34 N.C. App. 341 | N.C. Ct. App. | 1977
The primary question raised by this appeal is whether the uncontroverted facts established by this record support the judgment declaring that plaintiff’s lien dates from 17 October 1973
Ҥ 44A-7. Definitions. . . . :
“(2) ‘Improvement’ means all or any part of any building, structure, erection, alteration, demolition, excavation, clearing, grading, filling, or landscaping, including trees and shrubbery, driveways, and private roadways, on real property.
“§ kbA-8. Mechanics’, laborers’ and materialmen’s lien: persons entitled to lien. — Any person who performs or furnishes labor 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 material furnished pursuant to such contract.” (Emphasis added.)
In Smith v. South Mountain Properties, Inc., 29 N.C. App. 447, 224 S.E. 2d 692, cert. denied, 290 N.C. 552 (1976), and Bryan v. Projects, Inc., 29 N.C. App. 453, 224 S.E. 2d 689, cert. denied, 290 N.C. 550 (1976), this Court analyzed these statutes and held that labor furnished by land surveyors, landscape architects, planners, consultants, and other professionals pursuant to a contract with the owner to provide such services was not lienable under G.S. 44A-8. Labor performed in providing such professional services does not fall within the statutory definition of “improvement,” G.S. 44A-7(2). Smith v. South Mountain Properties, Inc., supra; Bryan v. Projects, Inc., supra.
In the present case plaintiff was under contract to construct on Spanish Inns’ property a large motel. Obviously, the construe
Defendants’ second assignment of error reads as follows:
“The appellants were not parties to the arbitration proceedings between the plaintiff and the defendant Spanish Inns Charlotte, Ltd., wherein the amount of the plaintiff’s recovery upon its construction contract was established, and the amount of the arbitration award cannot be binding upon the appellants in this action of the plaintiff to perfect its lien.”
This assignment of error purports to be based on an exception to the judgment from which the appeal is taken; yet, the assignment of error seems to challenge the amount of the arbitration award which was established in a separate proceeding. Assuming arguendo that these defendants had standing to challenge the arbitration award, the record affirmatively discloses that they waived such right by not participating in either the arbitration award hearing or the hearing in the Superior Court confirming the award when they had notice of such hearings. Moreover, no exception was noted to either the award, or the order of the Superior Court confirming the award. This assignment of error has no merit.
Defendants’ final assignment of error reads as follows:
“The plaintiff is estopped to assert a lien prior to said deed of trust because of a noncommencement affidavit executed by its surveying subcontractor.”
Affirmed.