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Con Co v. Wilson Acres Apartments

Filed: April 6, 1982.

CON CO, INC.
v.
WILSON ACRES APARTMENTS, LTD., MCGOWAN BUILDERS, INC., KENNEDY MORTGAGE COMPANY, FORD MCGOWAN, SR., AND FORD MCGOWAN, JR.



Appeal by plaintiff from Rouse, Judge. Judgments entered 23 December 1980 and 16 February 1981 in Superior Court, Pitt County. Heard in the Court of Appeals 19 November 1981.

Webb, Judge. Judges Vaughn and Hill concur.

Webb

At the outset we note that this action involves multiple parties. Judge Rouse found there was no just reason for delay as to both summary judgments. The judgments are appealable pursuant to G.S. 1A-1, Rule 54(b). See Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979).

The facts which are not in dispute show that the plaintiff was a first tier subcontractor on the Wilson Acres apartment project. Article 2, Part 2 of Chapter 44A of the General Statutes provides for the perfecting of liens by subcontractors. A lien in favor of a subcontractor may arise either directly under G.S. 44A-18 and G.S. 44A-20 or by subrogation under G.S. 44A-23. If a subcontractor attempts to perfect a lien by subrogation, he is bound by any defenses available against the contractor. See Mace v. Construction Corp., 48 N.C. App. 297, 269 S.E.2d 191 (1980). In this case the contractor made an agreement with the landowner that it would not perfect a lien against the real estate. The plaintiff is bound by this agreement. It cannot perfect a lien by subrogation. Summary judgment was properly allowed as to the plaintiff's claim for a contractor's lien.

The waiver of the right to establish a lien by the prime contractor does not affect plaintiff's right to perfect a lien as a subcontractor under G.S. 44A-18 which provides:

"Upon compliance with this Article:

(1) A first tier subcontractor who furnished labor or materials at the site of the improvement shall be entitled to a lien upon funds which are owed to the contractor

with whom the first tier subcontractor dealt and which arise out of the improvement on which the first tier subcontractor worked or furnished materials.

(6) The liens granted under this section are perfected upon the giving of notice in writing to the obligor as hereinafter provided and shall be effective upon the receipt thereof by such obligor."

G.S. 44A-20 provides:

"(a) Upon receipt of the notice provided for in this Article the obligor shall be under a duty to retain any funds subject to the lien or liens under this Article up to the total amount of such liens as to which notice has been received.

(b) If, after the receipt of the notice to the obligor, the obligor shall make further payments to a contractor or subcontractor against whose interest the lien or liens are claimed, the lien shall continue upon the funds in the hands of the contractor or subcontractor who received the payment, and in addition the obligor shall be personally liable to the person or persons entitled to liens up to the amount of such ...


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