Outer Banks Contractors, Inc. v. Forbes

Court of Appeals of North Carolina

Outer Banks Contractors, Inc. v. Forbes

267 S.E.2d 63, 47 N.C. App. 371, 1980 N.C. App. LEXIS 3077

CourtCourt of Appeals of North Carolina

DecidedJune 17, 1980

DocketNo. 791DC158

StatusPublished

This text of 267 S.E.2d 63 (Outer Banks Contractors, Inc. v. Forbes) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Outer Banks Contractors, Inc. v. Forbes, 267 S.E.2d 63, 47 N.C. App. 371, 1980 N.C. App. LEXIS 3077 (N.C. Ct. App. 1980).

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Opinion

WEBB, Judge.

It appears from the notice of claim of lien filed in the case sub judice that the plaintiff is attempting to enforce a lien pursuant to N.C. General Statute Chap. 44A, Art. 2, Part 2. The lien notice states that plaintiff is a first tier subcontractor and follows the form prescribed by G.S. 44A-19 for filing a lien as a subcontractor. The complaint alleges a claim for a lien as a prime contractor under G.S. 44A, Art. 2, Part 1. An order was then consented to by plaintiffs attorney which recited that plaintiff was a subcontractor and Owens was the prime contrac[373]*373tor who would be responsible for the labor and materials supplied by the subcontractor. This is a judicial finding binding on the parties. We hold that the plaintiff cannot establish a lien as a prime contractor when its own notice of claim of lien and the judicial findings to which it consented establish it is a subcontractor. The claim for a lien was properly dismissed.

In addition to the lien claim, the plaintiff, in its complaint, asked for a money judgment. In answer to interrogatories, the plaintiff stated it had made a contract with defendant Forbes to furnish labor and materials. In her affidavit, defendant Forbes denied she made a contract with plaintiff. We hold this shows a genuine issue which should have been submitted to the jury.

On the record before us, we hold that plaintiff is entitled to try its claim for a money judgment against the defendant Forbes, but it is not entitled to enforce its lien as a subcontractor.

We note that plaintiff made no assignment of error to the order striking its amended complaint. The exception to this order is deemed abandoned. Rule 10(c), N.C. Rules App. Proc.

Affirmed in part; reversed and remanded in part.

Judges Arnold and Wells concur.

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WEBB, Judge.

It appears from the notice of claim of lien filed in the case sub judice that the plaintiff is attempting to enforce a lien pursuant to N.C. General Statute Chap. 44A, Art. 2, Part 2. The lien notice states that plaintiff is a first tier subcontractor and follows the form prescribed by G.S. 44A-19 for filing a lien as a subcontractor. The complaint alleges a claim for a lien as a prime contractor under G.S. 44A, Art. 2, Part 1. An order was then consented to by plaintiffs attorney which recited that plaintiff was a subcontractor and Owens was the prime contrac[373]*373tor who would be responsible for the labor and materials supplied by the subcontractor. This is a judicial finding binding on the parties. We hold that the plaintiff cannot establish a lien as a prime contractor when its own notice of claim of lien and the judicial findings to which it consented establish it is a subcontractor. The claim for a lien was properly dismissed.

In addition to the lien claim, the plaintiff, in its complaint, asked for a money judgment. In answer to interrogatories, the plaintiff stated it had made a contract with defendant Forbes to furnish labor and materials. In her affidavit, defendant Forbes denied she made a contract with plaintiff. We hold this shows a genuine issue which should have been submitted to the jury.

On the record before us, we hold that plaintiff is entitled to try its claim for a money judgment against the defendant Forbes, but it is not entitled to enforce its lien as a subcontractor.

We note that plaintiff made no assignment of error to the order striking its amended complaint. The exception to this order is deemed abandoned. Rule 10(c), N.C. Rules App. Proc.

Affirmed in part; reversed and remanded in part.

Judges Arnold and Wells concur.

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Bluebook (online)

267 S.E.2d 63, 47 N.C. App. 371, 1980 N.C. App. LEXIS 3077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/outer-banks-contractors-inc-v-forbes-ncctapp-1980.