978-1285770178 Case Printout Case CPC-09-05

Miss.App.,2010.

30 Appeal and Error

30XVI Review

30XVI(F) Trial De Novo

30k892 Trial De Novo

30k893 Cases Triable in Appellate Court

30k893(2) k. Equitable proceedings. Most Cited Cases

A chancellor’s interpretation and application of the law is reviewed de novo.

[3] Mechanics’ Liens 257 115(4)

Subcontractors were barred from recovering from property owner for costs allegedly owed to subcontractors by the

general contractor; because the subcontractors failed to timely file stop notices, they were simple creditors of the

general contractor and were barred from recovery against the owner. West‘s A.M.C. § 85-7-181.

[4] Principal and Agent 308 1

some business or manage some affairs for another by his authority.

[5] Principal and Agent 308 1

308 Principal and Agent

[6] Principal and Agent 308 1

308 Principal and Agent

308I The Relation

308I(A) Creation and Existence

308 Principal and Agent

308III Rights and Liabilities as to Third Persons

[8] Principal and Agent 308 99

308 Principal and Agent

308III Rights and Liabilities as to Third Persons

[9] Principal and Agent 308 124(1)

308 Principal and Agent

308III Rights and Liabilities as to Third Persons

308III(A) Powers of Agent

308 Principal and Agent

308III Rights and Liabilities as to Third Persons

308III(A) Powers of Agent

308k118 Evidence as to Authority

308k123 Weight and Sufficiency

William Albert Brown, Hernando, Gordon Charles Shaw, attorneys for Appellee.

Before MYERS, P.J., IRVING and GRIFFIS, JJ.

DISCUSSION

1. Stop Notices

als or services. Jones Supply Co. v. Ishee, 249 Miss. 515, 527, 163 So.2d 470, 475 (1964). No privity exists be-

tween a subcontractor and an owner. Corrugated Indus., Inc. v. Chattanooga Glass Co., 317 So.2d 43, 47

(Miss.1975). But Mississippi Code Annotated section 85-7–181 (Rev.1999) prescribes a remedy against the owner

for a subcontractor “who may have furnished materials used in the erection, construction, alteration, or repair of

any house” and who is not paid by the contractor. To exercise the remedy, the unpaid subcontractor must serve

The service of the stop notice invokes the subcontractor’s statutory remedy against the owner. Id. Absent such

notice, an owner has no obligation to a subcontractor who has provided materials or services pursuant to an

agreement with a contractor. Corrugated Indus. Inc., 317 So.2d at 47. And, if a subcontractor serves a stop notice

after the owner has paid the contractor the full amount due under the contract, the owner is not liable to the sub-

contractor. Id.; Miss.Code Ann. § 85-7-181.

[3] ¶ 10. On appeal, the subcontractors present several arguments as to why the owners should be liable notwith-

standing the subcontractors’ failure to timely file stop notices. The subcontractors present each argument as a sepa–

rate issue, but because all relate to the single overarching and dispositive issue of whether the chancellor erred in

finding that the subcontractors were barred from recovering from the Church, we shall address them together.

This provision applies to private construction contracts of one hundred thousand dollars or more. Miss.Code Ann. §

31-3-1 (Rev.2008).

¶ 12. The subcontractors fail to explain on appeal, however, why this was reversible error or what result section 31-

3-15 requires. Nor is reversible error intuitive, as the subcontractor’s remedy under section 85-7-181 is limited by its

own terms to “the amount that may be due upon the date of the service of [the stop] notice by such owner to the con–

tractor.” If anything, had the chancellor found the contract between the Church and NCS null and void, there would

be nothing owed to NCS by the Church, and the subcontractors could have no remedy against the Church under sec-

tion 85-7-181.

¶ 13. The subcontractors also argue that Engle Acoustic & Tile, Inc. v. Grenfell, 223 So.2d 613, 618 (Miss.1969),

frames the issue as whether the owners or the subcontractors were in the better position to prevent the subcontrac-

tors’ loss.FN4 This, however, was not the holding in Engle; there, the supreme court rejected the subcontractors’ ar–

150 So. 525 (1933), for this proposition.

¶ 14. Finally, the subcontractors argue that this result is simply unfair to them and that under our law even the most

diligent subcontractors may be denied a remedy against the owners. The supreme court, however, has addressed and

rejected this argument on numerous occasions. In Amerihost, the Court stated:

Id. at 365(¶ 13). Similarly, the supreme court in Engle noted that “[i]t is regrettably true that either the [subcontrac-

tors] will lose their labor and materials in the amounts stated or that the [o]wners will be forced to make a double

payment.” Engle, 223 So.2d at 618.

¶ 15. In summary, we find none of the arguments advanced by the subcontractors persuasive. Accordingly, we find

tors, the Church may be bound irrespective of whether the subcontractors failed to timely file stop notices. Aladdin

Const. Co., Inc. v. John Hancock Life Ins. Co., 914 So.2d 169, 174(¶ 7) (Miss.2005). Alternatively, the Church may

be bound if it created the “apparent authority” of NCS to act as its agent and to bind the Church in its dealings with

the subcontractors. Bailey v. Worton, 752 So.2d 470, 475(¶ 11) (Miss.Ct.App.1999).