Lowe's of Fayetteville, Inc. v. Quigley

266 S.E.2d 378 (1980)

LOWE'S OF FAYETTEVILLE, INC. v. Richard QUIGLEY and wife, Sandre Quigley.

No. 7911SC982.

Court of Appeals of North Carolina.

May 20, 1980.

*379 Clark, Shaw, Clark & Bartelt by Heman R. Clark, Fayetteville, for plaintiff.

Johnson & Johnson by W. Glenn Johnson, Lillington, for defendants.

ROBERT M. MARTIN, Judge.

The plaintiff by its first assignment of error contends that because its complaint states a claim for relief for indebtedness arising out of the unpaid account, the court erred in allowing defendants' motion for judgment on the pleadings and summary judgment and in dismissing plaintiff's entire cause of action when the notice of claim of lien was fatally defective.

It is well settled that "[t]he statutory lien is incident to and security for a debt. There can be no lien in the absence of an underlying debt." Eason v. Dew, 244 N.C. 571, 574, 94 S.E.2d 603, 606 (1956). "A laborers' and materialmen's lien arises out of the relationship of debtor and creditor, and it is for the debt that the lien is created by statute. Without a contract the lien does not exist." Clark v. Morris, 2 N.C. App. 388, 391, 162 S.E.2d 873, 874 (1968), quoting Air Conditioning Co. v. Douglass, 241 N.C. 170, 84 S.E.2d 828 (1954).

"Enforcement of a mechanic's lien is not the exclusive remedy in regard to the obligation which such lien secures. The enforcement of the lien is a cumulative remedy provided by statute . . . and may be pursued in connection with ordinary remedies. The lienor may proceed to enforce his lien and simultaneously bring an action to recover a personal judgment for the amount due." 53 Am.Jur.2d Mechanics' Liens § 340 (1970). The rule regarding the right to a personal judgment is further set out as follows:

Many cases hold that in an action to foreclose a mechanic's lien, a personal *380 judgment may be rendered against a party to the action who is liable, in addition to a judgment foreclosing the lien. * * * * * * The right to a personal judgment generally is dependent on a contractual relation being shown between the plaintiff and the defendant against whom the personal judgment is sought. So, there must be a contractual relation established between the owner of property on which a lien is claimed and the lienor to support a personal judgment against the owner in an action for the foreclosure of the lien.

53 Am.Jur., supra, § 417. See Lumber Co. v. Builders, 270 N.C. 337, 340, 154 S.E.2d 665, 667 (1967).

In the present case the complaint contains enough matter to sustain a cause of action for goods sold and delivered and to establish defendants' contractual obligation to pay for the goods. The pleading, therefore, did contain a sufficient statement of a cause of action entitling plaintiff to a personal judgment against the defendants. We hold that dismissal of a suit on account of plaintiff's inability to establish an alleged lien is improper where the complaint, in addition to averring the lien and praying for its foreclosure, states a good cause of action for labor performed or materials supplied.

The plaintiff by its second assignment of error contends that the court erred in granting summary judgment in favor of defendants on the merits as to plaintiff's claim for relief for indebtedness arising out of the unpaid account.

In support of their motion for summary judgment defendants submitted the affidavit of defendant Sandre Quigley indicating that the mortgage corporation from which she and her husband obtained a construction loan has refused to allow release of funds for the completion of improvements until the notice of claim of lien is removed from the record, and that the notice has created a substantial hardship for defendants. Plaintiff submitted no counter affidavit but relied on its complaint which was verified by its credit manager. Defendants argue that although the affidavit of Sandre Quigley deals predominantly with the notice of claim of lien, plaintiff is not entitled to rely on the allegations contained in its complaint once defendants' motion was properly filed and served. Because plaintiff relied on its complaint, defendants contend that plaintiff cannot be heard to complain of an adverse ruling. Defendants clearly misperceive the burden of the party moving for summary judgment.

First, a verified complaint may be treated as an affidavit if it meets the requirements of the rule for affidavits. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). Second, it is not necessary to decide in this case whether or not plaintiff's verified complaint qualifies as an affidavit. Even if it does not meet the requirements of the rule and may not be considered, defendants still have the burden of showing that there is no triable issue of fact and that they are entitled to judgment as a matter of law. "Hence, plaintiff may yet succeed in defending against the motion for summary judgment if the evidence produced by the movant and considered by the court is insufficient to satisfy the burden." Id. at 705, 190 S.E.2d at 194.

Thus, considering only the supporting documents of defendants, we conclude that the granting of summary judgment was erroneous. Defendants have failed to carry the movant's burden of establishing the lack of any triable issue of fact on defendants' alleged indebtedness to plaintiff.

Reversed.

WEBB and HILL, JJ., concur.