Carolina Comfort v. Weddle

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Carolina Comfort Specialists, LLC, Respondent,

v.

Linda McGee Weddle and Derick Loyal Weddle,
Appellants.

Appellate Case No. 2016-002323

Appeal From Berkeley County
Dale Edward Van Slambrook, Master-in-Equity

Unpublished Opinion No. 2019-UP-191
Heard April 2, 2019 – Filed May 29, 2019

AFFIRMED

David Cochran Dick, Jr., of Law Office of David C.
Dick, of Charleston, for Appellants.

Frank M. Cisa, of The Law Firm of Cisa & Dodds, LLP,
of Mount Pleasant, for Respondent.

PER CURIAM: This case arises from Carolina Comfort Specialists, LLC's
(Carolina Comfort) efforts to foreclose a mechanic's lien. Linda and Derick
Weddle (collectively, the Weddles) argue the master-in-equity erred in (1) refusing
to dismiss the mechanic's lien claim for failing to comply with the statutory
requirements, (2) finding Linda Weddle (Wife) was a party to the underlying
contract, (3) improperly relying on the testimony of Gene Pardee as expert
testimony, and (4) finding the Weddles failed to properly plead their counterclaim
regarding an extended warranty. We affirm pursuant to Rule 220(b), SCACR, and
the following authorities:

1. The master did not err in failing to dissolve the mechanic's lien. In their
answer, the Weddles admitted Carolina Comfort's allegations that it filed and
recorded a mechanic's lien against the subject property and served the Weddles
with notice of the lien. Further, the Weddles failed to move to amend or strike
these admissions in their pleadings, and they acknowledged at trial that they were
bound by these admissions. See Ferguson Fire and Fabrication, Inc., v. Preferred
Fire Prot., LLC, 409 S.C. 331, 340, 762 S.E.2d 561, 565 (2014) ("[M]echanics'
liens are purely statutory and may be acquired and enforced only in accordance
with the terms and conditions set forth in the statutes creating them."); id. ("To
perfect and enforce a lien one must timely complete the following three steps
found in sections 29-5-90 and 29-5-120 of the South Carolina Code: (1) serve and
file a notice or certificate of the lien, (2) commence a lawsuit to enforce the
lien, and (3) file a lis pendens."); id. ("Moreover, if the person furnishing the labor
or materials was employed by someone other than the owner (such as a
contractor), for the lien to attach the person must meet the additional requirement
of giving written notice to the owner of the furnishing of the labor or material."
(citing S.C. Code Ann. § 29-5-40)); Shelley Constr. Co. v. Sea Garden Homes,
Inc., 287 S.C. 24, 27, 336 S.E.2d 488, 490 (Ct. App. 1985) ("If these steps are
taken, the person claiming the lien may foreclose against the property to satisfy the
debt. On the other hand, if he fails to take any one of these steps, the lien against
the property is dissolved."); Postal v. Mann, 308 S.C. 385, 387, 418 S.E.2d 322,
323 (Ct. App. 1992) ("It is well settled that parties are judicially bound by their
pleadings unless withdrawn, altered or stricken by amendment or otherwise. The
allegations, statements, or admissions contained in a pleading are conclusive as
against the pleader and a party cannot subsequently take a position contradictory
of, or inconsistent with, his pleadings and the facts which are admitted by the
pleadings are taken as true against the pleader for the purpose of the action."
(emphasis added)). Because we affirm the master's order granting foreclosure of
Carolina Comfort's mechanic's lien on the Weddle's rental property, we
additionally affirm the master's award of attorney's fees and costs to Carolina
Comfort. See Utils. Constr. Co. v. Wilson, 321 S.C. 244, 247, 468 S.E.2d 1, 2 (Ct.
App. 1996) ("S.C. Code Ann. § 29-5-10 affords a mechanic or contractor who
deals with the owner of real property a lien for labor and materials, and provides
that '[t]he costs which may arise in enforcing or defending against the lien under
this chapter, including a reasonable attorney's fee, may be recovered by the
prevailing party.'" (footnote omitted) (quoting S.C. Code Ann. § 29-5-10 (2007)));
id. ("A fair interpretation of the text of the statute convinces us that it is the
enforcement of the lien which confers the right to attorney fees . . . .").

2. The master did not err in finding Wife was a party to the underlying contract
because the Weddles admitted Carolina Comfort's allegation that the agreement
was with "the Defendants" to perform work on the property owned by Wife. See
Postal, 308 S.C. at 387, 418 S.E.2d at 323 ("It is well settled that parties are
judicially bound by their pleadings unless withdrawn, altered or stricken by
amendment or otherwise."); id. ("The allegations, statements, or admissions
contained in a pleading are conclusive as against the pleader and a party cannot
subsequently take a position contradictory of, or inconsistent with, his pleadings
and the facts which are admitted by the pleadings are taken as true against the
pleader for the purpose of the action." (emphasis added)).

3. The master did not err in finding the Weddles waived any objection to Pardee's
testimony because they failed to contemporaneously object at the time the
challenged testimony was offered. Burke v. AnMed Health, 393 S.C. 48, 54, 710
S.E.2d 84, 87 (Ct. App. 2011) ("A contemporaneous objection is typically required
to preserve issues for appellate review."); Campbell v. Jordan, 382 S.C. 445, 453,
675 S.E.2d 801, 805 (Ct. App. 2009) ("Further, if a party deems testimony to be
irrelevant or prejudicial, an objection should be interposed when the testimony is
initially offered."); id. (finding a party waived her right to argue an error on appeal
because she failed to timely object when the testimony was initially offered).

4. The master did not err in finding the Weddles failed to sufficiently plead a
counterclaim relating to an alleged extended warranty because they neither raised
the claim in their pleadings, nor moved to amend their pleadings to include the
counterclaim. See Rule 13(a), SCRCP ("A pleading shall state as a counterclaim
any claim which at the time of serving the pleading the pleader has against any
opposing party, if it arises out of the transaction or occurrence that is the subject
matter of the opposing party's claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire jurisdiction.").

AFFIRMED.

LOCKEMY, C.J., and SHORT and MCDONALD, JJ., concur.