Harper v. J. & C. Trucking and Excavating Co., Inc.

• Decision Date: 13 December 1978
• Citation: 374 So.2d 886
• Parties: ALA CIV AP Albert HARPER, Individually, and d/b/a Albert Harper Construction Company, and George D. Knapp Contracting, Inc. v. J. & C. TRUCKING AND EXCAVATING COMPANY, INC., and Henry A. Stikes, Sr., as Trustee in Bankruptcy for the Estate of J. & C. Trucking and Excavating Company, Inc., and R. & T. Construction Company, Inc. Civ. 1588.
• Court: Alabama Court of Civil Appeals

Page 886

374 So.2d 886

ALA CIV AP Albert HARPER, Individually, and d/b/a Albert Harper Construction Company, and George D. Knapp Contracting, Inc. v. J. & C. TRUCKING AND EXCAVATING COMPANY, INC., and Henry A. Stikes, Sr., as Trustee in Bankruptcy for the Estate of J. & C. Trucking and Excavating Company, Inc., and R. & T. Construction Company, Inc.

Civ. 1588.

Court of Civil Appeals of Alabama.

Dec. 13, 1978.

Rehearing Denied Jan. 10, 1979.

Joseph J. Boswell, Mobile, for appellant, Albert Harper, individually and d/b/a Albert Harper Const. Co.

Alphonse Maples, Jr., Chase R. Laurendine, Mobile, for appellant, George D. Knapp Contracting, Inc.

Stephen R. Windom, Mobile, for appellee, Henry A. Stikes, Sr. as trustee.

Mayer W. Perloff, Mobile, for appellee, R. & T. Const. Co., Inc.

HOLMES, Judge.

This is an appeal from an order of the Circuit Court of Mobile County granting summary judgment in favor of R. & T. Construction Co., Inc., against defendants Knapp and Harper. Defendants Knapp and Harper appeal.

Plaintiff, Aluminum Corporation of America (ALCOA) commenced this action by filing a complaint for interpleader on June 20, 1976. Conflicting claims were asserted against the fund deposited in court by the plaintiff.

Defendant, Harper Construction Co. (Harper) and Knapp Contracting, Inc. (Knapp), asserted materialman's liens by way of counterclaim against the fund. Defendant, R. & T. Construction Co. (R&T) claimed to be the assignee of J. & C. Trucking and Excavating Company (J&C) and thus asserted it had a paramount right to the interpled funds. Each of these defendants moved for summary judgment against the others. The trial court, as noted above, granted summary judgment against defendants Knapp and Harper and in favor of R&T.

Defendants Harper and Knapp each individually appeal contending that the trial court erred in granting summary judgment against them. Each asserts that it has a valid materialman's lien.

The dispositive issue before us is whether the trial court improvidently granted summary judgment. We hold that in the case of Harper, there was no error. However, we find that defendant Knapp, in its counterclaim, stated a valid claim for a materialman's lien.

The record before us reveals the following: The plaintiff is the record titleholder of realty known as North Mud Lake located on Blakely Island in Mobile County. Pursuant to an agreement between plaintiff and defendant J&C, the plaintiff sought to improve this land and agreed to pay J&C, as general contractor, for constructing the improvements. J&C commenced construction and in May, 1976, plaintiff owed J&C an unpaid balance of approximately $7,300 for work which J&C had completed.

Defendant-Harper, a subcontractor of defendant J&C agreed to furnish trucks and drivers to J&C to haul soil to the plaintiff's property. According to Harper's affidavit which accompanied its motion for summary judgment, Harper furnished this equipment and labor until March 19, 1976, and as of that date, was owed some $6,500 by J&C. On April 15, 1976, Harper filed a statement of lien claim against the plaintiff's property in the Probate Court of Mobile County. After plaintiff filed its interpleader action, Harper, on August 9, 1976, asserted a counterclaim against the fund claiming a materialman's lien under Code of Ala.1975, § 35-11-210 Et seq.

The record further indicates that defendant-Knapp furnished fill dirt and rented earth moving equipment to J&C pursuant to J&C's contract with plaintiff. As of May 31, 1976, there was due and owing approximately $5,300 by J&C to Knapp. On May 27, 1976, Knapp sent written notice to plaintiff of its intent to claim a lien on plaintiff's property by virtue of nonpayment of the debt. In June, 1976, Knapp filed its claim of lien in the appropriate records of probate court. Subsequently, on October 26, 1976, Knapp asserted its counterclaim for a lien against the fund.

As noted above, defendant-R&T claims to be the assignee of the unpaid balance due from plaintiff to J&C. Accordingly, when defendants Harper and Knapp asserted their statutory lien claims, R&T moved for summary judgment against both, contending that neither had complied with the lien provisions set out in the Alabama Code.

J&C, its trustee in bankruptcy, Harper and Knapp each in turn moved for summary judgment against the others and against R&T as well.

Specifically, and with respect to the defendants on this appeal, these motions contended that Harper had failed, among other things, to give plaintiff notice of its intent to claim a lien prior to filing its lien statement in probate court as it was required to do under § 35-11-218. As regards Knapp's claim, the motions asserted that Knapp had failed, pursuant to § 35-11-221, to timely file suit to enforce its lien within the six months after J&C's debt to it matured. In addition, the motions asserted that Knapp had failed to file a verified lien statement in probate court which conformed to the substantive requisites set forth in § 35-11-213. Upon the trial court's decree rendering summary judgment against Harper and Knapp, this appeal was taken by each.

Prior to discussing the relevant provisions of Alabama's materialman's lien statute, we note that we are reviewing the record before us to determine whether the trial court erred in granting summary judgment. Consequently, we review the record absent the presumption of correctness which attends the trial court's decree when that court has taken the evidence Ore tenus. See, e.g., Spry Funeral Homes, Inc. v. Deaton, Ala.Civ.App., 363 So.2d 786 (1978).

With regard to the relevant provisions of Alabama's materialman's lien statute, we note that there are several conditions set forth in Code of Ala.1975, §§ 35-11-210, 213, 218, and 221, each of which must be satisfied in order for the lien to be perfected. Hartford Acc. & Indem. Co., Inc. v. American Country Clubs, Inc., Ala., 353 So.2d 1147 (1977). Where, as here, the claimant is a supplier other than an original contractor, he must fulfill three primary conditions to perfect his lien. The supplier must give the owner written notice of his intent to claim a lien on the owner's property pursuant to § 35-11-218. After giving this notice, § 35-11-213 specifies that the claimant must file a verified statement in the appropriate records of probate court claiming the lien. After satisfying the notice and filing requirements, the claimant must bring an action to enforce the lien within six months after the debt has matured pursuant to § 35-11-221.

Given these general rules, we discuss each of the contentions raised on this appeal as they relate to the statutory framework.

I NOTICE

The record reveals that defendant-Harper failed to give plaintiff written notice of its intent to claim a lien prior or subsequent to filing its lien statement in probate court.

Harper contends, however, that under § 35-11-218, the notice provisions were satisfied because plaintiff's suit for interpleader acknowledged Harper's potential claim for a lien and thus notice would have been a futile act. Further, Harper contends that even if this is not so, when it asserted its counterclaim to the fund, this was sufficient notice to plaintiff in that the complaint contained all the substantive information mandated by § 35-11-218's notice provisions. We agree with neither of these contentions.

Section 35-11-218 specifies in pertinent part:

"Every person . . . who may wish to avail himself of the provisions of this division, Shall before filing his statement in the office of the judge of probate, give notice in writing to the owner . . . that he claims a lien . . . setting forth the amount . . . for what, and from whom it is owing; and after such notice, any unpaid balance in the hands of the owner . . . shall be held subject to such lien. . . . " (Emphasis supplied.)

The purpose of this notice provision is to protect the owner. Gray v. McKinley, 34 Ala.App. 630, 43 So.2d 421, Cert. denied, 253 Ala. 199, 43 So.2d 424 (1949). This is so because the owner has a vital interest in removing Potential liens on his title. As the court in Fowler v. Mackentepe "It is further declared that, when a statutory lien is provided in derogation of the common law, it is looked upon with jealousy, is strictly construed, and there must be compliance in all matters of substance. This rule is necessary to protect the debtor and his property against unlawful expense, embarrassment, or impositions. . . . " (Citations omitted.)

233 Ala. 458, 460, 172 So. 266, 267 (1937), stated:

The notice provisions are designed to inform the owner that the claimant Intends to place an encumbrance upon the owner's land and thus the provisions ensure the owner an opportunity to effect a settlement between himself, his builder, and the supplier prior to any such encumbrancing.

In order for the section to retain its vitality and achieve its intended purpose, our cases hold that compliance with its provisions is mandatory. McClesky v. Finney, 272 Ala. 194, 130 So.2d 183 (1961).

Applying this reasoning to the instant case, we note that Harper has failed to give plaintiff notice of its intent to claim a lien. J & C's debt to Harper matured in March, 1976, and Harper filed its claim in probate court on April 15, 1976. Clearly, Harper could have given notice prior to the institution of plaintiff's interpleader on June 20, 1976, without such being a futile act. Harper apparently relied upon the vigilance of plaintiff to detect the potential cloud on plaintiff's property, and in this, Harper erred. The fact that plaintiff subsequently acquired actual knowledge of defendant's claim and named Harper as a defendant in its interpleader action does not ameliorate Harper's burden to give plaintiff notice in the first instance.

Furthermore, we disagree with Harper's contention that sufficient notice was given plaintiff when Harper counterclaimed against the fund deposited in court....