A.V.A. Const. Corp. v. Santee Wando Const.
| Decision Date | 05 November 1990 |
| Docket Number | No. 1581,1581 |
| Court | South Carolina Court of Appeals |
| Parties | A.V.A. CONSTRUCTION CORPORATION, Appellant, v. SANTEE WANDO CONSTRUCTION, Respondent. . Heard |
Steven L. Smith, Smith & Associates, North Charleston, for appellant.
Ivan N. Nossokoff and A. Arthur Rosenblum, Charleston, for respondent.
Plaintiff, A.V.A. Construction Corporation (Contractor) Appellant herein, brought this action against Defendant, Santee Wando Corporation (Owner) Respondent herein, to foreclose a mechanic's lien or alternatively to recover under breach of contract or quantum meruit. The owner moved to dismiss the mechanic's lien claim and vacate the lis pendens notice under Rule 12(b)(6) SCRCP alleging that no true account had been filed and no building or structure had been placed on the realty. The motion was granted, and the Contractor was permitted to proceed as for a breach of contract. The Contractor appeals. We reverse and remand.
The real estate involved is comprised of 43 acres divided into 87 building lots plus a tennis court, 60 feet by 120 feet. The Contractor agreed with the Owner to develop the tennis court, provide drainage facilities, build roads with curbs, clear and grade land in anticipation of completing a subdivision and selling the residential lots. The Contractor's claim is for $98,632.79, it apparently being only a portion of a larger contract. At the time this action was commenced, no houses had been constructed on any of the lots.
The Contractor has filed nine exceptions, argued in the form of five questions in its brief. The issues upon which the appeal must be decided are less numerous, they being: (1) Whether paved asphalt roads, curbs, sewer and drainage facilities, and a tennis court are structures contemplated by the mechanic's lien statute, 1976 Code, Annotated, § 29-5-10 (Supplement 1989); (2) Whether a mechanic's lien encumbers the entire subdivision or only the earth lying beneath improvements provided; and (3) Whether a statement of account which is not itemized will invalidate the lien?
The trial court in dismissing the mechanic's lien facet of the litigation relied in large measure on this Court's ruling in Clo-Car Trucking Company, Inc. v. Clifflure Estates of South Carolina, 282 S.C. 573, 320 S.E.2d 51 (Ct.App.1984). The statute involved here states in relevant part as follows (§ 29-5-10 of the Code):
Any person to whom a debt is due for labor performed or furnished or for materials furnished and actually used in the erection, alteration, or repair of any building or structure upon any real estate ... by virtue of an agreement with, or by consent of, the owner of the building or structure ... shall have a lien upon the building or structure and upon the interest of the owner thereof in the lot of land upon which it is situated to secure the payment of the debt due to him. The work is considered to include, but not be limited to, the grading, bulldozing, leveling, excavating and filling of land (including the furnishing of fill soil), the grading and paving of curbs and sidewalks and all asphalt paving, the construction of ditches and other drainage facilities, and the laying of pipes and conduits for water, gas, electric, sewage and drainage purposes. (Emphasis Added)
We think the trial judge erred in failing to distinguish the two cases. A reading of Clo-Car reveals: "There is no allegation in the Complaint that the clearing and grading were done in connection with the construction or erection of any building or structure upon the land other than 'streets and roads,' which, as we gather from the record were never built."
There has been over the years a tendency of the General Assembly to liberalize the mechanic's lien statute, making available each time a lien to additional providers of labor and materials. Had the labor and materials in this case been provided for the construction of hard-surfaced driveways on particular lots, it would hardly be argued that the statute does not apply even though the residential buildings were yet to come. The tennis court, roads, streets, gutters, and drainage facilities were not provided for any particular lot...
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