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2008-UP-541 - Reid v. Carr

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Shawn M. Reid d/b/a Bolt Electric, Appellant,

v.

Michael J. Carr, Andrea K. Carr, and Kessler Construction Company, Respondents.


Appeal from Beaufort County
Curtis L. Coltrane, Master-In-Equity


Unpublished Opinion No. 2008-UP-541
Submitted September 2, 2008 – Filed September 17, 2008   


AFFIRMED


Ehrick K. Haight, Jr., of Hilton Head Island, for Appellant.

Terry A. Finger and Tyler A. Melnick, both of Hilton Head Island, for Respondents.

PER CURIAM:  Shawn M. Reid appeals the master’s grant of summary judgment in favor of the Carrs based on the failure to serve a mechanic’s lien.  We affirm.[1]

FACTS AND PROCEDURAL HISTORY

Reid performed electrical work on a home being built by the Carrs.    Reid filed a mechanic’s lien against the property.  Reid attempted to serve the Carrs by leaving the notice and certificate of lien with Carlos Garcia, a painting subcontractor present on the property.  Reid had the Sheriff’s Office in Oakland County, Michigan attempt to serve the Carrs at their residence in that state.  When the Sheriff’s Office was unable to serve the Carrs, Reid filed affidavits of non-service approximately 109 days after the last date of work on the subject property. 

The master granted the Carr’s motion for summary judgment for lack of effective service under S.C. Code Ann. § 29-5-90, the mechanic’s lien statute.  Reid appeals.

STANDARD OF REVIEW

Reid argues that the master erred in granting summary judgment to the Carrs, because there were genuine issues of material fact regarding service of the mechanic’s lien.  However, the record shows that the facts are essentially undisputed.  The question presented to the master was whether the facts set forth satisfied the service requirements found in the mechanic’s lien statute.   “When an appeal involves stipulated or undisputed facts, an appellate court is free to review whether the trial court properly applied the law to those facts.”  Duke Power Co. v. Laurens Elec. Co-op., Inc., 344 S.C. 101, 104, 543 S.E.2d 560, 561 (Ct. App. 2000).  

LAW/ANALYSIS

Reid’s first argument involves service of the notice and certificate of lien on Garcia.  Reid contends that Garcia, a laborer of a subcontractor, constitutes a “person in possession” as contemplated by the mechanic’s lien statute.  The statute provides that a mechanic’s lien shall be dissolved unless the person desiring the lien serves the owner or “person in possession” of the property with a notice and certificate of lien.  S.C. Code Ann. § 29-5-90 (2007).  The only case touching on this issue is Stovall Bldg. Supplies, Inc. v. Mottet, 305 S.C. 28, 406 S.E.2d 176 (Ct. App. 1990).  In Stovall, the court determined that service of a mechanic’s lien on a subdivision security guard did not constitute service on a “person in possession” as contemplated by the statute.  Id. at 33, 406 S.E.2d at 179.  The court stated “[t]he security guard was not a responsible person living in the [owner’s] home.”  Id.  Likewise, Garcia, as the employee of a subcontractor, was not a responsible person living in the home.  Therefore, service on Garcia would not constitute service on a “person in possession” and would not be sufficient to preserve the mechanic’s lien.

Reid further argues the affidavits of non-service that were filed outside the ninety-day statutory period are valid to preserve the lien.  The statute sets a ninety-day time limit after the last date of labor or furnishing of materials to accomplish service.  S.C. Code Ann. § 29-5-90 (2007).  The statute contemplates that service may not always be possible.  Id.  “[I]n the event neither the owner nor the person in possession can be located after diligent search, and this fact is verified by affidavit of the sheriff or his deputy, the lien may be preserved by filing the statement together with the affidavit.”  Id.  The statute does not however provide for an extension of time for attempted service or the subsequent filing of affidavits of non-service.  To read a vague grace period into the statute would go against the general policy of interpreting statutes according to their plain meaning.  See Mun. Ass’n of S.C. v. AT&T Commc’ns of S. States, Inc., 361 S.C. 576, 580, 606 S.E.2d 468, 470 (2004) (“[T]he words of the statute must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute's operation.”).  Accordingly, the master correctly applied the statute under these circumstances to conclude that the filing of affidavits of non-service outside the ninety-day time limit did not preserve the lien.

Finally, Reid argues that service on the Kessler Construction Company  as general contractors satisfied the requirement of service on the owners.  Nothing in the statute provides for such substituted service, and the relevant affidavit of service only indicates service on Kessler Construction as a party, not as agent for the Carrs.

Based on all of the foregoing, the ruling of the master is

AFFIRMED.

ANDERSON, WILLIAMS, and KONDUROS, JJ., concur.


[1]        We decide this case without oral argument pursuant to Rule 215, SCACR.