Abell-Howe Co. v. Industrial Development Bd. of City of Irondale
| Decision Date | 03 December 1980 |
| Docket Number | ABELL-HOWE |
| Citation | 392 So.2d 221 |
| Parties | COMPANY v. The INDUSTRIAL DEVELOPMENT BOARD OF the CITY OF IRONDALE and Vulcan MetalProducts Company, Inc. Civ. 2391. |
| Court | Alabama Court of Civil Appeals |
Sydney Lavender, John D. Quenelle, and David P. Whiteside, Jr., of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellant.
Irvine C. Porter, Birmingham, for appellee The Industrial Development Bd. of the City of Irondale.
Kenneth Perrine, Birmingham, for appellee Vulcan Metal Products Co., Inc.
This is an appeal from the denial of judgment for Abell-Howe Company (hereinafter Abell-Howe) under the materialman's lien law, §§ 35-11-210 and 35-11-218, Code of Ala. 1975, and the granting of judgment for Vulcan Metal Products Company, Inc. (hereinafter Vulcan Metal) on its malicious prosecution action.)
We affirm the trial court's denial of judgment for Abell-Howe on the lien claim and reverse its judgment for Vulcan Metal on the malicious prosecution claim.
Viewing the record with all due presumptions, the following is revealed: Abell-Howe instituted its action to enforce a materialman's lien against the defendants, The Industrial Development Board of The City of Irondale (hereinafter the Board) and Vulcan Metal.
Prior to the institution of this action, Vulcan Metal owned several adjacent parcels of land at the same address. Vulcan Metal later conveyed one parcel to the Board, which promptly leased it back to Vulcan Metal, with an option to buy for a nominal fee at the end of the lease.
R & G Engineering Company (hereinafter R & G), which is not a party to this action, contracted with the Board to provide the Board with four jib cranes, which were to be attached to a concrete foundation or a concrete column. R & G then contracted with Abell-Howe to provide the cranes. R & G requested that Abell-Howe deliver the cranes to the Board in care of Vulcan Metal at the street address of Vulcan Metal.
Abell-Howe delivered the cranes, but R & G went bankrupt before paying for them.
There was evidence introduced at trial that the Board had paid R & G for the cranes before R & G went bankrupt.
In an attempt to recover payment for the cranes, counsel for Abell-Howe began proceedings to establish a materialman's lien under § 35-11-210 of the Code.
The lien created by the statute attaches to the land to which the materials are affixed. Abell-Howe was unable to determine whether the cranes had been attached to the property owned by the Board or that owned by Vulcan Metal. Abell-Howe therefore notified both the Board and Vulcan Metal of its intention to claim a lien on the property to which the cranes had been affixed. In reply, Vulcan Metal denied that Vulcan Metal was indebted to Abell-Howe and refused to inform Abell-Howe whether the cranes had been attached to Vulcan Metal's property.
In order to protect the rights granted it by the materialman's lien statute, Abell-Howe filed verified statements of lien as to both parcels of property. Abell-Howe then filed a complaint to enforce the liens. In its complaint, Abell-Howe noted that one parcel was owned by the Board and one was owned by Vulcan Metal but that Abell-Howe only claimed a lien on the property to which the cranes had been affixed.
Vulcan Metal filed a counterclaim, contending that the suit instituted by Abell-Howe constituted malicious prosecution. Vulcan Metal alleged that Abell-Howe was aware that the cranes had not been affixed to Vulcan Metal's property and that Vulcan Metal was not indebted to Abell-Howe. It was further alleged that Abell-Howe wrongfully and maliciously filed a lien on Vulcan Metal's property and that its reputation in the business community was damaged as a result of such action.
There are three issues on appeal. First, is property owned by an industrial development board subject to the establishment of a materialman's lien under § 35-11-210 of the Code of Alabama 1975? Second, did the trial court err as a matter of law in denying judgment for Abell-Howe on its materialman's lien claim? Third, did the trial court err as a matter of law in granting judgment for the defendants on their malicious prosecution claim?
The first issue on appeal is whether a materialman's lien may attach to property owned by an industrial development board.
Counsel for Abell-Howe contends such property is subject to the materialman's lien statute, § 35-11-210, Code of Ala.1975. We agree.
It is a well established rule of law that a materialman's lien will not attach to the public property of a municipal corporation. Scruggs & Echols v. Decatur, 155 Ala. 616, 46 So. 989 (1908); Nunnally v. Dorand, 110 Ala. 539, 18 So. 5 (1895). However, an industrial development board organized pursuant to §§ 11-54-80 et seq., Code of Ala.1975, is not a municipal corporation nor is it a subdivision or agency of a municipal corporation. Opinion of the Justices, 254 Ala. 506, 49 So.2d 175 (1950). Further, an industrial development board is not the state, a county, or a subdivision or agency of either. Such a board is a separate and independent corporate entity. George A. Fuller Co., Inc. v. Vulcan Materials Co., S. E. Div., 293 Ala. 199, 301 So.2d 74 (1974); Opinion of the Justices, supra.
We also note an industrial development board under § 11-54-87, Code of Ala.1975, has the power to acquire, hold, and dispose of real property in its own name. Further, § 11-54-94, Code of Ala.1975, provides that upon the dissolution of an industrial development board, title to all property owned by the board shall vest in the municipality. Under these Code sections, title to industrial development board property is not in a municipal corporation. It is in the board, a distinct corporate entity.
In addition to the above, we note that it is the policy the Alabama legislature to provide some form of protection for materialmen. This policy is evidenced by the materialman's As indicated above, a materialman's lien will not attach to property owned by the state, a county, or a municipal corporation. Scruggs & Echols v. Decatur, supra; Nunnally v. Dorand, supra. Under the public works bonding statute, a contractor who is to perform work upon the property of the state, a county, or a municipal corporation must first execute a performance bond to insure the satisfaction of materialman's claims. § 39-1-1, Code of Ala.1975. The performance bond serves as a substitute for the unavailable materialman's lien. Headley v. Housing Authority of Prattville, Ala.Civ.App., 347 So.2d 532 (1977).
lien statute, § 35-11-210, Code of Ala.1975, and the public works bonding statute, § 39-1-1, Code of Ala.1975.
In George A. Fuller Co., Inc. v. Vulcan Materials Co., S. E. Div., supra, the Supreme Court of Alabama, after finding industrial development boards to be separate and independent corporate entities, held the public works bonding statute to be inapplicable to contractors performing work on industrial development board property. Put another way, materialmen supplying goods to these contractors are not protected by the public works bonding statute.
If § 35-11-210 were held inapplicable to property owned by an industrial development board, materialmen furnishing material for improvements on board land would be denied the protection of both the public works bonding statute and the materialman's lien statute. We do not believe our supreme court intended this to be the result of its ruling in George A. Fuller Co., Inc. v. Vulcan Materials Co., S. E. Div., supra, nor do we feel such a holding would further our legislature's policy of protecting materialmen.
For the above indicated reasons, we find that the materialman's lien created by § 35-11-210 may attach to real property owned by an industrial development board.
The next issue is whether the trial court erred as a matter of law in denying judgment for Abell-Howe on its claim for a statutory lien under § 35-11-210.
The purpose of § 35-11-210 is to protect one who supplies labor or materials for any building or improvement on land when he does so at the request of a contractor or subcontractor, rather than the owner of land. To guarantee that the supplier is paid for his services or labor, this statute allows him to establish a lien on the improvements and the land.
Section 35-11-210 provides for two types of liens; (1) a lien for the full price of the materials furnished and (2) a lien for the amount of the unpaid balance due the contractor from the owner.
The full price lien can arise by virtue of...
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