{ "id": 8546935, "name": "BEACH AND ADAMS BUILDERS, INC. v. THE NORTHWESTERN BANK, a North Carolina Corporation; and C. BANKS FINGER, as TRUSTEE for THE NORTHWESTERN BANK", "name_abbreviation": "Beach & Adams Builders, Inc. v. Northwestern Bank", "decision_date": "1975-12-17", "docket_number": "No. 7524SC545", "first_page": "80", "last_page": "85", "citations": [ { "type": "official", "cite": "28 N.C. App. 80" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "207 S.E. 2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "22 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11313409 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/22/0729-01" ] }, { "cite": "123 N.Y.S. 319", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 5617504 ], "weight": 2, "year": 1910, "pin_cites": [ { "page": "320" }, { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/nys/123/0319-01" ] }, { "cite": "138 App. Div. 566", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2513233 ], "year": 1910, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/ad/138/0566-01" ] }, { "cite": "218 S.E. 2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568393 ], "year": 1975, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0354-01" ] } ], "analysis": { "cardinality": 508, "char_count": 11109, "ocr_confidence": 0.57, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.6033510061783525 }, "sha256": "b797b32c69f844ee7cd4b3798d17589aa5f6135828513b3a767290d6f50a4123", "simhash": "1:53c26f612669291d", "word_count": 1878 }, "last_updated": "2023-07-14T22:58:46.500479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Martin and Clark concur." ], "parties": [ "BEACH AND ADAMS BUILDERS, INC. v. THE NORTHWESTERN BANK, a North Carolina Corporation; and C. BANKS FINGER, as TRUSTEE for THE NORTHWESTERN BANK" ], "opinions": [ { "text": "MORRIS, Judge.\nPlaintiff contends that the trial court erred in finding that plaintiff had failed timely to commence its action to enforce its Claim of Lien and that the late commencement discharged the lien of record. Plaintiff argues that the entry of the 16 November 1972 date in the Claim of Lien was a \u201cclerical error\u201d and \u201c. . . it should be allowed to show, in a trial on the merits, that the actual date of last furnishing was a date other than that set forth in the Claim of Lien.\u201d G.S. 44A-16(3) provides, inter alia, that any lien may be discharged for . . failure to enforce the lien within the time prescribed in this Article.\u201d G.S. 44A-13 provides that an action to enforce the lien may be instituted in any county in which the lien is filed but \u201cno such action may be commenced later than 180 days after the last furnishing of labor or materials at the site of the improvement by the person claiming the lien.\u201d The law in this general area recently has been re-examined by our State Supreme Court in Canady v. Creech, 288 N.C. 354, 356, 218 S.E. 2d 383 (1975), wherein the Court held-that when the date of first furnishing of labor and material listed in a Claim of Lien contains an \u201c \u2018. . . obvious clerical error which could not mislead any interested party . . .\u2019 \u201d the actual purported date of first furnishing should be given effect and the purportedly incorrect listed date shown on the face of the claim should be disregarded. (Emphasis supplied.) (Citation omitted.) Justice Exum, writing for the Court in Canady, noted, however, that they were \u201c. . . not dealing . . . with priorities of competing liens nor with any party who relied on the claim of lien as filed.\u201d Id. at 356.\nHere, we are concerned with the priority of competing claimants. Moreover, in this situation, nothing appearing on the face of the Claim of Lien would indicate to any reader that there was an obvious error. This case involved a purported error in terms of several critical weeks prior to the time of filing the claim. It is difficult to see how any record examiner would be able to recognize any error, clerical or otherwise. For the examiner, 16 November 1972 is as realistic and logical a date as 12 December 1972. This is considerably dissimilar to the problem presented in Canady, where there were no competing claimants to the property and where the listed date of first furnishing was incongruously stated as being subsequent to the date of filing of the claim. Thus, in Canady, the Court could state that \u201c \u2018 [n] o one need misunderstand it who should become interested in the property.\u2019 \u201d (Emphasis supplied.) Id. at 357. (Citations omitted.) The Court further approvingly cites and quotes from the case of Schwartz v. Lewis, 138 App. Div. 566, 568, 123 N.Y.S. 319, 320 (Sup. Ct. App. Div. 1910), wherein a New York Court held that\u201c\u2018[i]f by any fair construction the statement can be read so as to show the date intended, and that date is substantially correct, effect will be given to the notice.\u2019 \u201d Id. at 357. Here, no \u201c \u2018fair construction\u2019 \u201d of the claim as written would indicate to the reader that the last furnishing was actually several weeks later than that actually shown on the face of the Claim of Lien.\nThus, we hold that this case is governed by our previous decision in Strickland v. Contractors, Inc., 22 N.C. App. 729, 207 S.E. 2d 399 (1974), and distinguishable from the recent Supreme Court decision in Canady. In Strickland, we wrote that \u201c. . . a lien is lost if the steps required to perfect it are not taken in the same manner and within the time prescribed.\u201d Strickland, at p. 731. We further held in Strickland that to force the examiner to go outside the record as filed would \u201c. . . impose an undue burden on the title examiner and would damage the principle of reliance upon the public record.\u201d Id. at 732. We believe these principles remain sound in North Carolina after Canady, but for those rare instances in which an examiner should be able to detect errors which on the face of the record seem incongruous, obvious, self-apparent and easily reconcilable.\nPlaintiff also contends that where the date of last furnishing is not statutorily required, the inclusion of the date \u201c. . . should be completely disregarded . . .\u201d and considered \u201cunnecessary surplusage.\u201d We disagree. Though this information is not required, it cannot be deemed mere \u201csurplusage\u201d when supplied even voluntarily. To do so \u201c. . . would do injury to the purpose of the lien statute . . .\u201d in that title examiners would, barring an obvious error, reasonably rely on the date actually furnished. Strickland, supra, at 731-732.\nPlaintiff next maintains that the trial court erred in finding that plaintiff had failed to produce any evidence or affidavits at the hearing on the motion for summary judgment which would indicate that the last date of furnishing was other than the date shown in the Claim of Lien. We find no merit in this contention. Even taking the verified complaint as an affidavit, the plaintiff merely presents a bare allegation that the date of last furnishing is different from that stated in the Claim of Lien. Moreover, barring an obvious error, easily discernible to the title examiner, the plaintiff is bound by the date stated in his Claim of Lien. G.S. 44A-12(d). Under G.S. 44A-13, the claimant has 180 days from the date of last furnishing of labor and material to commence legal action. In this case, plaintiff has simply failed to meet this statutorily mandated standard.\nThe trial court correctly found no genuine issue of material fact and we find no error in the summary judgment granted therein.\nAffirmed.\nJudges Martin and Clark concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Charles R. Brown, for plaintiff appellant.", "Holshouser and Lamm, by Charles C. Lamm, Jr., and Finger, Parks & Greene, by C. Banks Finger, for defendant appellants." ], "corrections": "", "head_matter": "BEACH AND ADAMS BUILDERS, INC. v. THE NORTHWESTERN BANK, a North Carolina Corporation; and C. BANKS FINGER, as TRUSTEE for THE NORTHWESTERN BANK\nNo. 7524SC545\n(Filed 17 December 1975)\nLaborers\u2019 and Materialmen\u2019s Liens \u00a7 7\u2014 claim of lien \u2014 date materials and labor last furnished \u2014 action to enforce \u2014 allegation of different date\nPlaintiff was bound by its statement in its claim of lien that materials and labor were last furnished on 16 November 1972 where there was nothing on the face of claim of lien to indicate that such date was erroneous; therefore, an action to enforce the claim of lien filed more than 180 days after such date came too late and the lien was discharged, notwithstanding plaintiff alleged that labor and materials were last furnished on 12 December 1972, not 16 November 1972, and the action was commenced within 180 days of 12 December 1972.\nAppeal by plaintiff from Judge Harry Martin. Summary judgment entered 21 March 1975 in Superior Court, Watauga County. Heard in the Court of Appeals 16 October 1975.\nThis is a companion case to Beach and Adams Builders, Inc. v. Felton, et al, No. 73CVS148, which is on appeal as No. 7524SC546.\nIn March 1972, plaintiff entered into an oral contract with the Feltons for the construction of a residence. Upon completion of the job and the Feltons\u2019 subsequent refusal to tender payment, the plaintiff filed and recorded a \u201cClaim of Lien\u201d on 1 February 1973 against the property and stated, inter alia, in the claim that \u201c[t]he date upon which labor or materials were last furnished upon said property by the Claimant was November 16, 1972.\u201d Later, plaintiff, on 6 June 1973, brought action No. 73CVS148 against the Feltons, the Watauga Savings and Loan Association, and the Trustee for the Savings and Loan Association, alleging priority of its \u201cClaim of Lien\u201d to the various interests of the defendants therein. Subsequently, Northwestern Bank asserted a claim against the property.\nIn this action (No. 7524SC545), filed by verified complaint on 17 December 1974, the plaintiff sought, inter alia, to have its purported \u201cClaim of Lien\u201d declared superior to a deed of trust given by the Feltons to the defendants herein on 7 November 1973 and filed and duly registered on 13 November 1973. In this complaint, the plaintiff alleged that the last date of furnishing of labor and materials was 12 December 1972, almost a month later than the date shown in its \u201cClaim of Lien.\u201d A copy of the \u201cClaim of Lien\u201d was attached to this complaint, as \u201cExhibit \u2018A\u2019,\u201d and states that the last date of furnishing of labor and material was 16 November 1972.\nDefendants answered that plaintiff\u2019s \u201cClaim of Lien,\u201d which by law cannot be amended, referred to the last date of furnishing of labor and material as 16 November 1972 and that, consequently, the complaint in case No. 73CVS148 was not filed within 180 days of the last furnishing of labor and material as required by statute. Defendants contended that in view of plaintiff\u2019s noncompliance, the lien is, and should he, discharged. Defendants then moved for a summary judgment.\nPlaintiff, responding to defendants\u2019 motion, argued that:\n\u201c. . . the assertion of November 16, 1972 as the date of last furnishing of materials or labor in the Claim of Lien was incorrect and was a mere clerical error, and further, that the date of last furnishing of materials or labor was in fact December 12, 1972, as verified by the Plaintiff, and hence the Complaint to enforce the said Claim of Lien was in fact, timely filed. The Plaintiff argued that since the Court had before it a sworn statement of the Plaintiff that the date of last furnishing of materials or labor was December 12, 1972, and not November 16, 1972, a genuine issue as to a material fact existed, and hence the action should proceed to a full trial. The Plaintiff further argued that since North Carolina General Statute Sec. 44A-12(c) does not require the date of last furnishing of materials or labor to be set forth in the Claim of Lien, the fact that Plaintiff set forth a date of last furnishing in its Claim of Lien was unnecessary surplusage and hence should be ignored; and further, to ignore the date of last furnishing in Plaintiff\u2019s Claim of Lien would not amount to an amendment thereof.\u201d\nThe trial court, however, finding no genuine issue of material fact, granted defendants\u2019 motion for summary judgment, stating that the \u201c. . . claim of lien is discharged of record by failure to enforce said lien within . . .\u201d 180 days of the last furnishing of labor and material. The trial court further noted that:\n\u201c. . . although plaintiff alleges that labor and materials were last furnished at the site on December 12, 1972, it has failed to produce any evidence or affidavits concerning same at this hearing on the motion for Summary Judgment and plaintiff\u2019s cause of action must be based upon the claim of lien filed February 1, 1973 as Chapter 44A of the General Statutes prohibits the amendment of such claim of lien, therefore plaintiff is bound by his claim of lien as to the last date (November 16, 1972) of furnishing of labor and materials upon which the claim of lien is based.\u201d From entry of summary judgment, plaintiff appeals.\nOther facts necessary for decision are cited below.\nCharles R. Brown, for plaintiff appellant.\nHolshouser and Lamm, by Charles C. Lamm, Jr., and Finger, Parks & Greene, by C. Banks Finger, for defendant appellants." }, "file_name": "0080-01", "first_page_order": 108, "last_page_order": 113 }