Madison Highlands Development Co. v. Dean and Son Plumbing Co., Inc.

• Decision Date: 09 June 1982
• Citation: 415 So.2d 1129
• Parties: MADISON HIGHLANDS DEVELOPMENT CO. v. DEAN AND SON PLUMBING CO., INC. Civ. 3165.
• Court: Alabama Court of Civil Appeals

Page 1129

415 So.2d 1129

MADISON HIGHLANDS DEVELOPMENT CO. v. DEAN AND SON PLUMBING CO., INC.

Civ. 3165.

Court of Civil Appeals of Alabama.

June 9, 1982.

H. E. Miller, Jr., Nashville, Tenn., for appellant.

L. H. Little, Jr. of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellee.

WRIGHT, Presiding Judge.

Dean and Son Plumbing Company, Inc. (Dean) instituted suit against Madison Highlands Development Company (MHDC), H. E. Miller, and Union National Bank to recover a lien judgment for $1,000. The complaint contained counts for breach of contract; work, labor and materials furnished; open account; and account stated. MHDC counterclaimed for damages in the amount of $1,500. The case was tried to the court sitting without a jury. The trial court entered judgment for Dean in the amount of $1029.10 against MHDC and awarded a judgment lien therefor. MHDC was denied relief on the counterclaim. MHDC's motion to alter judgment was denied and MHDC appeals to this court.

The record reveals that the case arose out of the following circumstances:

On October 11, 1979, Dean and MHDC entered into a written contract whereby Dean would provide specified plumbing services for a total price of $8,500. The contract allowed for a specific payment schedule. Furthermore, it contained the following clause: "Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders." Subsequent to October 11, 1979, Dean commenced additional work for a grocery store which was part of the MHDC property. Miller, as president of MHDC, verbally authorized the work for Hall, the prospective tenant. ¹ Miller testified that although MHDC paid Dean $659.68 in connection with the extra work, such payment was merely an accommodation and made only because Hall was not then available to advance the funds. Miller testified that he expected reimbursement from Hall and that Dean was to look to Hall for the balance of the payments. Dean, however, added the cost of the extra work to MHDC's account. Dean testified that the additional work was done at Miller's request. Dean, therefore, looked to MHDC for payment. The payment of $659.68 on the extra work reinforced Dean's belief that MHDC would accept responsibility for the extra work.

Dean billed MHDC periodically, but the billing was not consistent with the terms of the contract. The "final bill" was dated June 4, 1980, and showed a balance of $1,000. A bill dated June 18, 1980, showed an extra $29.10 due for materials. Dean testified that the last work performed on the MHDC property was in November 1980. On February 25, 1981, Dean filed a lien on the MHDC property and commenced the instant suit via a four-count complaint.

The first issue raised on appeal is whether the trial court erred in awarding a lien against MHDC's property for the amount of the judgment. MHDC contends that suit to enforce the lien was not brought within statutory time limits. We agree.

To secure enforcement of a lien, the mechanic or materialman must file notice of his lien claim within six months after last work performed or material furnished and commence suit within six months after the maturity of the entire indebtedness. Howell v. Hallett Manufacturing Co., 278 Ala. 316, 178 So.2d 94 (1965).

Section 35-11-215, Code (1975) provides:

The lien declared in this division shall be deemed lost unless the statement ... shall be filed by every original contractor within six months ... after the last item of work or labor has been performed....

Dean contends that work performed on the MHDC property in November 1980 was within six months of the filing of the lien and commencement of the suit for its enforcement was therefore timely. It is well settled, however, that a mechanic's lien is not perfected until every requirement of the statute is met. Hartford Accident and Indemnity Company v. American Country Clubs, Inc., 353 So.2d 1147 (Ala.1977).

Section 35-11-221, Code (1975) provides:

Any action for the enforcement of the lien declared in this division must be commenced within six months after the maturity of the entire indebtedness secured thereby, except as otherwise provided in this division. (Emphasis supplied.)

Maturity of the debt has been defined as the date such debt accured so as to be due and payable. Starek v. TKW, Inc., 410 So.2d 35 (Ala.1982). Although Dean claims to have performed work on the property as late as November 1980, the record clearly reveals that the final bill for the work was issued in June 1980. The full balance was therefore due and payable more than six months before suit was...