301 E. SEVENTH ST. LTD. PARTNERSHIP v. Gellman Corp.

• Decision Date: 08 March 1991
• Docket Number: No. C-C-90-259-P.,C-C-90-259-P.
• Citation: 124 BR 687
• Court: U.S. District Court — Western District of North Carolina
• Parties: 301 EAST SEVENTH STREET LIMITED PARTNERSHIP, Plaintiff/Appellee, v. The GELLMAN CORPORATION, Defendant/Appellant.

124 B.R. 687 (1991)

301 EAST SEVENTH STREET LIMITED PARTNERSHIP, Plaintiff/Appellee, v. The GELLMAN CORPORATION, Defendant/Appellant.

No. C-C-90-259-P.

United States District Court, W.D. North Carolina.

March 8, 1991.

A. Stuart McKaig, III, McKaig & Keith, P.A., Albert F. Durham, J. Craig Whitley, Durham & Whitley, Charlotte, N.C., for plaintiff, appellee.

Mark W. Merritt, Garland S. Cassada, Robinson, Bradshaw & Hinson, P.A., J. Mitchell Aberman, Barbara J. Hellenschmidt, James McElroy & Diehl, Charlotte, N.C., for defendant, appellant.

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on an appeal filed by Defendant/Appellant Gellman Corporation (hereinafter "Defendant") from the Bankruptcy Court's Order of July 24, 1990 granting Plaintiff/Appellee 301 East Seventh Street's (hereinafter "Plaintiff") motion for partial summary judgment. On December 26, 1990, Defendant filed a brief in support of its appeal. Plaintiff responded on January 14, 1991 with its brief. On January 28, 1991, Defendant filed a reply brief.

The Court has conducted a de novo review of the Bankruptcy Court's Order. In particular, the Court has reviewed the entire record including the transcript from the hearing conducted by the Bankruptcy Court. Moreover, the Court has carefully considered the briefs filed by the parties, and the Court has reviewed the applicable law.

The record in this matter indicates that Defendant acted as a general contractor for renovations to property owned by Plaintiff. When Defendant failed to get paid for services rendered, it filed a lawsuit on December 17, 1987 in the Superior Court of Mecklenburg County, North Carolina to enforce its lien against Plaintiff in the amount of $75,829.62. On October 26, 1988, Plaintiff filed a voluntary petition for protection under Chapter 11 of the Bankruptcy Code in the Northern District of Georgia. Thereafter, venue was transferred to the Western District of North Carolina on January 25, 1989.

Plaintiff filed on January 19, 1990 a motion for partial summary judgment in the above captioned adversary proceeding. In its motion, Plaintiff argued that Defendant's contractor's license expired on December 31, 1986 and was not renewed in violation of N.C.Gen.Stat. Chapter 87, Art. 1 et. seq.. Therefore, Plaintiff contended that it was not liable for those expenses incurred by Defendant after December 31, 1986. See Brady v. Fulghum, 309 N.C. 580, 308 S.E.2d 327, 332 (1983) (holding that if a licensed contractor's license expires, for whatever reason, during construction, he may recover for only the work performed while he was duly licensed).

In response to the motion, Defendant asserted that N.C.Gen.Stat. § 87-10 provides a sixty (60) day grace period after the license expires. That statute provides in pertinent part:

. . . Certificate of license shall expire on the thirty-first day of December following the issuance or renewal and shall become invalid 60 days from that date unless renewed, subject to the approval of the Board. . . .

Although the license expired on December 31, 1986, Defendant contended that the license remained valid until March 1, 1987.

In reviewing the statute, the Bankruptcy Court concluded that the sixty (60) day period only applies if the license is renewed or a reexamination is conducted....