Outer Banks Contractors, Inc. v. Forbes, 791DC158

• Decision Date: 17 June 1980
• Docket Number: No. 791DC158,791DC158
• Citation: 267 S.E.2d 63,47 N.C.App. 371
• Parties: OUTER BANKS CONTRACTORS, INC. v. Sarah E. FORBES and Reggie Owens.
• Court: North Carolina Court of Appeals

Page 63

267 S.E.2d 63

47 N.C.App. 371

OUTER BANKS CONTRACTORS, INC. v. Sarah E. FORBES and Reggie Owens.

No. 791DC158.

Court of Appeals of North Carolina.

June 17, 1980.

Aldridge, Seawell & Khoury by Daniel D. Khoury, Manteo, for plaintiff-appellant.

Leroy, Wells, Shaw, Hornthal, Riley & Shearin by Norman W. Shearin, Jr., Kitty Hawk, and Ralph T. Baker, Newport News, Va., for defendant-appellee Forbes.

WEBB, Judge.

It appears from the notice of claim of lien filed in the case sub judice that the plaintiff is attempting to enforce a lien pursuant to N.C. General Statute Chap. 44A, Art. 2, Part 2. The lien notice states that plaintiff is a first tier subcontractor and follows the form prescribed by G.S. 44A-19 for filing a lien as a subcontractor. The complaint alleges a claim for a lien as a prime contractor under G.S. 44A, Art. 2, Part 1. An order was then consented to by plaintiff's attorney which recited that plaintiff was a subcontractor and Owens was the prime contractor who would be responsible for the labor and materials supplied by the subcontractor. This is a judicial finding binding on the parties. We hold that the plaintiff cannot establish a lien as a prime contractor when its own notice of claim of lien and the judicial findings to which it consented establish it as a subcontractor. The claim for a lien was properly dismissed.

In addition to the lien claim, the plaintiff, in its complaint, asked for a money judgment. In answer to interrogatories, the plaintiff stated it had made a contract with defendant Forbes to furnish labor and materials. In her affidavit, defendant Forbes denied she made a contract with plaintiff. We hold this shows a genuine issue which should have been submitted to the jury.

On the record before us, we hold that plaintiff is entitled to try its claim for a money judgment against the defendant Forbes, but it is not entitled to enforce its lien as a subcontractor.

We note that plaintiff made no assignment of error to the order striking its amended complaint. The exception to this order is deemed abandoned. Rule 10(c), N.C.Rules App.Proc.

Affirmed in part; reversed and remanded in part.

ARNOLD and WELLS, JJ., concur.