{ "id": 2538925, "name": "ELECTRIC SUPPLY CO. OF DURHAM, INC. v. SWAIN ELECTRICAL CO., INC., DAVIDSON AND JONES CONSTRUCTION COMPANY, and WINSTONS VENTURE I, a North Carolina Partnership", "name_abbreviation": "Electric Supply Co. of Durham, Inc. v. Swain Electrical Co.", "decision_date": "1991-05-02", "docket_number": "No. 181PA90", "first_page": "651", "last_page": "668", "citations": [ { "type": "official", "cite": "328 N.C. 651" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "389 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": -1 }, { "cite": "97 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521775 ], "year": 1990, "opinion_index": -1, "case_paths": [ "/nc-app/97/0479-01" ] }, { "cite": "177 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "394" } ], "opinion_index": 0 }, { "cite": "277 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564836 ], "year": 1970, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0312-01" ] }, { "cite": "84 S.E. 513", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "168 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659765 ], "year": 1915, "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0371-01" ] }, { "cite": "97 S.E. 372", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "pin_cites": [ { "page": "374-75" } ], "opinion_index": 0 }, { "cite": "176 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656158 ], "year": 1919, "pin_cites": [ { "page": "432-33" } ], "opinion_index": 0, "case_paths": [ "/nc/176/0426-01" ] }, { "cite": "12 Wake Forest L. Rev. 283", "category": "journals:journal", "reporter": "Wake Forest L. Rev.", "year": 1976, "pin_cites": [ { "page": "376" } ], "opinion_index": 0 }, { "cite": "84 S.E. 1032", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1915, "pin_cites": [ { "page": "1035" }, { "page": "1035" } ], "opinion_index": 0 }, { "cite": "168 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662047 ], "weight": 2, "year": 1915, "pin_cites": [ { "page": "638" }, { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0632-01" ] }, { "cite": "269 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "194-95" }, { "page": "195" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 297", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550270 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "303-04" }, { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0297-01" ] }, { "cite": "294 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569025, 8569222, 8569062, 8569174, 8569119 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0382-01", "/nc/306/0382-05", "/nc/306/0382-02", "/nc/306/0382-04", "/nc/306/0382-03" ] }, { "cite": "289 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "635" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 661", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523470 ], "year": 1982, "pin_cites": [ { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0661-01" ] }, { "cite": "249 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 133", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550567 ], "year": 1978, "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0133-01" ] }, { "cite": "330 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724929, 4720873, 4726445, 4725392, 4719870 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0597-05", "/nc/313/0597-02", "/nc/313/0597-01", "/nc/313/0597-03", "/nc/313/0597-04" ] }, { "cite": "324 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "629" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526522 ], "year": 1985, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0224-01" ] }, { "cite": "350 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735495 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0614-01" ] }, { "cite": "348 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735317 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0330-01" ] }, { "cite": "154 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "555" } ], "opinion_index": 0 }, { "cite": "270 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567865 ], "year": 1967, "pin_cites": [ { "page": "332-33" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0323-01" ] }, { "cite": "68 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1951, "pin_cites": [ { "page": "436" } ], "opinion_index": 0 }, { "cite": "234 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624770 ], "year": 1951, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0572-01" ] }, { "cite": "240 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "372" } ], "opinion_index": 0 }, { "cite": "294 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570942 ], "year": 1978, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0090-01" ] }, { "cite": "213 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "295" } ], "opinion_index": 0 }, { "cite": "287 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561054 ], "year": 1975, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0076-01" ] }, { "cite": "259 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "298 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572766 ], "year": 1979, "pin_cites": [ { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0476-01" ] }, { "cite": "276 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "447", "parenthetical": "\"It is presumed that the legislature intended each portion to be given full effect and did not intend any provision to be mere surplusage\"" } ], "opinion_index": 0 }, { "cite": "302 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567833 ], "year": 1981, "pin_cites": [ { "page": "556", "parenthetical": "\"It is presumed that the legislature intended each portion to be given full effect and did not intend any provision to be mere surplusage\"" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0550-01" ] }, { "cite": "284 S.E.2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "461", "parenthetical": "\"statutes dealing with the same subject matter must be construed in pari materia\"" } ], "opinion_index": 0 }, { "cite": "304 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569012 ], "year": 1981, "pin_cites": [ { "page": "430-31", "parenthetical": "\"statutes dealing with the same subject matter must be construed in pari materia\"" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0427-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "275 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "405" } ], "opinion_index": 0 }, { "cite": "302 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565402 ], "year": 1981, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0274-01" ] }, { "cite": "291 S.E.2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "633", "parenthetical": "relying upon Report of the Municipal Government Study Commission to determine legislative intent behind statutory scheme recommended by the Report and subsequently adopted by the Legislature" } ], "opinion_index": 1 }, { "cite": "306 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567451 ], "year": 1982, "pin_cites": [ { "page": "83-84", "parenthetical": "relying upon Report of the Municipal Government Study Commission to determine legislative intent behind statutory scheme recommended by the Report and subsequently adopted by the Legislature" } ], "opinion_index": 1, "case_paths": [ "/nc/306/0079-01" ] }, { "cite": "231 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "opinion_index": 1 }, { "cite": "32 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549516 ], "weight": 2, "year": 1977, "opinion_index": 1, "case_paths": [ "/nc-app/32/0209-01" ] }, { "cite": "269 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 1 }, { "cite": "48 N.C. App. 297", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550270 ], "weight": 2, "year": 1980, "opinion_index": 1, "case_paths": [ "/nc-app/48/0297-01" ] }, { "cite": "154 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 1 }, { "cite": "270 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567865 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/nc/270/0323-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136-37", "parenthetical": "Meyer, J." } ], "opinion_index": 1 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209", "parenthetical": "Meyer, J." } ], "opinion_index": 1, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "275 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "409-10" } ], "opinion_index": 1 }, { "cite": "302 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565402 ], "year": 1981, "pin_cites": [ { "page": "295" } ], "opinion_index": 1, "case_paths": [ "/nc/302/0274-01" ] } ], "analysis": { "cardinality": 1231, "char_count": 39825, "ocr_confidence": 0.747, "pagerank": { "raw": 1.6406490731960227e-06, "percentile": 0.9929559599806784 }, "sha256": "46b94618130d81167cf7657c647aef6ce61a4e33593b6628f6dc8cf3e6e6c126", "simhash": "1:6f39e3672c6b11d2", "word_count": 6533 }, "last_updated": "2023-07-14T22:58:40.693084+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice WEBB joins in this dissenting opinion." ], "parties": [ "ELECTRIC SUPPLY CO. OF DURHAM, INC. v. SWAIN ELECTRICAL CO., INC., DAVIDSON AND JONES CONSTRUCTION COMPANY, and WINSTONS VENTURE I, a North Carolina Partnership" ], "opinions": [ { "text": "MEYER, Justice.\nIn 1986, defendant-appellant Winstons Venture I (hereinafter the \u201cOwner\u201d) hired defendant-appellant Davidson and Jones Construction Company (hereinafter the \u201cContractor\u201d) to build a Comfort Inn motel in Durham. The Contractor in turn hired Swain Electrical Co., Inc. (hereinafter the \u201cFirst-tier Subcontractor\u201d), to install electrical systems in the project. The First-tier Subcontractor subcontracted with the plaintiff-appellee, Electric Supply Co. of Durham, Inc. (hereinafter the \u201cSecond-tier Subcontractor\u201d), to supply electrical materials for incorporation into the construction project. See generally N.C.G.S. \u00a7 44A-17 (1989) (statutory definitions).\nBeginning 9 December 1986 and continuing through 5 May 1987, the Second-tier Subcontractor supplied materials to the First-tier Subcontractor valued at $20,718.11, for which no payment was ever received. Meanwhile, due to the First-tier Subcontractor\u2019s failure to perform its obligations with the Contractor, disputes arose between the Contractor and the First-tier Subcontractor. On 18 May 1987, having not received payment for the materials supplied, the Second-tier Subcontractor filed and served on all defendants a notice of claim of lien and a claim of lien in the amount of $20,718.11. See N.C.G.S. \u00a7\u00a7 44A-12, -19 (1989). At that same time, the First-tier Subcontractor abandoned the job. The First-tier Subcontractor was owed no money by the Contractor for work related to the Comfort Inn project. In fact, the Contractor has a claim against the First-tier Subcontractor (who at the time of trial was under the jurisdiction of the United States Bankruptcy Court) for breach of contract.\nFinally, on 2 October 1987, the plaintiff Second-tier Subcontractor commenced enforcement of its claim of lien by filing suit as required by statute within 180 days of the Contractor\u2019s last furnishing of materials. See N.C.G.S. \u00a7 44A-13 (1989). Plaintiff filed this suit claiming any and all liens to which it is entitled under N.C.G.S. ch. 44A. On that same day, the Contractor posted a bond pursuant to N.C.G.S. \u00a7 44A-16(6), thereby canceling certain of plaintiff\u2019s liens.\nThe Contractor completed the project in late 1987 and sometime thereafter received a final payment from the Owner.\nThe trial court held that the plaintiff Second-tier Subcontractor\u2019s lien was limited to amounts owed by the Contractor to the First-tier Subcontractor at the time the plaintiff filed its lien, effectively denying plaintiff any relief. The Court of Appeals reversed, holding that N.C.G.S. \u00a7 44A-23 provides first-, second-, and third-tier subcontractors a right of subrogation to the lien of the contractor who dealt with the owner, regardless of any lien on funds. We agree.\nThe matter under review is the proper statutory interpretation of portions of article 2 of chapter 44A of the North Carolina General Statutes entitled \u201cStatutory Liens on Real Property.\u201d The relevant statutory provisions at issue are N.C.G.S. \u00a7\u00a7 44A-18 and -23.\nN.C.G.S. \u00a7 44A-18 provides:\n\u00a7 44A-18. Grant of lien; subrogation; perfection.\n(2) A second 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 first tier subcontractor with whom the second tier subcontractor dealt and which arise out of the improvement on which the second tier subcontractor worked or furnished materials. A second tier subcontractor, to the extent of his lien provided in this subdivision, shall also be entitled to be subrogated to the lien of the first tier subcontractor with whom he dealt provided for in subdivision (1) and shall be entitled to perfect it by notice to the extent of his claim.\nN.C.G.S. \u00a7 44A-18(2) (1989) (emphasis added). Since nothing was owed to the First-tier Subcontractor at or after the time that the Second-tier Subcontractor filed its lien claim, it is undisputed that, on the facts here, the Second-tier Subcontractor has no lien rights upon funds under N.C.G.S. \u00a7 44A-18.\nN.C.G.S. \u00a7 44A-23 provides:\n\u00a7 44A-23. Contractor\u2019s lien; subrogation rights of subcontractor.\nA first, second or third tier subcontractor, who gives notice as provided in this Article, may, to the extent of his claim, enforce the lien of the contractor created by Part 1 of Article 2 of this Chapter. The manner of such enforcement shall be as provided by G.S. 44A-7 through 44A-16. The lien is perfected as of the time set forth in G.S. 44A-10 upon filing of claim of lien pursuant to G.S. 44A-12. Upon the filing of the notice and claim of lien and the commencement of the action, no action of the contractor shall be effective to prejudice the rights of the subcontractor without his written consent.\nN.C.G.S. \u00a7 44A-23 (1989) (emphasis added).\nI.\nThe first issue that we must decide is whether the General Assembly, in adopting N.C.G.S. \u00a7\u00a7 44A-17 to -23 in 1971, intended to carry forward in N.C.G.S. \u00a7 44A-23 the previously well-settled right of a subcontractor to a lien by subrogation to the lien rights of the contractor in the real property. Again, it is undisputed that N.C.G.S. \u00a7 44A-18 granted a new lien right to the subcontractor on certain funds and provided the subcontractor a right of subrogation to the rights of the contractor in specific circumstances. See N.C.G.S. \u00a7 44A-18(2), (3), (6) (1989). After examining the entire statutory scheme, we hold that the legislative intent was to continue the subcontractor\u2019s separate right in N.C.G.S. \u00a7 44A-23 to a lien by subrogation to the contractor\u2019s lien on the real property created by N.C.G.S. \u00a7 44A-8 (the contractor\u2019s lien).\nIn matters of statutory construction, our primary task is to ensure that the purpose of the legislature, the legislative intent, is accomplished. Hunt v. Reinsurance Facility, 302 N.C. 274, 288, 275 S.E.2d 399, 405 (1981). Legislative purpose is first ascertained from the plain words of the statute. See Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). Moreover, we are guided by the structure of the statute and certain canons of statutory construction. See, e.g., Media, Inc. v. McDowell County, 304 N.C. 427, 430-31, 284 S.E.2d 457, 461 (1981) (\u201cstatutes dealing with the same subject matter must be construed in pari materia\"); Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 556, 276 S.E.2d 443, 447 (1981) (\u201cIt is presumed that the legislature intended each portion to be given full effect and did not intend any provision to be mere surplusage\u201d). Courts also ascertain legislative intent from the policy objectives behind a statute\u2019s passage \u201cand the consequences which would follow from a construction one way or another.\u201d Campbell v. Church, 298 N.C. 476, 484, 259 S.E.2d 558, 564 (1979). \u201cA construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language.\u201d State v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291, 295 (1975). An analysis utilizing the plain language of the statute and the canons of construction must be done in a manner which harmonizes with the underlying reason and purpose of the statute. See In re Hardy, 294 N.C. 90, 96, 240 S.E.2d 367, 372 (1978).\nWhen, after analyzing the text, structure, and policy of the statute, we are still in doubt as to legislative intent, we also examine the history of the legislation in question. See Cab Co. v. Charlotte, 234 N.C. 572, 576, 68 S.E.2d 433, 436 (1951). Changes made by the legislature to statutory structure and language are indicative of a change in legislative intent and therefore provide some weight in our analysis. Id. Amicus for Carolinas AGC, Inc., urges this Court to consider an attachment to the minutes of a House Committee on Judiciary III meeting held on 11 June 1985 as evidence of the legislature\u2019s intent in 1971. House Bill 1144, to which the minutes refer, is entitled \u201cAn Act to Clarify Filing Requirements for a Claim of Statutory Lien by a Subcontractor Dealing with One Other than the Owner of the Property.\u201d 1985 N.C. Sess. Laws ch. 702. A memorandum, written by the attorney who drafted the 1985 amendments to the statute contained in the bill, was attached to the minutes and may have been discussed in the meeting of the House Committee. The memorandum purports to describe the complete statutory scheme of N.C.G.S. \u00a7\u00a7 44A-17 to -23 and suggests a legislative intent consistent with amicus' argument.\nIn determining legislative intent, this Court does not look to the record of the internal deliberations of committees of the legislature considering proposed legislation. Indeed, we have declared affidavits of members of the legislature who adopted statutes in question not to be competent evidence of the purpose and intended construction of the legislation.\nWhile the cardinal principle of statutory construction is that the words of the statute must be given the meaning which will carry out the intent of the Legislature, that intent must be found from the language of the act, its legislative history and the circumstances surrounding its adoption which throw light upon the evil sought to be remedied. Testimony, even by members of the Legislature which adopted the statute, as to its purpose and the construction intended to be given by the Legislature to its terms, is not competent evidence upon which the court can make its determination as to the meaning of the statutory provision.\nMilk Commission v. Food Stores, 270 N.C. 323, 332-33, 154 S.E.2d 548, 555 (1967).\nEven the commentaries printed with the North Carolina General Statutes, which were not enacted into law by the General Assembly, are not treated as binding authority by this Court. See State v. Hosey, 318 N.C. 330, 337-38 n.2, 348 S.E.2d 805, 809-10 n.2 (1986); State v. Kim, 318 N.C. 614, 620 n.3, 350 S.E.2d 347, 351 n.3 (1986). Even if we were willing to consider the attachment to the legislative committee proceedings in question, and we are not, we would be unpersuaded that the memorandum, submitted nearly fourteen years after the passage of the statute under review, would be sufficiently persuasive to overturn what, prior to 1971, was a well-settled right of the subcontractor of subrogation to the contractor\u2019s lien.\nPlaintiff argues that a plain reading of the language of N.C.G.S. \u00a7 44A-23 creates a separate lien for tiered subcontractors on the real property by way of subrogation. One must focus on the language of the statute which indicates that the tiered subcontractor \u201cmay, to the extent of his claim, enforce the lien of the contractor created by Part 1 of Article 2 of this Chapter.\u201d N.C.G.S. \u00a7 44A-23 (1989) (emphasis added).\nDefendants and amicus Carolinas AGC, Inc., contend that the language \u201cto the extent of his claim\u201d does not create an alternate lien on the real property in favor of the tiered subcontractor, but rather, \u201cthe extent of [the subcontractor\u2019s] claim\u201d means the extent of the subcontractor\u2019s lien against funds, as provided for by N.C.G.S. \u00a7 44A-18. Defendants essentially argue that had the legislature intended a separate lien by subrogation in N.C.G.S. \u00a7 44A-23, it would have said so explicitly.\nThe plain reading of the statute is not dispositive, and we therefore turn to an analysis of the structure of the statute to ascertain legislative intent. Plaintiff notes that N.C.G.S. \u00a7\u00a7 44A-18 and 44A-23 were both grouped by the legislature under article 2, part 2 of chapter 44A. Part 2 is entitled \u201cLiens of Mechanics, Laborers and Materialmen Dealing with One Other Than Owner.\u201d Plaintiff argues that such a statutory structure evinces a legislative intent that N.C.G.S. \u00a7\u00a7 44A-18 and 44A-23 create separate liens available to certain tiered subcontractors.\nIn construing the statutory provisions in pari materia, defendants and amicus make a number of compelling arguments. Essentially, defendants\u2019 position is that the legislature intended the \u201cto the extent of his claim\u201d language of N.C.G.S. \u00a7 44A-23 to be dependent upon the existence of a lien on funds created in N.C.G.S. \u00a7 44A-18. First, they point out that a subcontractor\u2019s right of subrogation is expressly articulated only in N.C.G.S. \u00a7 44A-18 and note that N.C.G.S. \u00a7 44A-18(6) refers to N.C.G.S. \u00a7 44A-23 when it provides: \u201cThe subrogation rights of a first, second, or third tier subcontractor to the lien of the contractor created by Part 1 of Article 2 of this Chapter are perfected as provided in G.S. 44A-23.\u201d Defendants\u2019 and amicus\u2019 argument is that N.C.G.S. \u00a7 44A-23 only established a means to perfect the lien created in N.C.G.S. \u00a7 44A-18. Defendants infer significance from the legislature\u2019s use of the language \u201centitle[ment] to a lien\u201d in section 44A-18(2) and contrast it with the language \u201cto the extent of his claim\u201d in section 44A-23. We note further that the legislature used the phrase \u201cextent of his claim\u201d in N.C.G.S. \u00a7 44A-18(2) and (3) to describe the subcontractor\u2019s lien by subrogation to the rights of parties ahead of it. In that context, consistent with defendants\u2019 interpretation of N.C.G.S. \u00a7 44A-23, the extent of the claim was restricted to the subcontractor\u2019s lien on funds. However persuasive, the arguments are not decisive here, and we now turn to an analysis of policy objectives.\nIn considering the policy objectives that the legislators sought to achieve in enacting the statute, we note that a constitutional mandate is directly on point. The North Carolina Constitution states:\nThe General Assembly shall provide by proper legislation for giving to mechanics and laborers an adequate lien on the subject-matter of their labor.\nN.C. Const, art. X, \u00a7 3. An adequate lien is intended to foster the construction industry, which operates largely on credit. Suppliers, including architects and surveyors, among many others, provide labor and materials to contractors and subcontractors who perform their portion of the work on a project. Since the contractor or subcontractor is generally not paid until the job, or a portion of it, is completed (and is probably unable to pay until it, in turn, is paid), their suppliers extend labor and materials to them on credit. An adequate lien is necessary to encourage responsible extensions of credit, which are necessary to the health of the construction industry. See, e.g., Carolina Builders Corp. v. Howard-Veasey Homes, Inc., 72 N.C. App. 224, 229, 324 S.E.2d 626, 629, cert. denied, 313 N.C. 597, 330 S.E.2d 606 (1985); Miller v. Lemon Tree Inn, 39 N.C. App. 133, 140, 249 S.E.2d 836, 841 (1978).\nPlaintiff argues that defendants\u2019 construction of the statute would abrogate the purpose of the constitutional mandate requiring an \u201cadequate lien.\u201d We note that the constitutional mandate specifically refers to a lien on the \u201csubject-matter of [the subcontractor\u2019s] labor\u201d (emphasis added) and contrast it with defendants\u2019 interpretation of legislative intent, which creates a lien system based largely on funds. Moreover, plaintiff contends that the General Assembly enacted N.C.G.S. \u00a7 44A-18 to provide additional protection to subcontractors by establishing a lien on funds for a subcontractor, even if the contractor had specifically agreed with the owner not to place any lien on the owner\u2019s property, thereby circumventing the lien created by N.C.G.S. \u00a7 44A-23. See, e.g., Con Co. v. Wilson Acres Apts., 56 N.C. App. 661, 663, 289 S.E.2d 633, 635, cert. denied, 306 N.C. 382, 294 S.E.2d 206 (1982); Mace v. Construction Corp., 48 N.C. App. 297, 303-04, 269 S.E.2d 191, 194-95 (1980).\nDefendants and amicus point out that while the owner\u2019s property is subject to sale in a lien enforcement under N.C.G.S. \u00a7 44A-23, construction contracts, as a standard practice, call for the contractor who deals directly with the owner to indemnify the owner. This means that, as a practical matter, such contractor essentially bears the economic burden that arises when the first-tier subcontractor abandons the project while owing monies to lower-tiered subcontractors. They further argue that if such contractors required their first-tier subcontractors to post payment bonds, the costs of construction would rise and small subcontractors would be driven from the industry.\nPlaintiff and amicus American Subcontractors Association, Inc., respond that the burden of a defaulting first-tier subcontractor is better borne by the contractor who hired it. Moreover, by exercising greater supervisory responsibility over the first-tier subcontractor, the contractor who dealt directly with the owner can avert or at least minimize losses. If such contractor requires additional assurances, he can require payment bonds. See N.C.G.S. \u00a7 44A-26 (1989). Together, plaintiff and amicus note that better supervision by such contractors and the relatively infrequent occurrence of a first-tier subcontractor becoming insolvent during construction will minimize the need for payment bonds, which concededly increase the costs of construction. In addition, we note that the use of lien waivers, used other than in anticipation of and in consideration for the awarding of a contract, may also minimize liability by contractors who deal with the owner. See N.C.G.S. \u00a7 44A-12(f) (1989).\nWe hold that, in light of the plain language of the statutory provisions, their structure, and more importantly, the policy sought to be achieved by the legislature, N.C.G.S. \u00a7 44A-23 provides first-, second-, and third-tier subcontractors a separate right of subrogation to the lien of the contractor who deals with the owner, distinct from the rights contained in N.C.G.S. \u00a7 44A-18.\nII.\nHaving established that the subcontractor has a separate lien right by way of subrogation to the contractor\u2019s lien on the real estate, we must next examine the extent of the lien that plaintiff asserts. The contractor\u2019s lien is described in N.C.G.S. \u00a7 44A-8, found in part 1 of article 2, entitled \u201cLiens of Mechanics, Laborers and Materialmen Dealing with Owner.\u201d (Emphasis added.) It provides:\n\u00a7 44A-8. Mechanics\u2019, laborers\u2019 and materialmen\u2019s lien; persons entitled to lien.\nAny person who performs or furnishes labor or professional design or surveying services or furnishes materials pursuant to a contract, either express or implied, with the owner of real property for the making of an improvement thereon shall, upon complying with the provisions of this Article, have a lien on such real property to secure payment of all debts owing for labor done or professional design or surveying services or material furnished pursuant to such contract.\nN.C.G.S. \u00a7 44A-8 (1989) (emphasis added).\nIn construing the subcontractor\u2019s subrogated interest to the contractor\u2019s lien, we first hold that, in light of the policy behind the passage of N.C.G.S. \u00a7 44A-23, the subcontractor may assert whatever lien that the contractor who dealt with the owner has against the owner\u2019s real property relating to the project. See Powell v. Lumber Co., 168 N.C. 632, 638, 84 S.E. 1032, 1035 (1915). Therefore, even if the owner has specifically paid the contractor for the labor or materials supplied by the specific unpaid subcontractor who is claiming the lien, that subcontractor retains a right of subrogation, to the extent of his claim, to whatever lien rights the contractor otherwise has in the project. However, N.C.G.S. \u00a7 44A-23 also provides that:\nUpon the filing of the notice and claim of lien and the commencement of the action [by the subcontractor], no action of the contractor shall be effective to prejudice the rights of the subcontractor without his written consent.\nN.C.G.S. \u00a7 44A-23 (1989). As a result, until the subcontractor commences the action, the clear statutory language indicates that the contractor may prejudice the subcontractor\u2019s rights through waiver of the lien or acceptance of payment. See Mace v. Construction Corp., 48 N.C. App. 297, 303, 269 S.E.2d 191, 195; see generally Urban & Miles, Mechanics\u2019 Liens for the Improvement of Real Property: Recent Developments in Perfection, Enforcement and Priority, 12 Wake Forest L. Rev. 283, 376 (1976).\nIn conclusion, we note that plaintiff has not established a lien on funds paid by the Owner to the Contractor. A lien on the real property by way of subrogation may or may not exist, depending upon the timing of the Owner\u2019s final payment to the Contractor relative to the commencement of this action. The record is unclear as to the timing of this final payment. We therefore affirm the decision of the Court of Appeals and remand to that court for further remand to the Superior Court, Durham County, for a determination of this issue and a full determination of this case consistent with this opinion.\nAffirmed.\n. Since plaintiff\u2019s only viable claim is by way of subrogation to the Contractor\u2019s rights, it is the Contractor\u2019s actions which are the pertinent inquiry here. See N.C.G.S. \u00a7 44A-23 (1989). The record and briefs of the parties address only the dates materials were last furnished by the Second-tier Subcontractor. It can be assumed in this case that as long as the Second-tier Subcontractor was furnishing materials for the job, they were being furnished on behalf of the Contractor.\n. From 1880 until 1971, essentially the following statute was in effect:\n\u00a7 44-6. Lien given subcontractors, etc., on real estate. \u2014 AM subcontractors and laborers who are employed to furnish or who do furnish labor or material for the building, repairing or altering any house or other improvement on real estate, have a lien on said house and real estate for the amount of such labor done or material furnished, which lien shall be preferred to the mechanic\u2019s lien now provided by law, when notice thereof shall be given as hereinafter provided which may be enforced as other liens in this chapter and in chapter 44A, except where it is otherwise provided; but the sum total of all the liens due subcontractors and materialmen shall not exceed the amount due the original contractor at the time of notice given.\nN.C.G.S. \u00a7 44-6 (Supp. 1969), repealed by 1971 N.C. Sess. Laws ch. 880, \u00a7 2 (effective 1 October 1971) (emphasis added).\nThis Court consistently construed this mandate to allow the subcontractor a right of subrogation to the lien of the contractor who dealt with the owner, regardless of whether funds were owed to the party with whom the subcontractor dealt. Powder Co. v. Denton, 176 N.C. 426, 432-33, 97 S.E. 372, 374-75 (1919); Brick Co. v. Pulley, 168 N.C. 371, 375, 84 S.E. 513, 514 (1915); Powell v. Lumber Co., 168 N.C. 632, 638, 84 S.E. 1032, 1035 (1915); see also Supply Co. v. Motor Lodge, 277 N.C. 312, 316, 177 S.E.2d 392, 394 (1970).", "type": "majority", "author": "MEYER, Justice." }, { "text": "Justice MARTIN\ndissenting.\nI respectfully dissent from the majority opinion. The question to be decided is whether a second tier subcontractor is entitled to perfect a lien against the owner of real property under N.C.G.S. \u00a7 44A-23 when both the owner and the general contractor, prior to receiving the second tier subcontractor\u2019s notice of claim of lien, have fully discharged all of their obligations to the first tier subcontractor, including payment of debts due for labor and the materials furnished by the second tier subcontractor. The majority has allowed such a lien; in so doing, the majority has erred.\nMechanics\u2019 liens on real property in this State are governed by Article 2 of Chapter 44A of the General Statutes. There are two categories. The first concerns those liens arising from claims based upon direct dealing between the owner of the property and the party claiming the lien. The second concerns the claims of lien by parties who did not deal directly with the owner of the real property. The instant appeal is concerned with the rights of a second tier subcontractor who did not deal directly with the owner, but contracted solely with a first tier subcontractor.\nFundamental to a subcontractor\u2019s right to a lien is whether he has given timely written notice of a claim of lien directly to the owner of the real property, to the general contractor, and to any subcontractor superior to him in the chain of construction. N.C.G.S. \u00a7\u00a7 44A-18, -19, -20, and -23 (1989). This actual written notice is the cornerstone of a subcontractor\u2019s lien rights. Until the owner receives notice of a claim of lien from a subcontractor, the owner is free to disburse funds to the general contractor. Likewise, until the general contractor receives notice of a claim of lien from a subcontractor of a given tier, he is free to disburse funds to higher tiered subcontractors. If a notice of claim of lien is provided by a subcontractor, and the owner, contractor, or higher tiered subcontractor ignores the notice of claim of lien, that obligor must pay twice for the same material or labor, once to the party to whom he paid funds after receiving the notice and again to the unpaid subcontractor lien claimant.\nThus, it is clear that the purpose of the adoption of Chapter 44A of the General Statutes was to establish a tiered lien system for subcontractors, thereby limiting a subcontractor\u2019s lien rights to those of the parties above him. If, at the time the owner receives notice of the second tier subcontractor\u2019s lien claim the owner no longer owes any funds to the general contractor, then no funds are in the possession of the owner to which such subcontractor\u2019s lien can attach. The subcontractor\u2019s lien rights are limited to the rights of the parties above him. See Mace v. Construction Corp., 48 N.C. App. 297, 269 S.E.2d 191 (1980); Builders Supply v. Bedros, 32 N.C. App. 209, 231 S.E.2d 199 (1977).\nHowever, if a second tier subcontractor has a lien upon funds owed by the owner to the general contractor, the second tier subcontractor is also entitled to a lien upon the owner\u2019s real property to the extent of his lien. If the owner pays the general contractor after the owner receives the second tier subcontractor\u2019s notice of claim against the funds, the owner may also be required to pay the subcontractor. N.C.G.S. \u00a7 44A-20 (1989).\nIn some circumstances, a first, second, or third tier subcontractor may also be entitled to a lien against the real property of the owner by subrogation if the owner refuses to pay for the labor and materials furnished by the subcontractor. N.C.G.S. \u00a7 44A-23 instructs how such subcontractor may by subrogation perfect the lien rights of the general contractor against the owner\u2019s real property should an owner become insolvent or refuse to pay the general contractor. In order to perfect such a lien against the property of the owner the subcontractor must have established a lien upon the funds owed by the owner to the general contractor. Then, he must (a) perfect his subrogated lien against the owner\u2019s real property by serving upon all persons above him in the construction chain his notice of claim of lien against the funds, (b) file with the appropriate clerk of the superior court a claim of lien against the real property along with a notice of his claim of lien against the funds, and (c) commence a lien enforcement lawsuit. See N.C.G.S. \u00a7 44A-23 (1989). Like all liens created by Part 2 of Article 2 of Chapter 44A, the subcontractor\u2019s subrogation to the general contractor\u2019s lien rights against the land of the owner is dependent upon the existence of an underlying claim of lien upon the funds owed to the party above him and with whom he contracted. This is apparent from the plain meaning of N.C.G.S. \u00a7 44A-23 wherein it is stated that \u201c[a] first, second or third tier subcontractor, who gives notice as provided in this Article, may, to the extent of his claim, enforce the lien of the contractor . . . .\u201d N.C.G.S. \u00a7 44A-23 (1989). The manner of such enforcement is detailed in the section. The key to establishing the claim is the phrase \u201cto the extent of his claim.\u201d Id. In the instant case, the second tier subcontractor was unable to establish any claim upon the funds of the first tier subcontractor because there were no funds available for that purpose.\nEven if it is assumed that N.C.G.S. \u00a7 44A-23 on its face is not clear, any reasonable interpretation of the statute discloses that it is necessary for the second tier subcontractor to establish its claim on funds before he can establish a lien on the owner\u2019s real property by subrogation.\nIt is an accepted method of determining the intent of the legislature to examine any legislative history available concerning the legislation in question. See, e.g., Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136-37 (1990) (Meyer, J.); Hunt v. Reinsurance Facility, 302 N.C. 274, 295, 275 S.E.2d 399, 409-10 (1981) (\u201cWe find especially pertinent, in considering the intent of our Legislature, this statement [of the North Carolina Legislative Research Commission Report to the 1979 General Assembly of North Carolina, Insurance Laws, at 12-13] to the 1979 General Assembly commenting on the 1977 insurance law amendments: . . .\u201d); Greene v. Town of Valdese, 306 N.C. 79, 83-84, 291 S.E.2d 630, 633 (1982) (relying upon Report of the Municipal Government Study Commission to determine legislative intent behind statutory scheme recommended by the Report and subsequently adopted by the Legislature). Cf. generally Stafford, \u201cNorth Carolina Legislative History,\u201d 38 N.C. State Bar Quarterly 22 (Winter 1991).\nThe legislative history of N.C.G.S. \u00a7 44A-23 discloses that in 1985 the General Assembly ratified an amendment to the lien law contained in House Bill 1144. An Act to Clarify Filing Requirements for a Claim of Statutory Lien By a Subcontractor Dealing With One Other than the Owner of the Property, 1985 N.C. Sess. Laws ch. 702. This session law was later codified, in pertinent part, in N.C.G.S. \u00a7 44A-23. In a hearing on this bill before the Judiciary III Committee, Representative Boyd explained that the bill clarified the method of filing a notice of claim of lien for a subcontractor, and then recognized Martha Harris, a staff attorney for the North Carolina Legislative Services Office, who had drafted the bill, and who was present to explain the bill further. Minutes, North Carolina House Committee on Judiciary III dated June 11, 1985 (\u201cRep. Boyd recognized Martha Harris who had drafted [House Bill 1144] to explain it further. A copy of this explanation is attached.\u201d). Ms. Harris spoke to the committee and filed with it a written explanation of the bill. The pertinent parts of this memo read:\nRE: House Bill 1144\nNote: This discussion focuses on three parties: the landowner, the contractor with whom he dealt, and the subcontractor who dealt with the contractor. The rules that apply to the subcontractor will apply, with some procedural complications, to second and third tier subcontractors as well.\nHouse Bill 1144 clarifies the effect of a subcontractor\u2019s filing a notice of a claim of lien against a property owner with whom he has not dealt directly. Under current law, a subcontractor can perfect a lien against the owner\u2019s real property at any time, even before the work has been done or after the owner has paid the debt in full. The bill provides that, like a contractor who has dealt directly with the property owner, a subcontractor may not perfect a lien against the property unless the owner owes money for the work performed.\nPart 2 of Article 2 of Chapter 44A creates several different types of liens in favor of subcontractors who have not dealt with the owner of the property. First, a subcontractor has a lien on funds owed by the contractor with whom he dealt for the improvement on which the subcontractor worked. This lien is perfected by giving notice of the lien to the landowner who owes or will owe the funds to the contractor with whom the subcontractor dealt. This notice may be filed at any time whether or not payment of the funds is yet due.\nThe subcontractor may enforce this lien on funds by enforcing the lien of the contractor who dealt directly with the owner against the property. Thus, the lien of the subcontractor against funds owed to the contractor creates a second lien, against the owner\u2019s property. Unlike the lien in favor of the contractor, however, this lien can be perfected at any time whether or not the work has been performed and whether or not the owner owes anything for the work. By filing the notice of lien, the subcontractor can create a cloud on the owner\u2019s title at any time. In practice, many subcontractors file this notice whenever they begin work on a new project.\nHouse Bill 1144 would provide that the notice of lien filed by the subcontractor perfects the subcontractor\u2019s lien against any funds owed to the contractor but does not perfect a lien against the landowner\u2019s property. A subcontractor could only perfect the lien against the owner\u2019s property in the same way as a contractor: by filing a claim of lien after the owner\u2019s obligation to the contractor become mature. The lien would then relate back to the time the subcontractor first furnished labor or materials at the site.\nMemorandum dated May 28, 1985 To Representative Boyd from Martha Harris, Staff Attorney Re: House Bill Ukk.\nIt is to be noted that the above legislative history is related to the 1985 amendments to N.C.G.S. \u00a7\u00a7 44A-19, -20, -18(b), and -23. The amendment to section 23 reads:\nSec. 4. G.S. 44A-23 is amended by adding after the second sentence of that section a new sentence to read: \u201cThe lien is perfected as of the time set forth in G.S. 44A-10 upon filing of claim of lien pursuant to G.S. 44A-12.\u201d\n1985 N.C. Sess. Laws ch. 702, \u00a7 4.\nSo it is clear that the above legislative history explained the legislative intent as to the meaning of section 23, and other parts of the lien statute, as amended by the 1985 legislature, not the meaning of section 23 as of 1971 as argued by the majority. The statute under review is not the 1971 version of N.C.G.S. \u00a7 44A-23, but the 1985 amended statute. The legislative history above stated is most relevant in determining the intent of the legislature. Milk Commission v. Food Stores, 270 N.C. 323, 154 S.E.2d 548 (1967).\nThis legislative history clearly demonstrates that N.C.G.S. \u00a7 44A-23 requires that a subcontractor perfect his claim of lien against the funds due the person with whom he contracted before he can establish a lien by subrogation against the real property of the owner. If the majority\u2019s interpretation of N.C.G.S. \u00a7 44A-23 were correct, there would be no logical need for the tiered lien system contained in Chapter 44A.\nThe correct interpretation of N.C.G.S. \u00a7 44A-23 is also supported by case law reported since the adoption of the present tiered lien scheme in 1971. In Builders Supply v. Bedros, 32 N.C. App. 209, 231 S.E.2d 199, the Court of Appeals held that if the general contractor had been paid or had released its claim of lien before its subcontractor asserted a lien on funds owed to the general contractor there was nothing for the subcontractor to place a lien on, and no lien could be established against the land of the owner by the subcontractor. Mace v. Construction Corp., 48 N.C. App. 297, 269 S.E.2d 191, holds that where a general contractor had expressly waived its right to claim a lien, the subcontractor had no right to a lien on the real property of the owner pursuant to N.C.G.S. \u00a7 44A-23. But cf. N.C.G.S. \u00a7 44A-12(f) (1989).\nPublic policy dictates that the party who has the ability to protect himself from loss should do so, and if he fails to so act in his own behalf it is not appropriate to require an innocent party to pay twice in order to make the negligent party whole. So here, where the second tier subcontractor fails to properly file his claim of lien against funds owed to the first tier subcontractor or the general contractor it would be inequitable to require the owner or the general contractor to again pay the amount claimed by the plaintiff, that sum having already been paid to the defaulting first tier subcontractor. Plaintiff here delayed some five months, from December until May, before giving notice of its unpaid claim. The law as well as equity protects the general contractor and owner in this instance and does not require either to again pay in order to benefit the negligent second tier subcontractor.\nFor these reasons, the majority opinion erred in allowing the second tier subcontractor to perfect a lien against the owner when the second tier subcontractor had not complied with N.C.G.S. \u00a7 44A-18 and had failed to file notice of its claim against funds in a timely fashion to protect its own interest. In short, the majority has simply amended the statute to allow the plaintiff to recover in this instance. This creates both confusion and error in the law, works an inequity upon the landowner and general contractor in this case, and establishes a rule of law that will be injurious to contractors and the construction industry generally in North Carolina.\nJustice WEBB joins in this dissenting opinion.", "type": "dissent", "author": "Justice MARTIN" } ], "attorneys": [ "Pulley, Watson, King & Hofler, P.A., by R. Hayes Hofler and Michael J. O\u2019Foghludha, for plaintiff-appellee.", "Manning, Fulton & Skinner, by John I. Mabe, Jr., for defendant-appellants Davidson and Jones Const. Co. and Winstons Venture I.", "Johnston, Taylor, Allison & Hord, by James W. Allison and Greg C. Ahlum, for Carolinas AGC, Inc., amicus curiae.", "Weinstein & Sturges, P.A., by L. Holmes Eleazer, Jr., and Fenton T. Erwin, Jr., for American Subcontractors Association, Inc., amicus curiae." ], "corrections": "", "head_matter": "ELECTRIC SUPPLY CO. OF DURHAM, INC. v. SWAIN ELECTRICAL CO., INC., DAVIDSON AND JONES CONSTRUCTION COMPANY, and WINSTONS VENTURE I, a North Carolina Partnership\nNo. 181PA90\n(Filed 2 May 1991)\n1. Laborers\u2019 and Materialmen\u2019s Liens \u00a7 3 (NCI3d)\u2014 tiered subcontractors \u2014 subrogation to contractor\u2019s real property lien\nIn light of the plain language of the statutory provisions, their structure, and the policy sought to be achieved by the legislature, N.C.G.S. \u00a7 44A-23 provides first, second and third tier subcontractors a separate right of subrogation to the contractor\u2019s lien on the real property distinct from the lien on funds contained in N.C.G.S. \u00a7 44A-18.\nAm Jur 2d, Mechanics\u2019 Liens \u00a7\u00a7 17-25, 67, 70, 263 et seq.\n2. Statutes \u00a7 5.6 (NCI3d)\u2014 legislative intent \u2014 legislative committee records \u2014 commentaries in General Statutes\nIn determining legislative intent, the appellate court does not look to the record of the internal deliberations of committees of the legislature considering proposed legislation. Even commentaries printed with the General Statutes, which were not enacted into law by the legislature, are not treated as binding authority.\nAm Jur 2d, Mechanics\u2019 Liens \u00a7\u00a7 17-25; Statutes \u00a7\u00a7 169 et seq.\n3. Laborers\u2019 and Materialmen\u2019s Liens \u00a7 3 (NCI3d) \u2014 subcontractor-subrogation to contractor\u2019s real property Hen\nA subcontractor may assert whatever lien the contractor who dealt with the owner has against the owner\u2019s real property relating to the project. Therefore, even if the owner has specifically paid the contractor for the labor or the materials supplied by the specific unpaid subcontractor who is claiming the lien, that subcontractor retains a right of subrogation, to the extent of his claim, to whatever lien rights the contractor otherwise has in the project. However, until the subcontractor commences the action, the contractor may prejudice the subcontractor\u2019s rights through waiver of the lien or acceptance of payment.\nAm Jur 2d, Mechanics\u2019 Liens \u00a7\u00a7 67, 70, 263 et seq., 296.\nJustice Martin dissenting.\nJustice WEBB joins in this dissenting opinion.\nOn discretionary review of a decision of the Court of Appeals, 97 N.C. App. 479, 389 S.E.2d 128 (1990), reversing a' judgment entered by Battle, J., in the Superior Court, DURHAM County, on 23 February 1989, declaring that the plaintiff had no claim against defendants by way of lien or subrogation and remanding the case to the trial division. Heard in the Supreme Court 12 December 1990.\nPulley, Watson, King & Hofler, P.A., by R. Hayes Hofler and Michael J. O\u2019Foghludha, for plaintiff-appellee.\nManning, Fulton & Skinner, by John I. Mabe, Jr., for defendant-appellants Davidson and Jones Const. Co. and Winstons Venture I.\nJohnston, Taylor, Allison & Hord, by James W. Allison and Greg C. Ahlum, for Carolinas AGC, Inc., amicus curiae.\nWeinstein & Sturges, P.A., by L. Holmes Eleazer, Jr., and Fenton T. Erwin, Jr., for American Subcontractors Association, Inc., amicus curiae." }, "file_name": "0651-01", "first_page_order": 685, "last_page_order": 702 }