Green v. First Calvary Baptist

PER CURIAM: DK Construction Company of North Carolina sought foreclosure
of a valid mechanic’s lien against First Calvary Bap

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

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Curley Wilson Green,       
Plaintiff,

v.

First Calvary Baptist Church of Rock Hill,       
Defendant and Third party Plaintiff,

v.

D.K. Construction Company of North Carolina, Inc.,       
Third Party Defendant,

Of whom First Calvary Baptist Church of Rock Hill is the,       
Appellant,

And D.K. Construction Company of North Carolina, Inc., is the,       
Respondent.

Appeal From York County

John Buford Grier, Master-In-Equity

Unpublished Opinion No. 
2004-UP-544

Submitted October 1, 2004 – Filed October
26, 2004

AFFIRMED

William E. Whitney, Jr., of Union, for Appellant.

Wesley Dickinson Peel, of Columbia, for Respondent.

PER CURIAM:  DK Construction Company (DK)
of North Carolina sought foreclosure of a valid mechanic’s lien against First
Calvary Baptist Church (First Calvary).  First Calvary raised defenses related
to setoff and indefiniteness.  The master-in-equity rejected the defenses and
foreclosed the mechanic’s lien in favor of DK Construction.  First Calvary argues
the trial court erred in foreclosing the mechanic’s lien.  We affirm.

 FACTS/PROCEDURAL
HISTORY

This action arises out of the
construction of the First Calvary Baptist Church in Rock Hill, South Carolina. 
The parties settled all claims with the first party Plaintiff Curley Wilson
Green prior to trial. 

First Calvary contracted with R. Jones
Construction Company, Inc. a/k/a Quad-State Group (Jones) to design and build
a new church building for the parish.  Jones encountered difficulties in completing
the construction project due to financial problems.  The project was already
behind the original schedule by the time Jones, as general contractor, contracted
with subcontractor DK Construction to provide all labor and materials necessary
to finish the project under Jones’ supervision.  All the parties were aware
of the project delays at the time that DK began work on the project.  No evidence
indicated that First Calvary intended to assess delay damages against the
contractors at the time DK entered the project. 

DK contracted to complete the work for Jones
for the remaining contract balance, including the retainages held by First
Calvary.  Moreover, by agreement of DK, Jones, and First Calvary, DK would
be paid for additional work outside of the subcontract by change orders approved
by the project architect.  At the time DK subcontracted with Jones the only
work completed on the project was the foundation, slab, and plumbing work.

DK satisfactorily performed its obligation under
the contract with Jones and the project architect approved DK’s work on the
project.  DK presented its final bill to First Calvary through Jones in the
amount of $52,436.00.  The amount of the final bill consisted of $12,886.00
in change orders and $39,550.00 in work related to the original contract. 
Moreover, the project architect approved DK’s final request for payment in
the amount of $52,436.00.  Neither Jones nor DK received the final payment
due from First Calvary.  First Calvary concedes that it owes DK the $12,886.00
from the final change order.  First Calvary also holds $39,550.00 related
to the original contract. 

First Calvary asserted at trial the defenses
of setoff and delay to DK’s mechanic’s lien.  The court found that based upon
the testimony, DK agreed to perform work for Jones for the remaining contract
balance including any retainages held by First Calvary and that the retainages
were owed to DK under that contract.  The trial court also concluded as a
matter of law that DK filed and perfected a mechanic’s lien pursuant to section
29-5-20 of the South Carolina Code (Supp. 2003) and is entitled to foreclose
on the lien in the amount of $52,436.00 plus interest, costs, and attorney’s
fees.  The court rejected the defenses of setoff and delay.  First Calvary
appeals only the amount foreclosed under the mechanic’s lien [1] .  We affirm.     

STANDARD OF REVIEW

An action to foreclose a mechanic’s
lien is an action at law in South Carolina.  Keeney’s Metal Roofing, Inc.
v. Palmieri, 345 S.C. 550, 553, 548 S.E.2d 900, 901 (Ct. App. 2001). 
In an action at law, tried without a jury, the judge’s findings will not be
disturbed by the appellate court unless they are without evidentiary support. 
King v. PYA/Monarch, Inc., 317 S.C. 385, 388, 453 S.E.2d 885,
888 (1995).  The judge’s findings are equivalent to those of a jury in an
action at law.  Id. at 389, 453 S.E.2d at 888. 

LAW/ANALYSIS

The issue before this court is whether
the trial court erred in foreclosing DK’s mechanic’s lien.  The South Carolina
Mechanic’s Lien Statute provides that “[e]very laborer, mechanic, subcontractor,
or person furnishing material for the improvement of real estate when the
improvement has been authorized by the owner has a lien thereon, subject .
. . to the value of the labor or material so furnished . . . .”  S.C. Code
Ann. § 29-5-20 (Supp. 2003).  Section 29-5-20 protects the mechanic or supplier
who deals with a general contractor or some person other than the owner or
his agent.  T.W. Morton Builders, Inc. v. von Buedingen, 316 S.C. 388,
400, 450 S.E.2d 87, 94 (Ct. App. 1994) (A manifest purpose of Section 29-5-20
is “the protection of one not a party to a contract with the owner, who furnishes
labor or material in the improvement of the owner’s property, by giving him
a lien for such labor or material.”). 

First Calvary’s main argument is that
the trial court erred in foreclosing the mechanic’s lien since the lien was
not related to work performed or materials provided by DK and, therefore,
outside the definition provided in Section 29-5-20.  We find this argument
to be without merit.  There is ample evidence in the record to support the
court’s decision that the amount of the lien related directly to DK’s work
performed and materials furnished for the benefit of First Calvary. 

Jones brought DK into the project to furnish
all labor and materials necessary for the completion of the church.  DK performed
its obligation under the contract with Jones and the project architect approved
DK’s work on the project.  First Calvary admits holding the contract balance
due to Jones, which, in turn, is owed to DK pursuant to DK’s subcontract. 
We find that the master-in-equity correctly foreclosed the lien in the amount
of $52,436.00. [2]

AFFIRMED.    

STILWELL, BEATTY, AND SHORT, JJ.,
concur.

[1] First Calvary does not appeal any issues relating to their defenses
of setoff or the award of attorney’s fees, interest, and costs.

[2] In the Appellant’s Brief, First Calvary also contends that the trial
court erred in awarding damages on the basis of quantum meruit. 
Since we held that the trial court properly foreclosed the mechanic’s lien
of DK for the full amount sought, we need not address this issue.  Moreover,
the trial court did not award damages based on quantum meruit;
the sole basis of recovery for DK was limited to foreclosure of the mechanic’s
lien.  Therefore, the issue is manifestly without merit.  Rule 220(b)(2),
SCACR.