Vol. 8, No. 3, Pg. 20. Taking the Offensive Against a Mechanic's Lien.

• Author: By W. Leighton Lord III

South Carolina Lawyer

1996.

Vol. 8, No. 3, Pg. 20.

Taking the Offensive Against a Mechanic's Lien

20TAKING THE OFFENSIVE AGAINST A MECHANIC'S LIENBy W. Leighton Lord IIIA non-statutory offensive and pro-active procedure to remove a mechanic's lien from property was first recognized by the South Carolina Supreme Court in Sea Pines Co. v. Kiawah Island Co., 268 S.C. 153, 232 S.E.2d 501 (1977).

On December 19, 1995, the Court of Appeals in Cedar Creek Properties v. Cantelou Associates, Inc. S.C. _ Op. 2430, 465 S.E.2d 774 (Ct. App. 1995), significantly strengthened the so-called Sea Pines action by removing any doubt as to the ability of a party bringing a Sea Pines action to collect attorneys' fees.

This article will summarize how a Sea Pines action works and how it works even better after Cedar Creek. The following scenario is, of course, entirely fictional and is in no way based on real people or events.

BROWNWATER: THE SAGA

Developer Bill Jefferson has a serious problem. He is developing a single family community on the Wateree River known as "BrownWater." Jefferson has just completed Phase I of the development, and BrownWater has been a great success. He is selling several lots a week in Phase I, has just purchased the land to build a promised golf course and is in the process of arranging financing for construction of the course.

THE PROBLEM

All is well except for a dispute that Jefferson is having with his New York-based road contractor, Alfonse Pothole. Jefferson has decided to hire a local road contractor for the golf course and for additional phases of BrownWater due to a host of problems with Pothole. Nevertheless, he has paid Pothole all amounts due for materials and labor under his contract that was limited to Phase I only.

In retaliation, and as a ploy to get Jefferson to hire him to pave the golf course area and the future phases of BrownWater, Pothole has filed a mechanic's lien under S.C. Code Ann. § 29-5-10 et seq. (1991) (statute) claiming an amount due of $600,000 for labor and materials supplied. There is no basis under the statute for Pothole's claim. For one thing, Pothole's contract was only for $60,000 and that has been paid in full.

Furthermore, there has been no additional work done or additional materials furnished that require further payment. Pothole simply feels he is entitled to the future...