Heard June 12, 2014
Appeal From Greenville County The Honorable R. Lawton McIntosh, Circuit Court Judge
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Robert E. Culver, of Charleston, for Petitioner.
Ronald G. Tate, Jr., and Zachary Lee Weaver, both of Gallivan, White & Boyd, P.A., of Greenville, for Respondent.
This Court granted a petition for a writ of certiorari to review the decision in Ferguson Fire & Fabrication, Inc. v. Preferred Fire Protection, L.L.C., 397 S.C. 379, 725 S.E.2d 495 (Ct. App. 2012), in which a supplier of materials ("Ferguson Fire") brought an action for foreclosure of a mechanic's lien against the owner of a data center ("Immedion") and its contractor ("Preferred Fire"). Ferguson Fire contends, and we agree, that the Court of Appeals erred in adding requirements to S.C Code Ann. § 29-5-40 (2007), governing a notice of furnishing, that are not in the statute itself and in concluding Ferguson Fire did not establish an effective lien upon which a foreclosure action could be premised. We reverse and remand.
This case arises out of Ferguson Fire's efforts to obtain payment for materials it supplied to Preferred Fire for Immedion's data center. An outline of the events leading to Ferguson Fire's mechanic's lien action and the lower courts' rulings follow.
Contracts for Improvements to Immedion's Data Center
In 2007, Immedion, a telecommunications company, hired Rescom, L.L.C. to be the general contractor for improvements planned for its data center on property Immedion leased in Greenville. This contract excluded the performance of part of the fire protection work that was needed. Rescom, in turn, hired Preferred Fire, a fire sprinkler company, as a subcontractor.
In addition, Immedion directly hired Preferred Fire under a separate contract for $30, 973.00 to install a special "pre-action" fire suppression system in its data center. To complete this work, Preferred Fire purchased materials from Ferguson Fire. Ferguson Fire began delivering materials to Preferred Fire on August 24, 2007, and the deliveries continued through October 16, 2007.
Notice of Furnishing Labor and/or Materials
On September 21, 2007, while its deliveries were in progress, Ferguson Fire sent a "Notice of Furnishing Labor and Materials" ("Notice of Furnishing") to Immedion advising it in relevant part that it had been employed by Preferred Fire to deliver labor, services, or materials with an estimated value of $15, 000.00 to Immedion's premises. The Notice of Furnishing advised that it was being given as "a routine procedure to comply with certain state requirements that may exist, " and that it was not a lien, nor any reflection on Preferred Fire's credit standing.
Immedion paid Preferred Fire $15, 486.50 of the $30, 973.00 contract price for installation of the system before receiving Ferguson Fire's Notice of Furnishing on September 21, 2007. After receiving the Notice of Furnishing, Immedion issued two additional checks to Preferred Fire totaling $15, 486.50 for the unpaid balance of the contract price.
It is undisputed that Immedion paid everything it owed to Rescom, and it also paid its contractor Preferred Fire in full under the separate contract for the fire suppression system. However, Preferred Fire never paid Ferguson Fire for the materials it furnished.
Notice or Certificate of Lien
On January 8, 2008, Ferguson Fire served upon Immedion, Preferred Fire, and others (and later filed) a "Statement and Notice of Mechanic's Lien, " which gave notice of the existence of a lien and included a Statement of Account. Ferguson Fire indicated it had supplied $15, 548.93 in materials to Preferred Fire for Immedion's premises from August 24, 2007 through October 16, 2007 pursuant to an agreement with Preferred Fire that was entered into "with the knowledge and consent and permission and authorization of Immedion." Ferguson Fire stated $15, 548.93 was still owing and due, and it asserted a mechanic's lien upon the described premises.
Complaint for Foreclosure of Lien & Summary Judgment Motions
On April 11, 2008, Ferguson Fire filed a complaint and a lis pendens against Preferred Fire, Fair Forest of Greenville, L.L.C., Thomas F. Wong, and Immedion seeking foreclosure of a mechanic's lien as to all defendants, as well as attorney's fees, costs, and interest.
Immedion answered and thereafter moved for summary judgment, maintaining (1) there was no evidence Ferguson Fire had furnished any materials for the benefit of property owned by Immedion, as it was a mere leaseholder; (2) there was no contractual relationship giving rise to liability between Ferguson Fire and Immedion; and (3) Immedion paid in full for all work performed ...