Pete Wall Plumbing Co. v. Sandra Anderson Builders, Inc.

708 S.E.2d 157, 210 N.C. App. 338, 2011 N.C. App. LEXIS 456
CourtCourt of Appeals of North Carolina
DecidedMarch 15, 2011
DocketCOA09-1449
StatusPublished
Cited by1 cases

This text of 708 S.E.2d 157 (Pete Wall Plumbing Co. v. Sandra Anderson Builders, Inc.) 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
Pete Wall Plumbing Co. v. Sandra Anderson Builders, Inc., 708 S.E.2d 157, 210 N.C. App. 338, 2011 N.C. App. LEXIS 456 (N.C. Ct. App. 2011).

Opinions

CALABRIA, Judge.

Pete Wall Plumbing Co., Inc. (“plaintiff’) appeals the trial court’s order (1) granting Sandra Anderson (Groat)’s motion to strike and (2) discharging plaintiff’s Notices of and Claims of Lien. We affirm in part and reverse in part.

I. Background

From January through July 2008, plaintiff delivered plumbing supplies and services for the construction of six homes, located on lots 20, 25, 25B, 34, 37, and 54B of Willow Oaks-Zone B (collectively “the properties”), to defendant Sandra Anderson Builders, Inc. (“SAB”).1 The cost of the plumbing supplies and services provided to [341]*341the properties totaled $18,576.12.2 SAB failed to pay plaintiff for these supplies and services.

At the time plaintiff provided plumbing supplies and services to the properties, they were owned by defendant Housing Authority of the City of Greensboro (“the Housing Authority”). The Housing Authority had entered into a ground lease (“the Ground Lease”) covering the properties, along with numerous additional properties, with defendant Willow Oaks Development, LLC (“Willow Oaks”). Willow Oaks, in turn, individually subleased the properties, along with many others, to SAB (“the Ground Subleases” or “the Subleases”).

Under the terms of the Ground Subleases, SAB was required to construct certain improvements on the properties; specifically, SAB was to construct single-family homes. In each of the Subleases, Willow Oaks and SAB acknowledged and agreed that SAB would be the owner of these improvements during the term of the Subleases. However, upon completion of the improvements on any lot, SAB was required to “convey the Improvements to a Homebuyer in accordance with the provisions set forth in the Master Ground Lease.” At the end of the term of the Subleases, SAB was required to surrender the properties in “as-is” condition. Additionally, the Subleases specifically stated that SAB had no right to bind any interest of Willow Oaks to any lien or other security interest. The Subleases were officially recorded with the Guilford County Register of Deeds (“the Register of Deeds”).

The construction of the homes was financed by defendant Carolina Bank. In order to secure this financing, the Housing Authority, Willow Oaks, SAB, and Carolina Bank entered into a Multiparty Agreement for each of the properties, whereby the Housing Authority and Willow Oaks agreed to subordinate their interests in the properties to Carolina Bank’s deeds of trust in SAB’s sub-leasehold interests in the properties (“the Multiparty Agreements”). Each of the Multiparty Agreements included a provision describing the duties of Carolina Bank, the Housing Authority, and Willow Oaks in the event of SAB’s default on the loan. Essentially, in the event of [342]*342default, Carolina Bank could (1) elect to assume the rights and responsibilities of SAB (i.e., become the sublessee) or (2) force the Housing Authority to choose between either (“) paying the amount due under the loan or (b) transferring to Carolina Bank, upon the payment of $15,000.00, the interests of the Housing Authority and Willow Oaks in the subject property. The Multiparty Agreements were officially recorded with the Register of Deeds.

On 3 July and 11 July 2008, plaintiff filed six “Notices of and Claims of Lien” on each of the respective properties (“the filings” or “plaintiffs filings”), which were purported to be filed “pursuant to Article 2 of Chapter 44A of the North Carolina General Statutes.” The filings were given file numbers 08 CVM 333, 345-348 and 350 by the clerk of court. Each of plaintiffs filings alleged that plaintiff had provided, pursuant to a contract with SAB, “plumbing, labor, supplies and or/materials” for the construction of real property improvements located on the properties. While there was some variation in the exact dates the labor and/or materials were provided to the individual properties, the filings all referenced labor and/or materials that were provided between January and April 2008. The specific dates for each lot, according to plaintiffs filings, were as follows:

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At the time plaintiffs filings were made, four of the properties had been conveyed by general warranty deed from the Housing Authority and SAB: (1) lot 54B was conveyed to defendant Ebony M. Washington (deed recorded 28 January 2008); (2) lot 25B was conveyed to defendants Marcus and Lakeisha Purcell (deed recorded 1 February 2008); (3) lot 25 was conveyed to defendant Andrea M. Bullard (deed recorded 10 April 2008); and (4) lot 34 was conveyed to defendant Crystal M. Young (deed recorded 17 April 2008).3 Each deed to the private owners included a clause which provided that the [343]*343Housing Authority and SAB released the conveyed property from the Ground Lease, its respective Ground Sublease, and its respective Multiparty Agreement. Additionally, the deeds stated that the Ground Lease, Ground Sublease, and Multiparty Agreement were expressly terminated “and shall have no further force or effect with respect to the property” conveyed in the deed.

On 29 August 2008, plaintiff filed a “Complaint and Action to Enforce Lien” against SAB, Sandra B. Anderson (Groat), the Housing Authority, Willow Oaks, Carolina Bank, and the private owners (collectively “defendants”). In the complaint, plaintiff alleged, inter alia, that it had valid and enforceable liens against the properties. In addition to the materialman’s liens, the complaint also sought an “equitable lien” against the interests of the Housing Authority and Willow Oaks. Furthermore, the complaint alleged that plaintiff was entitled to money damages from SAB, Sandra Anderson (Groat) individually the Housing Authority, and Willow Oaks. Plaintiff’s prayer for relief requested, inter alia, that the trial court enforce its liens and order a sale of the properties.

On 16 September 2008, defendant Sandra Anderson (Groat) filed a motion to strike pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(f). The motion to strike requested that the trial court “strike the allegations regarding Notice of and Claim of Lien and the Notices of and Claims of Lien ... as referenced in the Complaint and that the Court award her such other and further relief as to the Court may seem just and proper.” None of the other defendants joined in the motion to strike.

On 8 October 2008 and 2 February 2009, the trial court conducted separate hearings on the motion to strike. Plaintiff was represented by different counsel at the different hearings. At the first hearing, plaintiff’s counsel argued that the filings constituted valid notices of claim of lien on funds pursuant to N.C. Gen. Stat. § 44A, Article 2, Part 2. At the second hearing, plaintiff’s counsel argued that the filings constituted valid claims of lien pursuant to N.C. Gen. Stat. § 44A, Article 2, Part 1.

On 4 February 2009, the two unsold properties, lots 20 and 37, were foreclosed upon (“nd subsequently purchased) by Carolina Bank. Carolina Bank’s deeds of trust were executed and filed before plaintiff had provided labor and/or materials to these lots.

On 22 April 2009, the trial court issued an order stating that each of the filings that plaintiff sought to enforce was invalid. In addition, [344]*344the trial court’s order struck from plaintiff’s complaint a number of allegations including, inter alia, each assertion that plaintiff had a valid lien on the properties.

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Related

Pete Wall Plumbing Co. v. Sandra Anderson Builders, Inc.
708 S.E.2d 157 (Court of Appeals of North Carolina, 2011)

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Bluebook (online)
708 S.E.2d 157, 210 N.C. App. 338, 2011 N.C. App. LEXIS 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pete-wall-plumbing-co-v-sandra-anderson-builders-inc-ncctapp-2011.