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
CMI Contracting, Inc.,
Respondent,
v.
Little River Lodging, LLC and Construction Design Associates,
Inc., Defendants,
of whom Little River Lodging, LLC, is,
Appellant.
Appeal From Horry
County
J. Stanton Cross,
Jr., Master-In-Equity
Unpublished Opinion
No. 2004-UP-421
Submitted June 8,
2004 Filed June 30, 2004
AFFIRMED
W. W. DesChamps, Jr., of Myrtle Beach, for Appellant.
Reese R. Boyd III, of Myrtle Beach, for Respondent.
PER CURIAM: Little River
Lodging, LLC, appeals the trial courts order granting judgment in favor of
CMI Contracting, Inc., on a mechanics lien in the amount of $73,620.75.
The order also awarded CMI $18,055.95 in prejudgment interest and $8,533.70
in attorneys fees. As an alternative but superceded ground for recovery,
the trial court found Little River liable to CMI for the amount of the alleged
mechanics lien on the basis of CMIs unjust enrichment claim. We affirm.
[1]
FACTS
Little River is the
owner of a parcel of real estate situated in Horry County, South Carolina
upon which it sought to construct a commercial hotel development. Through
its owner and operator, Bhupendra Patel, Little River contacted co-defendant
Construction Design Associates, Inc., (CDA), a general contractor, in February
2000 and asked CDA to begin working on the project. CDA and Little River
understood the first phase of this project to include clearing the parcel
and filling some wetlands on the property. Due to a longstanding professional
relationship between CDA and Little River, CDA did not initially require a
written agreement with Little River.
Subsequent to
these discussions concerning the property, CDA entered a subcontract agreement
with CMI for the clearing and wetland work to be performed on the property.
The subcontract agreement included a cost estimate from CMI of approximately
$118,000. CMI began performing the agreed upon work in early March and completed
the work on April 11, 2000. CDA and Patel visited the work site during the
months CMI performed the work specified in the subcontract agreement.
Following the
works completion, CMI submitted invoices to CDA for payment totaling $123,621.
CDA then submitted $50,000 in payment to CMI after receiving a check for the
same amount and purpose from Patel of Little River. This was the only payment
CMI received for the work. Although an internal CDA document recognized a
$61,259 balance due CMI on the subcontracting work, Patel later claimed he
understood the $50,000 payment to be the complete amount due CMI for the project.
Little River and CDA
did not memorialize their general contracting agreement for developing the
property until October 2000. The contract states work shall not commence
until all of the following are accomplished: 1) financing is in place and
designated for the project; 2) a building permit is obtained; and 3) written
notice to proceed is received by CDA. Because construction financing could
not be obtained, CDA never commenced contract performance. No hotel or other
structure exists on the property today.
In the meantime,
CMI served a summons, complaint, and notice and certificate of a mechanics
lien on the property on Little River on July 18, 2000 and to CDA on August
11, 2000. In addition to the mechanics lien, CMI asserted a claim against
Little River for unjust enrichment. The trial court awarded CMI a judgment
of $100,210.40, the lien plus interest and attorneys fees, against Little
River. The court order also stated CMI was entitled to $73,620.75 on its
claim for unjust enrichment, but explained this award was superceded by CMIs
judgment on its mechanics lien. This appeal followed.
STANDARD OF REVIEW
A proceeding to enforce a mechanics lien is
an action at law. Seckinger v. Vessel Excalibur, 326 S.C. 382, 386,
483 S.E.2d 775, 777 (Ct. App. 1997). In an action at law, on appeal of a
case tried without a jury, the findings of fact of the judge will not be disturbed
upon appeal unless found to be without evidence which reasonably supports
the judges findings. Townes Assocs. v. City of Greenville, 266 S.C.
81, 86, 221 S.E.2d 773, 775 (1976).
LAW / ANALYSIS
I. Subject Matter Jurisdiction
Little River argues the mechanics lien
foreclosure should be reversed because the trial court lacked subject matter
jurisdiction over the matter due to untimely service. We disagree.
South Carolina Code section 29-5-90 provides,
in pertinent part:
[A] lien shall be dissolved unless the person desiring
to avail himself thereof, within ninety days after he ceases to labor on or
furnish labor or material for such building or structure, serves upon the
owner . . . a statement of a just true account of the amount due him . . .
together with a description of the property intended to be covered by the
lien . . . with the name of the owner of the property, if known.
S.C. Code Ann. § 29-5-90 (Supp. 2003). [b1] It is undisputed that CMI served this required
notice and certificate of a mechanics lien on Little River after the statutorily
mandated ninety-day period. However, when questioned at trial regarding the
sufficiency of the liens service, the following exchange occurred between
the trial court and counsel for Little River:
THE COURT: Is there an issue about the technical aspects
of the mechanics lien such as the notice, the certificate was given, the
timing of the foreclosure of the mechanics lien? All the technical aspects,
is that an issue?
LITTLE RIVER: I think the mechanics lien was served and
everything.
THE COURT: I dont have the roll up here.
LITTLE RIVER: Ive got some other points to argue, but
its not regarding service or whether the mechanics lien was properly prepared.
The sufficiency of the liens service was never again discussed
or raised before the trial court.
While Little River certainly could have
argued the timeliness of the mechanics liens service as valid grounds to
dismiss the initial foreclosure action, it failed to do so. Generally, an
issue cannot be raised for the first time on appeal, but must have been raised
to and ruled upon by the trial judge to be preserved for appellate review.
Wilder v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998). However,
Little River argues the issue of timeliness of service is one of subject matter
jurisdiction and, as such, may be raised at any time, including for the first
time on appeal. See Johnson v. State, 319 S.C. 62, 64, 459
S.E.2d 840, 841 (1995) (stating issues related to subject matter jurisdiction
can be raised at any time).
Subject matter jurisdiction has been defined
as the power to hear and determine cases of the general class to which the
proceedings in question belong. McLendon v. S.C. Dept of Highways and
Pub. Transp., 313 S.C. 525, 525-26, 443 S.E.2d 539, 540 (1994). In McLendon,
the supreme court determined that a statute of limitations defense does not
raise a question of subject matter jurisdiction. Id. at 525-26, 443
S.E.2d at 540. The supreme court extended this holding to the time limits
set by statutes of creation. [2] Simpson v. Sanders, 314
S.C. 413, 415 n.1, 445 S.E.2d 93, 94 n.1 (1994). As such, issues of timeliness
of service, even when they arise from the mandatory terms of statutes of creation,
do not give rise to concerns of subject matter jurisdiction.
Thus, as Little River failed to raise to the trial court
the issue of whether the mechanics lien in this case was timely served, this
issue is not properly preserved for our review.
II. Absence of a Structure on the Building Site
Little River contends the trial court
erred in enforcing the mechanics lien because the absence of a building or
structure on the tract of land in question precludes attachment of the lien
to the land. We disagree.
The South Carolina mechanics lien statute provides:
A person to whom a debt is due for labor performed . .
. in the erection, alteration, or repair of a building or structure upon
real estate . . . by virtue of an agreement with, or by consent of, the owner
of the building or structure, or a person having authority from, or rightfully
acting for, the owner in procuring or furnishing the labor or materials shall
have a lien upon the building or structure and upon the interest of the owner
of the building or structure in the lot of land upon which it is situated
to secure the payment of the debt due to him.
. . .
[L]abor performed . . . includes . . . the work making
the real estate suitable as a site for the building or structure. The work
is considered to include, but not be limited to, the grading, bulldozing,
leveling, excavating, and filling of land . . .
S.C. Code Ann. § 29-5-10 (Supp. 2003).
Little River relies on Clo-Car Trucking Co.,
Inc. v. Clifflure Estates of South Carolina, 282 S.C. 573, 320 S.E.2d
51 (Ct. App. 1984), for the proposition that if no structure is erected on
a tract of land, a mechanics lien, by the plain language of the statute,
cannot attach to the land. In Clo-Car Trucking, the contractor, pursuant
to its contract with the previous owner, cleared and graded land for the construction
of streets and roads. Neither the contractor nor anyone else did anything
more to the land. This court held that, under section 29-5-10, a mechanics
lien cannot attach to land or to an owners interest in land where the work
done is unconnected with and forms no integral part of the erection, alteration,
or repair of either a building or a structure of some description. Clo-Car
Trucking Co., Inc., 282 S.C. at 578, 320 S.E.2d at 54.
We find A.V.A. Construction Corporation v. Santee Wando
Construction, 303 S.C. 333, 400 S.E.2d 498 (Ct. App. 1990), more instructive
on this issue. In A.V.A. Construction, the contractor had contracted
to construct the tennis court, provide drainage facilities, build roads with
curbs, and clear and grade land in anticipation of development of a subdivision.
At the time the action was commenced, no houses had been constructed on any
of the lots. Noting the General Assemblys recent liberalization of the mechanics
lien statute, this court found the mechanics lien attached to the land because
the work was provided in order to make [the land] usable for building structures,
notwithstanding the fact that the buildings were yet to come. [3] Id. at 335, 400 S.E.2d at 500. In
reaching this decision, this court expressly distinguished Clo-Car Trucking
on the factual basis that, in the earlier case, no allegation was made that
the clearing and grading were done in connection with the construction or
erection of any building or structure. Id.
We find the facts before this court more analogous
to those in A.V.A. Construction. While no structure currently exists
on Little Rivers property, the work performed by CMI was clearly performed
in anticipation of the construction of a hotel and was provided to Little
River in order to make the plot suitable for such. We find the statute sufficiently
broad to encompass labor essential to the owners development of his property,
regardless of the subsequent progress of that development.
III. Owner Consent
Little River argues the trial court erred
in enforcing the mechanics lien because there was no agreement with or consent
from the owner of the land, Little River, for CMI to perform the labor on
the land. We disagree.
Little River bases its argument on the language
of the mechanics lien statute which provides:
A person to whom a debt is due for labor performed . .
. in the erection, alteration, or repair of a building or structure upon real
estate . . . by virtue of an agreement with, or by consent of, the owner
of the building or structure, or a person having authority from, or rightfully
acting for, the owner in procuring or furnishing the labor or materials
shall have a lien upon the building or structure and upon the interest of
the owner of the building or structure in the lot of land upon which it is
situated to secure the payment of the debt due to him.
S.C. Code Ann. § 29-5-10 (Supp. 2003) (emphasis added).
Little River contends, because no contract existed directly between it and
CMI, no consent was given to CMI to perform the labor on the land.
The consent required by section 29-5-10 is something
more than a mere acquiescence in a state of things already in existence.
It implies an agreement to that which, but for the consent, could not exist,
and which the party has a right to forbid. F & D Elec. Contractors,
Inc. v. Powder Coaters, Inc., 350 S.C. 454, 459-60, 567 S.E.2d 842, 844
(2002). This consent does not require an express contract, but must indicate
an agreement that the owner of . . . the land shall be, or may be, liable
for the materials or labor. F & D Elec. Contractors, 350 S.C.
at 460, 567 S.E.2d at 845 (quoting St. Catherines Church Corp. of Riverside
v. Technical Planning Assocs., 9 Conn.App. 682, 520 A.2d 1298 (Conn. Ct.
App. 1987)).
F & D Elec. Contractors involved the
issue of owner consent regarding a mechanics lien in a landlord-tenant context.
In such a context, the landlord/owner or his agent must directly give the
tenant or materialman express or implied consent acknowledging his liability
for the work. The reasoning behind this requirement is manifest in the landlord-tenant
relationship. A landlord/owner should not be liable for repairs or improvements
undertaken at the sheer caprice of a tenant, even if the landlord is aware
of the improvements or grants the tenant general permission to undertake them.
We find the situation before us now, however, quite different from that arising
within the landlord-tenant context.
The labor performed by CMI was commenced and
completed at the sole behest of Little River, through its general contractor
CDA. But for the consent and impetus of Little River, the labor on the plot
of land would not exist. The labor was performed for the sole benefit of
Little River. Its owner and operator, Patel, visited the sight and expressed
his satisfaction with the work. These visits constitute more than mere acquiescence
of a particular state of the land. Rather they are evidence that the work
commenced under the direction of Little River. The evidence in the record
demonstrates the understanding between Little River and CDA, who shared a
longstanding professional relationship, that the work being performed on the
site by CMI was within the agreed upon scope of the essential first stage
of the propertys development. For these reasons, we conclude the work performed
by CMI on the hotel sight was commenced by consent of Little River. Thus,
the enforcement of the lien was proper.
IV. Monies due CDA from Little River
Little River argues that because no monies were due CDA at the
time CMI served its notice and certificate of mechanics lien, Little River
owes CMI nothing on the lien. As this issue was not conclusively raised at
trial or ruled upon by the trial court in its final order, it is not preserved
for our review. See Wilder Corp. v. Wilke, 330 S.C. 71, 76,
497 S.E.2d 731, 733 (1998) (It is axiomatic that an issue cannot be raised
for the first time on appeal, but must have been raised to and ruled upon
by the trial judge to be preserved for appellate review.).
V. Award of in personam judgment
Little River argues
the trial court erred in awarding CMI a monetary in personam judgment against
Little River without ordering the sale of the property to pay the mechanics
lien indebtedness. It asserts this issue is one of subject matter jurisdiction.
We disagree with this assertion. As stated above, subject matter jurisdiction
concerns the power to hear and determine cases of the general class to which
the proceedings in question belong. McLendon v. South Carolina Department
of Highways and Public Transportation, 313 S.C. 525, 525-26, 443 S.E.2d
539, 540 (1994).
There is a wide difference between a want of jurisdiction
in which case the court has no power to adjudicate at all, and a mistake in
the exercise of undoubted jurisdiction in which case the action of the trial
court is not void although it may be subject to direct attack on appeal.
A judgment will not be vacated for a mere irregularity which does not affect
the justice of the case, and of which the party could have availed himself,
but did not do so until judgment was rendered against him.
Thomas & Howard Co. v.
T.W. Graham and Co., 318 S.C. 286, 291, 457 S.E.2d 340, 343 (1995) (citations
omitted).
When a court acts with proper subject matter jurisdiction
but takes some action outside of its authority, the party against whom the
act is done must object and directly appeal. Coon v. Coon, 356 S.C.
342, 348, 588 S.E.2d 624, 627 (Ct. App. 2003).
Here, the trial court certainly had the power to hear and
determine mechanics lien cases. Its failure to order the sale of the property
involved is, at the most, a mistake in the exercise of its undoubted jurisdiction.
As Little River failed to raise this omission to the trial court in a post-trial
motion, the issue is not properly before this court. See Padgett
v. Mercado, 341 S.C. 229, 233, 533 S.E.2d 339, 341 (Ct. App. 2000) (stating
a post-trial motion must be made where there are errors or inconsistencies
in the trial courts order).
VI.
Amount of attorneys fees
Little River argues the trial court erred in its award
of attorneys fees to CMI as the court failed to make specific findings of
fact on the record for each of the six factors necessary for consideration
in determining such an award. Little River, however, failed to raise to the
trial court its concern over a lack of consideration of these factors in the
form of a motion to alter or amend the judgment pursuant to Rule 59, SCRCP.
Accordingly, this issue is not properly before this court. See Wilder
Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (It is axiomatic
that an issue cannot be raised for the first time on appeal, but must have
been raised to and ruled upon by the trial judge to be preserved for appellate
review.); Baker v. Wolfe, 333 S.C. 605, 614, 510 S.E.2d 726, 731 (Ct.
App. 1998) (noting where record did not indicate appellant objected to the
reasonableness of the hours or fees, either at the hearing or by way of a
motion to reconsider, the issue was not properly before the court). Furthermore,
because the mechanics lien was proper, we find the trial court properly granted
CMI attorneys fees.
VII. Unjust Enrichment
Because we conclude the mechanics lien
was properly enforced against Little River, we need not address Little Rivers
exceptions to the trial courts ruling on CMIs unjust enrichment claim.
See Hodge v. First Fed. Sav. & Loan Assn, 267 S.C. 270,
275, 227 S.E.2d 310, 312 (1976) (stating that because the appellant had failed
to establish error in the enforcement of the mechanics lien, the personal
judgment premised upon the contingency of the invalidity of the lien was academic).
CONCLUSION
For the foregoing reasons, the order of the trial court
is
AFFIRMED.
ANDERSON, HUFF, and KITTREDGE, JJ., concur.