337 So. 2d 729 | Ala. | 1976
This is an appeal from an order of the Circuit Court of Baldwin County granting summary judgment against Nelson-American. We affirm.
The first appeal in this case was dismissed because it was not from a final judgment. Nelson-American Developers, Ltd. v.Enco Engineering Corporation,
Nelson-American's motion to dismiss having been overruled, it filed an answer alleging that the work done by Enco was not in a workmanlike manner; that numerous complaints had been received from sub-lessees about the defects in the construction, and that the lien statute, § 37, Title 33, Code of Alabama, is unconstitutional.
Enco moved for summary judgment, based upon the pleadings, interrogatory answers, the deposition of Nelson-American's managing partner, the affidavit of the Vice-President of Enco, and exhibits attached thereto. The court, also, considered Nelson-American's last amended answer, its counterclaim, and affidavits filed in opposition to the summary judgment.
In reviewing the evidence before the court, it appears that money was the root of the problem. Enco needed its money under the contract, and Nelson-American, at the time of completion of the contract, did not have the financial ability to pay. The "unworkmanlike manner" claim does not appear to have been an issue until the lien was filed, and suit filed to enforce it, although there were some complaints from the tenants. However, Nelson-American, in its final inspection neither complained of any unworkmanlike construction of the project, nor did it question the total balance due, until, in an affidavit by Henry Nelson on February 3, 1975, after his inspection on July 15, 1974, he said $255,000 was due, "assuming all items of work have been satisfactorily completed." His testimony by deposition indicated he did not know the actual amount owed Enco. He said that he had received complaints from the tenants, and that the permanent lenders had not yet accepted the work to the point of advancing him the remainder of the money.
The manager of Winn-Dixie Food Store, a tenant, by affidavit dated February 4, 1975, said a large concrete slab behind his building had been allowed to wash to the point that it had toppled and severed sewer lines, and endangered the severing of the natural gas line.
The Vice-President of Enco filed a second affidavit, dated April 1, repudiating Nelson-American's claim of additional work needed in completing the project.
The principal issues raised in this appeal are (1) the constitutionality of the lien statute; (2) whether Enco's complaint stated a cause of action, and (3) whether the trial court correctly granted summary judgment against Nelson-American.
The mechanic's lien statute appearing in the 1852 Code of Alabama provided:
1. Mechanic's lien for labor and materials furnished for a building.
2. The contract must be in writing, signed by the parties, and registered in the Probate Office where the "lands lie" within 60 days after execution.
3. The lien was subordinate to existing mortgages, deed of trust or other incumbrances required by law to be recorded.
4. The lien could be discharged by giving the builder sufficient surety.
5. Changes in the contract did not impair the lien, and were effectual against freehold or less estate, and whether the title was legal or equitable.
6. The lien could be enforced in equity, or by execution after a judgment at law obtained. Other property of the contracting party could be levied upon.
7. The lien was barred unless proceedings in equity or at law were not commenced within 90 days after completion of the work, or supply of the materials.
Section 4754 of the 1907 Code and § 37, Title 33 of the 1940 Code are virtually identical in providing for a mechanic's lien for work, or labor upon, or furnishing materials for, any building under a contract. In fact, the 1907 Code and the 1940 Code pertaining to mechanic's liens are practically the same.
Under § 37, T. 33 of the Code of Alabama 1940, there are two events giving rise to a lien: first, when the material is furnished under a contract or an effectual subsequent ratification of the contract, Richardson v. Little,
We hold the mechanic's lien statute to be constitutional as it applies to realty cases. The statute provides notice, the fountainhead of due process, and an opportunity to be heard. The filing of a notice of a lien does not dispossess the owner of the property. In this regard, we note Nelson-American is in possession of the property, and collecting rents.
The consumer protection cases, Fuentes v. Shevin,
The work was performed pursuant to the contract, and Nelson-American admitted the balance due, and payable. At the completion of the contract, Nelson-American did not complain of any unworkmanlike work. Its punch list of incomplete items was agreed to and performed by Enco. The trial court withheld judgment on Nelson-American's counterclaim of $23,000. It is still pending. The defects alleged in a tenant's affidavit can be repaired under the builder's warranty, as well as any other defects in the buildings.
We hold that the evidence of the case shows there is no genuine issue as to any material fact, and Enco is entitled to summary judgment as a matter of law.
AFFIRMED.
HEFLIN, C.J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.