Associated Dealers Supply, Inc. v. Mississippi Roofing Supply, Inc.

• Decision Date: 14 August 1991
• Docket Number: No. 07-CA-59458,07-CA-59458
• Citation: 589 So.2d 1245
• Parties: ASSOCIATED DEALERS SUPPLY, INC. and Bankers Trust of Louisiana v. MISSISSIPPI ROOFING SUPPLY, INC., Frierson Building Supply Company, Addison Corporation, Intervest Corporation & Red Apple Inn, Ltd.
• Court: Mississippi Supreme Court

Page 1245

589 So.2d 1245

ASSOCIATED DEALERS SUPPLY, INC. and Bankers Trust of Louisiana v. MISSISSIPPI ROOFING SUPPLY, INC., Frierson Building Supply Company, Addison Corporation, Intervest Corporation & Red Apple Inn, Ltd.

No. 07-CA-59458.

Supreme Court of Mississippi.

Aug. 14, 1991.

As Modified on Denial of Rehearing Oct. 9, 1991.

David W. Mockbee, Julie Sneed Muller, Phelps & Dunbar, Joseph E. Lotterhos, R.

Keith Foreman, Bennett Lotterhos, Sulser & Wilson, Jackson, for appellants

Steve Younger, E. Stephen Williams, Young Scanlon & Sessums, Jackson, for appellees.

Before ROY NOBLE LEE, C.J., and SULLIVAN and PITTMAN, JJ.

SULLIVAN, Justice, for the Court:

This cause comes on appeal from the Chancery Court of the First Judicial District of Hinds County, Mississippi. Intervest Corporation (Intervest) and Red Apple Inn, Ltd. (Red Apple) initiated an interpleader action in the chancery court naming as defendants A.R.H. Sales, Inc., Frierson, Mississippi Roofing, Addison Corporation (Addison), Solar Hardware Company (Solar), and Swanson Metal Products (Swanson).

Associated Dealers Supply, Inc. (Associated Dealers) and Bankers Trust of Louisiana (Bankers Trust) intervened in the action claiming that Intervest was the prime contractor and A.R.H. was a materialman or subcontractor. Therefore, the suppliers were mere general creditors, and they, being assignment creditors with prior claims, had priority to the interpled funds. ¹

The chancellor found that Intervest was a co-owner of the Red Apple Inn and A.R.H. was a prime contractor. Based on this finding, the chancellor concluded that Frierson, Addison, and Mississippi Roofing were materialmen to the contractor and awarded them a pro rata share of the interpled funds pursuant to Miss.Code Ann. Sec. 85-7-181 (Supp.1987). ² The chancellor also found that the assignments from A.R.H. to Associated Dealers and Bankers Trust, to the extent that the assignments would dispose of the contract proceeds between A.R.H. and Intervest, were invalid pursuant to Miss.Code Ann. Sec. 85-7-183 (1972). Associated Dealers and Bankers Trust appeal. We reverse and render in part and remand in part.

THE FACTS

Steve Nail is an equal shareholder and Vice President of Intervest, a Mississippi corporation incorporated on January 21, 1987. Nail, also, is a general partner of Red Apple, a Mississippi limited partnership established in 1986. Nail, acting through Red Apple, obtained a $1,250,000.00 loan for the construction of an apartment complex named the Red Apple Inn. After obtaining the loan under the name Red Apple, Nail began acting through Intervest to make draws on the Red Apple loan. From April, 1987, through October, 1987, Intervest applied for and received draws from the bank, deposited the Red Apple loan money in its Intervest account, and used the money to pay for the expenses associated with the construction of the Red Apple Inn.

An Intervest employee, Len McCollum, was the superintendent of the construction of the Red Apple Inn, but Intervest did not provide any actual labor associated with the construction. Intervest hired electricians, plumbers, framers, painters, roofers, and others to perform the actual work. A.R.H. was one of the companies hired by McCollum to provide some of the materials and labor.

On July 21, 1987, Red Apple received a materialman's stop notice from Frierson alleging that A.R.H. had not paid Frierson $52,688.56 for materials it provided to A.R.H., the subcontractor, which were used in the construction of the Red Apple Inn. On September 24, 1987, Red Apple received another materialman's stop notice from Mississippi Roofing alleging that A.R.H., the subcontractor, had not paid Mississippi Roofing $8,080.67 for materials it supplied to A.R.H., the subcontractor, which were used in the construction of the Red Apple Inn.

Upon receiving the stop notices, Intervest made no further payments to A.R.H. Frierson and Mississippi Roofing agreed to release the lis pendens if Red Apple and Intervest would interplead $40,349.40 which Red Apple and Intervest owed to A.R.H. Red Apple and Intervest agreed, and on October 20, 1987, Intervest requested a final draw on its loan and deposited it with the Chancery Clerk of Hinds County.

THE LAW

DID THE CHANCELLOR ERR IN FINDING THAT THE SUPPLIERS TO A.R.H. WERE ENTITLED TO A LIEN PURSUANT TO MISS.CODE ANN. Sec. 85-7-181 BECAUSE A.R.H. SALES, INC., AND NOT INTERVEST CORPORATION, WAS THE PRIME CONTRACTOR?

Frierson, Mississippi Roofing, and Addison (the suppliers) contend that they are entitled to the interpled funds pursuant to Miss.Code Ann. Sec. 85-7-181 (Supp.1990), because they are materialmen to A.R.H., the contractor. The relevant code section reads in pertinent part:

When any contractor or master workman shall not pay any person who may have furnished materials used in the erection, construction ... of any house, building, [or] structure ... the amount due by him [the contractor] to any subcontractor therein ..., any such person, subcontractor, ... may give notice in writing to the owner ...; and thereupon the amount that may be due upon the date of the service of such notice by such owner to the contractor or master workman, shall be bound in the hands of such owner for the payment in full, or if insufficient then pro rata....

Miss.Code Ann. Sec. 85-7-181 (Supp.1990).

To recover under Sec. 85-7-181, Frierson, Mississippi Roofing, and Addison must be subcontractors or materialmen to the prime contractor. Subcontractors or materialmen to another subcontractor are not entitled to recovery under this statutory provision. Jesco, Inc. v. Jeffreys Steel Co., Inc., 571 F.Supp. 801, 803 (N.D.Miss.1983) [citing Redd v. L & A Contracting Co., 246 Miss. 548, 151 So.2d 205, 207 (1963); Gammill Co. v. Guesnard, 167 Miss. 868, 150 So. 214, 215 (1933); Alabama Marble Co. v. USF & G Co., 146 Miss. 414, 111 So. 573, 574 (1927) ]; Monroe Bank & Trust Co. v. Allen, 286 F.Supp. 201, 207 (N.D.Miss.1968). In the absence of this statute's protection, the suppliers are general creditors. Kimberly-Clark Corp. v. Alpha Bldg. Co., 591 F.Supp. 198, 205-06 (N.D.Miss.1984); Nicholas v. Deposit Guaranty Bank & Trust Co., 248 Miss. 580, 587, 159 So.2d 187, 190 (1964); see also, Coatings Mfrs., Inc. v. D.P.I., Inc., 926 F.2d 474, 478 (5th Cir.1991). The dispositive issue in determining priority to the interpled funds is whether Intervest was the prime contractor in the construction of the Red Apple Inn.

The chancellor concluded that Intervest was a co-owner and A.R.H. was a prime contractor of the Red Apple Inn. The chancellor based these conclusions upon his findings that (1) Nail did not distinguish between Nail Properties, Intervest, and Red Apple, insofar as being the owners of the Red Apple Inn project, (2) Intervest was not in existence at the time the contract was made between Nail Properties and A.R.H., (3) Intervest could not have acted as contractor because it had not obtained a certificate of responsibility, and (4) Intervest could not have attempted, and did not attempt, to defeat the claims of the materialmen and suppliers. We do not disturb a chancellor's decision so long as substantial evidence supports it and the chancellor did not commit manifest error or apply an erroneous legal standard. Southern v. Glenn, 568 So.2d 281, 287 (Miss.1990).

Upon concluding that Intervest was a co-owner, the chancellor relied in part on this conclusion in finding that Intervest was not the prime contractor. We find that the fact that Intervest was a co-owner has no bearing on whether it was the contractor. Black's Law Dictionary defines "general contractor" or "prime contractor" as "[t]he party to a building contract who is charged with the total construction and who enters into sub-contracts for such work as electrical, plumbing and the like." Black's Law Dictionary, 349 & 621 (5th ed. 1983). An owner is not excluded from this definition.

While an owner is excluded from the definition of "contractor" for the purpose of obtaining a certificate of responsibility, the reason for this exclusion is that the certificate of responsibility serves to protect owners from "incompetent, inexperienced, unlawful and fraudulent acts of contractors," by making null and void any contracts for construction for which a certificate of responsibility should have been issued. See Miss.Code Ann. Secs. 31-3-1, -2 & -15 (1972), as Amended. Owners need no protection from themselves, so a certificate would serve no purpose.

The chancellor, additionally, relied on his findings that Intervest was not in existence when A.R.H. contracted to provide labor and supplies, Intervest had not obtained a certificate of responsibility prior to the construction of the Red Apple Inn, and Intervest did not attempt, and could not have attempted, to defeat the claims of the materialmen. These factors relied on by the chancellor were irrelevant to the issue of whether Intervest was the contractor of the Red Apple Inn. We look to what the chancellor should have considered--Intervest's activities.

The chancellor should have looked at Intervest's activities isolated from its ownership. If Intervest's activities were such that if it was not the owner, it would have been found to be the contractor, then the chancellor should have found that it was the contractor regardless of the fact that it was a co-owner. To disallow owners from being contractors, when in fact they are, would serve to inequitably subordinate claims of other parties to those subcontractors or materialmen who were in reality supplying a subcontractor, and not a contractor.

In the instant case, Intervest purchased a construction trailer, job phone, and office supplies to aid its employee, Len McCollum, who was the superintendent of the project. McCollum was responsible for pricing the project, putting it together, and hiring other contractors or workmen to complete the plumbing, electrical work, framing,...