Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd.

• Decision Date: 02 November 1977
• Docket Number: No. 7726SC17,7726SC17
• Citation: 238 S.E.2d 525,34 N.C.App. 341
• Court: North Carolina Court of Appeals
• Parties: FRANK H. CONNER COMPANY v. SPANISH INNS CHARLOTTE, LIMITED, a North Carolina limited partnership, Emil Ball, Jerry M. Whipperfurth, Richard R. Holchek, and R. C. Benson, Individually and as general partners, Archie C. Walker, as Trustee and Wachovia Realty Investments, an Unincorporated Business Trust, and United Leasing Corporation, and Wachovia Mortgage Company.

Page 525

238 S.E.2d 525

34 N.C.App. 341

FRANK H. CONNER COMPANY v. SPANISH INNS CHARLOTTE, LIMITED, a North Carolina limited partnership, Emil Ball, Jerry M. Whipperfurth, Richard R Holchek, and R. C. Benson, Individually and as general partners, Archie C. Walker, as Trustee and Wachovia Realty Investments, an Unincorporated Business Trust, and United Leasing Corporation, and Wachovia Mortgage Company.

No. 7726SC17.

Court of Appeals of North Carolina.

Nov. 2, 1977.

Berry, Bledsoe & Hogewood by Louis A. Bledsoe, Jr. and Dean Gibson, Charlotte, and Womble, Carlyle, Sandridge & Rice by Donald A. Donadio and Kenneth A. Moser, Winston-Salem, for defendants-appellants.

HEDRICK, Judge.

The primary question raised by this appeal is whether the uncontroverted facts established by this record support the judgment declaring that plaintiff's lien dates from 17 October 1973 and has priority over the defendants' deed of trust recorded on 29 October 1973. The record clearly establishes that some labor and material was provided by plaintiff's subcontractor on 17, 18 and 22 October 1973, prior to the recording date of defendants' deed of trust. If, under the circumstances of this case, the services performed by plaintiff's subcontractor on 17, 18 and 22 October 1973 are lienable pursuant to G.S. 44A-8 (prior to its amendment in 1975), the trial judge was correct in declaring that plaintiff's lien on the subject property had priority over the defendants' deed of trust.

" § 44A-7. Definitions. . . . :

* * *

* * *

"(2) 'Improvement' means all or any part of any building, structure, erection, alteration, demolition, excavation, clearing, grading, filling, or landscaping, including trees and shrubbery, driveways, and private roadways, on real property.

* * *

* * *

" § 44A-8. Mechanics', laborers' and materialmen's lien; persons entitled to lien. Any person who performs or furnishes labor or furnishes materials pursuant to a contract, either express or implied, with the owner of real property for the making of an improvement thereon shall, upon complying with the provisions of this Article, have a lien on such real property to secure payment of all debts owing for labor done or . . . material furnished pursuant to such contract." (Emphasis added.)

In Smith v. South Mountain Properties, Inc., 29 N.C.App. 447, 224 S.E.2d 692, cert. denied, 290 N.C. 552, 226 S.E.2d 514 (1976), and Bryan v. Projects, Inc., 29 N.C.App. 453, 224 S.E.2d 689, cert. denied, 290 N.C. 550, 226 S.E.2d 509 (1976), this Court analyzed these statutes and held that labor furnished by land surveyors, landscape architects, planners, consultants, and other professionals pursuant to a contract with the owner to provide such services was not lienable under G.S. 44A-8. Labor performed in providing such professional services does not fall within the statutory definition of "improvement," G.S. 44A-7(2). Smith v. South Mountain Properties, Inc., supra; Bryan v. Projects, Inc., supra.

In the present case plaintiff was under contract to construct on Spanish Inns' property a large motel. Obviously, the construction of the motel falls within the statutory definition of an "improvement" to real property. It is debatable whether the labor done by plaintiff's subcontractor on 17, 18 and 22 October 1973 was "land surveying" as described in South Mountain and Bryan, or labor improving real property within the meaning of the statutory definition of "improvements." It is not necessary, however, that we make such a fine distinction in this or any similar case. Assuming arguendo that the labor performed by plaintiff's subcontractor on 17, 18 and 22 October 1973 was "land surveying," it was nevertheless labor performed pursuant to and in furtherance of plaintiff's indivisible contract with Spanish Inns to improve the real property. Any other reading of ...