor
or materials . . . .
287 S.C. at 27, 336 S.E.2d at 490 (emphases added). If the person claiming the
lien "fails to take any one of these steps, the lien against the property is dissolved."
Id.1
Section 29-5-100 provides "[n]o inaccuracy in [the] statement relating to the
property to be covered by the lien, if the property can be reasonably recognized, or
in stating the amount due for labor or materials shall invalidate the proceedings,
unless it appear that the person filing the certificate has wil[l]fully and knowingly
claimed more than is his due." See also Zepsa Constr. Inc. v. Randazzo, 357 S.C.
32, 38, 591 S.E.2d 29, 31-32 (Ct. App. 2004) (holding overhead and profit are
recoverable under the mechanic's lien statute only "in the limited situation where
the terms of overhead and profit are agreed upon by the parties and are
subsequently embodied within a contract").
"Minor imperfections and mistakes in the complaint or petition to foreclose a lien
do not affect its validity." 22 S.C. Jur. Mechanics' Liens § 19 (2020). "The court
may at any time allow either party to amend his pleadings as in other civil actions."
§ 29-5-180; see also 22 S.C. Jur. Mechanics' Liens § 19 ("Allegations in a
complaint to foreclose a mechanics' lien may be amended."). However, "[i]t is
well settled that parties are judicially bound by their pleadings unless withdrawn,
altered or stricken by amendment or otherwise." Postal v. Mann, 308 S.C. 385,
387, 418 S.E.2d 322, 323 (Ct. App. 1992)); see also Johnson v. Alexander, 413
S.C. 196, 202, 775 S.E.2d 697, 700 (2015) ("Parties are generally bound by their
pleadings and are precluded from advancing arguments or submitting evidence
contrary to those assertions."); Postal, 308 S.C. at 387, 418 S.E.2d at 323 ("The
allegations, statements, or admissions contained in a pleading are conclusive as
against the pleader and a party cannot subsequently take a position contradictory
of, or inconsistent with, his pleadings and the facts which are admitted by the
pleadings are taken as true against the pleader for the purpose of the action.").
1
We also noted dissolution of the lien would not preclude a claimant from
maintaining an action on the debt. See id.; § 29-5-420 ("Nothing in this chapter
shall be construed to prevent a creditor in such contract from maintaining an action
thereon in like manner as if he had no such lien for the security of his debt.").
1. Timeliness
Kitchen Planners contends it timely served and filed its mechanic's lien pursuant to
section 29-5-90, an amendment pursuant to section 29-5-180 could easily cure the
"slight discrepancy" between the date alleged in the lien and the actual date of the
last work, and any inaccuracy in the statement of account would not invalidate the
proceedings pursuant to section 29-5-100. Kitchen Planners argues that although
its lien stated it last furnished materials or labor "on or about August 18, 2015,"
evidence showed its work did not conclude until September 29, 2015, when it
reordered drawer boxes and issued a check to Crystal Cabinets for $550.61. It
argues it served and filed its lien within ninety days of September 29, 2015.
Kitchen Planners asserts that it also timely commenced the suit for foreclosure on
January 13, 2016, which was less than six months after the last work it performed.
We disagree.
First, we find Kitchen Planners is bound by the dates asserted in its pleadings and
on the face of the lien. A claimant seeking to enforce a mechanic's lien must
strictly follow the requirements of the statute. See Butler Contracting, 369 S.C. at
130, 631 S.E.2d at 257. To perfect a mechanic's lien, a claimant must "serve and
record a certificate of lien within ninety days after he ceases to furnish labor or
materials." Shelley Constr. Co., 287 S.C. at 27, 336 S.E.2d at 490 (emphases
added); see also § 29-5-90. Here, on the face of the lien, Kitchen Planners asserted
its lien was for materials and labor furnished "beginning on or about March 11,
2015 through on or about August 18, 2015." In its complaint, Kitchen Planners
asserted its lien was for labor and materials furnished beginning "in or around
March 16, 2015 and continuing through August 18, 2015." Thus, we find Kitchen
Planners is bound by the dates asserted in its pleadings and on the face of the lien.
See Johnson, 413 S.C. at 202, 775 S.E.2d at 700; see also Postal, 308 S.C. at 387,
418 S.E.2d at 323. Although Kitchen Planners argues it was entitled to amend its
complaint to change the date it last provided materials, it never requested leave of
the circuit court to amend its pleadings; rather, it raises this argument for the first
time on appeal. Thus, we find this argument is unpreserved. See Herron v.
Century BMW, 395 S.C. 461, 465, 719 S.E.2d 640, 642 (2011) ("At a minimum,
issue preservation requires that an issue be raised to and ruled upon by the trial
judge. It is 'axiomatic that an issue cannot be raised for the first time on appeal.'"
(citation omitted) (quoting Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731,
733 (1998))).
Second, we find the evidence was not sufficient to contest the Friedmans' assertion
that August 18, 2015, was the last date labor or materials were furnished. Neither
Comose's testimony nor her statement in her affidavit that she paid for a reorder of
drawer boxes on September 29, 2015, created a genuine issue of material fact as to
when Kitchen Planners last furnished materials. See Gecy, 422 S.C. at 516, 812
S.E.2d at 754 ("[S]ummary judgment is completely appropriate when a properly
supported motion sets forth facts that remain undisputed or are contested in a
deficient manner." (quoting M&M Grp., 379 S.C. at 473, 666 S.E.2d at 264)).
Here, Comose testified she provided no materials to the Friedmans after June 18,
2015, and did not know why she did not pay for the drawer boxes until September
29. Although she explained she reordered the drawer boxes because Mrs.
Friedman pointed out they could have been deeper, she never stated the Friedmans
specifically requested or directed her to reorder them. Comose offered no
testimony or other evidence to show these drawer boxes were ever delivered to the
Friedmans, and when she testified about this reorder, she stated, "And I have those,
by the way." Viewing the evidence in the light most favorable to Kitchen
Planners, we find the only inference to be gleaned from this testimony is that these
additional items were never delivered to the Friedmans or installed in their home.
See § 29-5-10 (providing materials must be "furnished and actually used in the
erection, alteration, or repair of a building" to give rise to a lien (emphasis added));
22 S.C. Jur. Mechanics' Liens § 14 (noting the materials furnished must ordinarily
"be incorporated into the structure or become fixtures"); Shelley Constr. Co., 287
S.C. at 27, 336 S.E.2d at 490 ("[T]o perfect and enforce the lien against the
property, the person claiming it must . . . serve and record a certificate of lien
within ninety days after he ceases to furnish labor or materials . . . ."); Butler
Contracting, 369 S.C. at 130-31, 631 S.E.2d at 257 ("[W]he[n] a claimant, after a
contract is substantially completed, . . . furnishes additional material [that] is
necessary for the proper performance of his contract, and which is done in good
faith at the request of the owner or for the purpose of fully completing the contract,
and not merely as a gratuity or act of friendly accommodation, the period for filing
the lien will run from the . . . furnishing of such materials, irrespective of the value
thereof." (first alteration in original) (quoting Wood, 235 S.C. at 140, 110 S.E.2d at
161)). Accordingly, we find the evidence and the pleadings show there was no
genuine issue of material fact as to the date—August 18, 2015—that Kitchen
Planners last furnished materials to the Friedmans. Ninety days from August 18,
2015, would have been November 16, 2015; Kitchen Planners served the
Friedmans on November 17, 2015, which was ninety-one days after Kitchen
Planners last furnished materials to the Friedmans. Therefore, we find the circuit
court did not err by concluding Kitchen Planners failed to timely serve the lien.
Further, because Kitchen Planners failed to serve the lien within ninety days, it
must be dissolved, regardless of whether the foreclosure action was filed within six
months.2 See Shelby Constr., 287 S.C. at 27, 336 S.E.2d at 490 (stating if a person
claiming a lien fails to take any one of the three steps required to perfect and
enforce the lien, the lien against the property is dissolved). Based on the
foregoing, we find the circuit court did not err by granting the Friedmans' motion
for summary judgment.
2. Actual Use
Next, Kitchen Planners argues there is a genuine issue of material fact as to
whether its labor or materials were installed in the Friedmans' home. It contends
Viggiano's estimate demonstrated some of the materials it furnished were installed
and argues it satisfied section 29-5-10 because it performed all of the labor
required under the contract, which was used in the design of the kitchen. Kitchen
Planners concedes it recovered the actual wholesale cost of the cabinets but argues
it spent "hundreds of hours" designing and implementing the remodeling of the
kitchen and was entitled to the balance of the contract price for its labor and the
expense of the cabinets.3 We disagree.
Viewing the evidence in the light most favorable to Kitchen Planners, we find it
failed to show the materials were actually used in the Friedmans' home. See
§ 29-5-10 ("A person to whom a debt is due for . . . materials furnished and
actually used in the erection, alteration, or repair of a building . . . shall have a lien
upon the building . . . to secure the payment of the debt due to him." (emphasis
2
We note Kitchen Planners argues the circuit court should not have made
decisions concerning credibility when, in denying her motion to reconsider, the
court stated Comose's affidavit "was not credible as it was a self-serving
statement" and contradicted all other evidence, including Comose's deposition.
Though we note witness credibility is not a proper consideration in deciding a
motion for summary judgment, given our standard of review on appeal, we need
not consider this argument. See David, 367 S.C. at 247, 626 S.E.2d at 3 ("When
reviewing an order granting summary judgment, the appellate court applies the
same standard as the trial court."); Gecy, 422 S.C. at 516, 812 S.E.2d at 754 ("A
court considering summary judgment neither makes factual determinations nor
considers the merits of competing testimony . . . ." (quoting M&M Grp., Inc., 379
S.C. at 473, 666 S.E.2d at 264)).
3
Kitchen Planners asserts Comose's hourly rate was $125 per hour. However, this
figure does not appear in the record. Further, the record contains no evidence as to
the number of hours Kitchen Planners spent on the project.
added)); 22 S.C. Jur. Mechanics' Liens § 14 (noting the materials furnished must
"be incorporated into the structure or become fixtures"). In their answer, the
Friedmans asserted the cabinets were never installed. In its responsive pleading,
Kitchen Planners admitted those allegations, and Comose acknowledged the
cabinets were not installed. Although Kitchen Planners asserts that because the
Friedmans refused to allow the cabinets to be installed they should be estopped
from avoiding the lien on this basis, it raises this argument for the first time on
appeal. See Herron, 395 S.C. at 465, 719 S.E.2d at 642 ("It is 'axiomatic that an
issue cannot be raised for the first time on appeal.'" (quoting Wilder Corp., 330
S.C. at 76, 497 S.E.2d at 733)). Further, the Viggiano estimate does not create a
genuine issue of material fact because the statement "[a]ll useable hardware and
drawers from the existing Crystal cabinets will be reflected as a credit in final
price" is not probative of whether any such items were actually installed. Based on
the foregoing, we find the only reasonable inference that can be drawn from the
pleadings and evidence is that the materials were never installed in the Friedmans'
home. See Hansson, 374 S.C. at 354-55, 650 S.E.2d at 70 ("Summary judgment is
appropriate when 'the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.'" (quoting Rule 56(c), SCRCP)). Accordingly, we
find there was no genuine issue of material fact as to whether the materials were
installed in the Friedmans' home.
3. Overhead and Profit
Kitchen Planners contends the circuit court erred by concluding it claimed more
than it was entitled to under the lien in violation of section 29-5-100. See
§ 29-5-100 (providing an "inaccuracy . . . in stating the amount due for labor or
materials shall invalidate the proceedings[ if] it appear[s] that the person filing the
certificate has wil[l]fully and knowingly claimed more than is his due"); see also
Zepsa Constr. Inc., 357 S.C. 32, 591 S.E.2d 29 (holding overhead and profit are
recoverable only "in the limited situation where the terms of overhead and profit
are agreed upon by the parties and are subsequently embodied within a contract").
Because we have concluded Kitchen Planners failed to satisfy the statutory
requirements to establish the existence of a valid lien, we need not address this
issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518
S.E.2d 591, 598 (1999) (stating an appellate court need not address remaining
issues when its determination of a prior issue is dispositive).
For the foregoing reasons, we find there was no genuine issue of material fact as to
Kitchen Planners' claim for a mechanic's lien and foreclosure. Thus, we find the
circuit court did not err by granting summary judgment in favor of the Friedmans.
II. Motion to Strike
Kitchen Planners argues the Friedmans failed to serve Mr. Friedman's affidavit
with their motion to dismiss and therefore the circuit court erred by denying its
motion to strike the affidavit as untimely pursuant to Rule 6(d), SCRCP.
Additionally, it contends the circuit court erred by allowing the Friedmans to
convert a motion to dismiss into a motion for summary judgment. We disagree.
First, we find unpreserved Kitchen Planners' argument the circuit court improperly
treated the motion to dismiss as a motion for summary judgment because it
advances this argument for the first time on appeal. See Herron, 395 S.C. at 465,
719 S.E.2d at 642 ("It is 'axiomatic that an issue cannot be raised for the first time
on appeal.'" (quoting Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733)).
Regardless, even assuming the argument is preserved, we find the circuit court did
not err by treating the motion as one for summary judgment. Rule 12(b), SCRCP,
provides:
If, on a motion . . . to dismiss for failure of the pleading
to state facts sufficient to constitute a cause of action,
matters outside the pleading are presented to and not
excluded by the [c]ourt, the motion shall be treated as
one for summary judgment and disposed of as provided
in Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to such
a motion by Rule 56.
(emphasis added). When the court treats a motion to dismiss as a motion for
summary judgment, the "parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56." See Rule 12(b), SCRCP.
Here, although the Friedman's motion was titled "motion to dismiss," the body of
the motion referenced only Rule 56 and did not reference Rule 12(b)(6).
Therefore, we find the reference to Rule 56 in the body of motion was sufficient to
place Kitchen Planners on notice that the Friedmans intended to proceed with a
motion for summary judgment. Kitchen Planners did not argue it had an
insufficient opportunity to present evidence in opposition to the Friedmans' motion,
and in fact it did present evidence in opposition. Accordingly, even assuming the
issue is preserved, we find the circuit court did not err by treating the motion as a
motion for summary judgment.
Finally, we find the circuit court did not abuse its discretion by refusing to strike
Mr. Friedman's affidavit. See Peterson v. Nat'l R.R. Passenger Corp., 365 S.C.
391, 399, 618 S.E.2d 903, 907 (2005) ("The admission of evidence is within the
sound discretion of the trial judge, and absent a clear abuse of discretion
amounting to an error of law, the trial court's ruling will not be disturbed on
appeal."). Rule 6(d), SCRCP, provides, "A written motion . . . shall be served not
later than ten days before the time specified for the hearing . . . . When a motion is
to be supported by affidavit, the affidavit shall be served with the motion . . . ."
However, Rule 56, SCRCP, governs motions for summary judgment and does not
require that the moving party support its motion with affidavits. See Rule 56(b),
SCRCP ("A party against whom a claim, counterclaim, or cross-claim is
asserted . . . may, at any time, move with or without supporting affidavits for a
summary judgment in his favor as to all or any part thereof." (emphases added)).
Pursuant to Rule 56(c), the party moving for summary judgment must serve the
motion at least ten days before the hearing. Rule 56(c), SCRCP. Here, the motion
for summary judgment was filed on January 17, 2017. The hearing on the
Friedmans' motion was held April 25, 2017. Although they filed their
memorandum and exhibits on April 20, 2017, the Friedmans served Kitchen
Planners with Mr. Friedman's affidavit on April 13, 2017. Further, Kitchen
Planners had an opportunity to—and did submit—an opposing affidavit, which the
circuit court accepted. Therefore, we find the circuit court did not abuse its
discretion by refusing to exclude the affidavit.
III. Attorney's Fees
Kitchen Planners argues the circuit court erred by awarding attorney's fees because
the Friedmans did not properly prove they were entitled to such fees. We disagree.
A party defending against a mechanic's lien may recover a reasonable attorney's
fee in defending against the lien. See § 29-5-20(a) ("If the party defending against
the lien prevails, the defending party must be awarded . . . a reasonable attorney's
fee as determined by the court. The fee and the court costs may not exceed the
amount of the lien."). Because we concluded the Friedmans were entitled to
summary judgment, we find the circuit court did not err by concluding they were
entitled to reasonable attorney's fees as the prevailing party. See §§ 29-5-10, -20.
When determining a reasonable attorney's fee, courts should consider the six
factors set forth in Jackson v. Speed, 326 S.C. 289, 308, 486 S.E.2d 750, 760
(1997). Here, the Friedmans set forth their request for $16,594.68 in attorney's
fees in the memorandum supporting their motion for summary judgment and an
accompanying affidavit, which they filed several days before the hearing. The
circuit court granted the request, finding the fees set forth in the affidavit met "the
factors necessary to determine reasonable attorney's fees as set out in Rule 407,
[SCACR], and Jackson v. Speed" but did not specify or analyze these factors.
Although Kitchen Planners challenges the amount and reasonableness of the fee, it
raised this argument for the first time in its Rule 59, SCRCP, motion. Because
Kitchen Planners could have raised this argument at or before the hearing, we find
it unpreserved for our review. See Johnson v. Sonoco Prods. Co., 381 S.C. 172,
177, 672 S.E.2d 567, 570 (2009) ("An issue may not be raised for the first time in a
motion to reconsider."). Accordingly, we find the circuit court did not err by
awarding $16,594.68 in attorney's fees.
CONCLUSION
We find Kitchen Planners failed to serve and file its mechanic's lien within ninety
days of the last date it supplied materials or labor and no evidence showed the
materials were actually used in the home. Therefore, we affirm the circuit court's
order granting summary judgment in favor of the Friedmans pursuant to sections
29-5-10 and -90. Further, we find the circuit court did not err by treating the
motion as a motion for summary judgment or by refusing to strike Mr. Friedman's
affidavit. Finally, we find the circuit court did not err by awarding attorney's fees
to the Friedmans. For the foregoing reasons, the ruling of the circuit court is
AFFIRMED.
KONDUROS and HILL, JJ., concur.