Reid v. Carr

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

Shawn M. Reid
d/b/a Bolt Electric, Appellant,

v.

Michael J.
Carr, Andrea K. Carr, and Kessler Construction Company, Respondents.

Appeal from Beaufort County

Curtis L. Coltrane, Master-In-Equity

Unpublished Opinion No. 2008-UP-541

Submitted September 2, 2008 – Filed
September 17, 2008   

AFFIRMED

Ehrick K. Haight, Jr., of Hilton Head Island, for Appellant.

Terry A. Finger and Tyler A. Melnick, both of Hilton Head Island,
for Respondents.

PER CURIAM:  Shawn M. Reid appeals the master’s grant
of summary judgment in favor of the Carrs based on the failure to serve a
mechanic’s lien.  We affirm.[1]

FACTS
AND PROCEDURAL HISTORY

Reid
performed electrical work on a home being built by the Carrs.    Reid filed a
mechanic’s lien against the property.  Reid attempted to serve the Carrs by
leaving the notice and certificate of lien with Carlos Garcia, a painting
subcontractor present on the property.  Reid had the Sheriff’s Office in Oakland County, Michigan attempt to serve the Carrs at their residence in that state.  When
the Sheriff’s Office was unable to serve the Carrs, Reid filed affidavits of
non-service approximately 109 days after the last date of work on the subject
property. 

The
master granted the Carr’s motion for summary judgment for lack of effective
service under S.C. Code Ann. § 29-5-90, the mechanic’s lien statute.  Reid
appeals.

STANDARD
OF REVIEW

Reid
argues that the master erred in granting summary judgment to the Carrs, because
there were genuine issues of material fact regarding service of the mechanic’s
lien.  However, the record shows that the facts are essentially undisputed. 
The question presented to the master was whether the facts set forth satisfied
the service requirements found in the mechanic’s lien statute.   “When an
appeal involves stipulated or undisputed facts, an appellate court is free to
review whether the trial court properly applied the law to those facts.”  Duke
Power Co. v. Laurens Elec. Co-op., Inc., 344 S.C. 101, 104, 543 S.E.2d 560,
561 (Ct. App. 2000).  

LAW/ANALYSIS

Reid’s
first argument involves service of the notice and certificate of lien on
Garcia.  Reid contends that Garcia, a laborer of a subcontractor, constitutes a
“person in possession” as contemplated by the mechanic’s lien statute.  The
statute provides that a mechanic’s lien shall
be dissolved unless the person desiring the lien serves the owner or “person in
possession” of the property with a notice and certificate of lien.  S.C. Code
Ann. § 29-5-90 (2007).  The only
case touching on this issue is Stovall Bldg. Supplies, Inc. v. Mottet,
305 S.C. 28, 406 S.E.2d 176 (Ct. App. 1990).  In Stovall, the court
determined that service of a mechanic’s lien on a subdivision security guard
did not constitute service on a “person in possession” as contemplated by the
statute.  Id. at 33, 406 S.E.2d at 179.  The court stated “[t]he
security guard was not a responsible person living in the [owner’s] home.”  Id.  Likewise, Garcia, as the employee of a subcontractor, was not a responsible
person living in the home.  Therefore, service on Garcia would not constitute
service on a “person in possession” and would not be sufficient to preserve the
mechanic’s lien.

Reid
further argues the affidavits of non-service that were filed outside the ninety-day
statutory period are valid to preserve the lien.  The statute sets a ninety-day
time limit after the last date of labor or furnishing of materials to
accomplish service.  S.C. Code Ann. §
29-5-90 (2007).  The statute contemplates that service may not always be
possible.  Id.  “[I]n the event neither the owner nor the person in
possession can be located after diligent search, and this fact is verified by
affidavit of the sheriff or his deputy, the lien may be preserved by filing the
statement together with the affidavit.”  Id.  The statute does not however provide for an
extension of time for attempted service or the subsequent filing of affidavits
of non-service.  To read a vague grace period into the statute would go against
the general policy of interpreting statutes according to their plain meaning.  See Mun. Ass’n of S.C. v. AT&T Commc’ns of S. States, Inc., 361 S.C.
576, 580, 606 S.E.2d 468, 470 (2004) (“[T]he words of the statute must be given their plain and
ordinary meaning without resorting to subtle or forced construction to limit or
expand the statute's operation.”).  Accordingly, the master correctly applied
the statute under these circumstances to conclude that the filing of affidavits
of non-service outside the ninety-day time limit did not preserve the lien.

Finally,
Reid argues that service on the Kessler Construction Company  as general
contractors satisfied the requirement of service on the owners.  Nothing in the
statute provides for such substituted service, and the relevant affidavit of
service only indicates service on Kessler Construction as a party, not as agent
for the Carrs.

Based on all of the foregoing, the ruling of the master is

AFFIRMED.

ANDERSON, WILLIAMS,
and KONDUROS, JJ., concur.

[1]        We decide this case without oral argument pursuant
to Rule 215, SCACR.