Cohen's Drywall v. Sea Spray Homes

• Decision Date: 23 July 2007
• Docket Number: No. 26360.,26360.
• Citation: 648 S.E.2d 598
• Court: South Carolina Supreme Court
• Parties: COHEN'S DRYWALL CO. INC., Appellant, v. SEA SPRAY HOMES, LLC, Robin C. Wahler, Susan C. Wahler, and Plantation Federal Bank, Respondents.

648 S.E.2d 598

COHEN'S DRYWALL CO. INC., Appellant, v. SEA SPRAY HOMES, LLC, Robin C. Wahler, Susan C. Wahler, and Plantation Federal Bank, Respondents.

No. 26360.

Supreme Court of South Carolina.

Heard June 5, 2007.

Decided July 23, 2007.

Steven L. Smith, of Smith & Koontz, of Charleston, for Appellant.

Joe M. Crosby, of Crosby Law Firm, of Georgetown, for Respondents.

Chief Justice TOAL.

This appeal arises out of the trial court's dismissal of an action to enforce a mechanics' lien on the basis that the action was not timely filed. We reverse.

FACTUAL / PROCEDURAL BACKGROUND

Appellant Cohen's Drywall Co., Inc. ("Appellant") performed work on and provided materials for the construction of a residence owned by Respondents Robin C. Wahler and Susan Wahler ("Respondents"). In April 2004, after completing work on the residence, Appellant properly filed a mechanics' lien against the Respondents' property. Shortly after Appellant filed the mechanics' lien, Respondents posted a cash bond to release the property from the mechanics' lien with the Georgetown County Clerk of Court and recorded the release of the lien with the Georgetown County Register of Deeds Office.

Approximately four months after Respondents posted the cash bond to release the real property from the lien, Appellant brought an action to enforce the mechanics' lien. Appellant named the real property as the subject of the enforcement action, and Appellant commenced the initial action within the six-month time limit provided in S.C.Code Ann. § 29-5-120 (2005). Subsequent to the initial filing, Appellant discovered that Respondents had posted a cash bond to release the real property from the lien. Appellant then amended the averments of its complaint to identify the bond as the subject of the enforcement action. This amendment occurred after the expiration of the time limit for bringing an action to enforce the mechanics' lien.

Respondents filed a motion to dismiss the enforcement action and a motion to release the bond alleging that Appellant failed to bring the action to foreclose the mechanics' lien against the bond within the six-month time limit. The trial court granted Respondents' motion to dismiss and released the bond from the lien. This appeal followed and this Court certified the case from the court of appeals pursuant to Rule 204(b), SCACR. Appellant raises the following issue for this Court's review:

Did the trial court err in granting Respondents' motion to dismiss the enforcement action and motion to release the cash bond from the mechanics' lien?

STANDARD OF REVIEW

The foreclosure of a mechanics' lien is an action at law. Butler Contracting, Inc. v. Court Street, LLC, 369 S.C. 121, 127, 631 S.E.2d 252, 256 (2006). In an action at law, tried without a jury, an appellate court will not disturb the trial court's findings of fact unless they are wholly unsupported by the evidence or unless it clearly appears the findings are controlled by an error of law. Id. (citing Townes Assocs. Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976)).

LAW / ANALYSIS

Appellant argues that the trial court erred in granting Respondents' motion to dismiss the enforcement action and motion to release the cash bond which secured the mechanics' lien. Specifically, Appellant alleges that the trial court erred in interpreting the relevant statutes to require Appellant to commence a separate action against the cash bond to enforce its mechanics' lien. Instead, Appellant argues its original enforcement action naming the Respondents' real property as the subject of the action is sufficient to secure foreclosure on the bond. We agree.

The procedures for the establishment and enforcement of a mechanics' lien are provided by statute. See S.C.Code Ann. §§ 29-5-10 et seq. (2005). The Code provides:

Unless a suit for enforcing the lien is commenced, and notice of pendency of the action is filed, within six months after the person desiring to avail himself thereof ceases to labor on or furnish labor or material for such building or structures, the lien shall be dissolved.

S.C.Code Ann. § 29-5-120.

Generally, a mechanics' lien is enforced against the real property upon which the services were performed or materials provided. See S.C.Code Ann. §§ 29-5-10 to -21. However, the Code provides that the property may be released from a mechanics' lien under certain circumstances. S.C.Code Ann. § 29-5-110.

At any time after service and filing of the statement required under § 29-5-90 the owner or any other person having an interest in or lien upon the property involved may secure the discharge of such property from such lien by filing in the office of clerk of court or register of deeds where such lien is filed his written undertaking, in an amount equal to one and one-third times the amount claimed in such statement, secured by the pledge of United States or State of South Carolina securities, by cash or by a surety bond executed by a surety company licensed to do business in this State, and upon the filing of such undertaking so secured the lien shall be discharged and the cash, securities or surety bond deposited shall take the place of the property upon which the lien existed and shall be subject to the lien. . . . Unless suit for enforcement of the lien is commenced as required by § 29-5-120, the undertaking herein required shall be null and void and the principal therein shall have the right to have it canceled and...