Caldwell's Well Drilling, Inc. v. Moore , 79 N.C. App. 730 ( 1986 )

HEDRICK, Chief Judge.

Plaintiff contends that the trial court erred in denying its motion to amend its complaint. After the statutory time for amending pleadings as a matter of course has elapsed, a motion to amend a complaint pursuant to G.S. 1A-1, Rule 15(a) is addressed to the sound discretion of the trial judge and the denial of such motion is not reviewable on appeal absent a clear showing of abuse of discretion. Smith v. McRary, 306 N.C. 664, 295 S.E. 2d 444 (1982). In the present case, there is no showing that the trial court abused its discretion in denying the motion to amend plaintiffs complaint made when the case came on for hearing on defendants’ 12(b) motions to dismiss. In their answer, the Mc-Farlands alleged that they were acting as agents for the Moores in contracting with plaintiff to drill the well. The answer containing this information was filed on 4 January 1985 and plaintiff did not make its motion to amend to allege that the McFarlands were acting as agents of the Moores until 22 April 1985. There is nothing in the record to indicate why plaintiff waited so long to make its motion to amend. This assignment of error has no merit.

Plaintiff also contends that the trial court erred in dismissing its claim against the Moores to have a lien imposed on the property. It is well settled that a statutory lien pursuant to Chapter 44A of the General Statutes “is incident to and security for a debt. There can be no lien in the absence of an underlying debt.” Lowe’s v. Quigley, 46 N.C. App. 770, 772, 266 S.E. 2d 378, 379 (1980) (citation omitted). Without a contract, the lien does not exist. Id. Plaintiff has the burden of showing not only that it performed labor or furnished materials for the making of an improvement on defendants’ property, but also that the labor was performed or the materials were furnished pursuant to a contract, either express or implied, with the owners of the property. G.S. 44A-8; Electric Co. v. Robinson, 15 N.C. App. 201, 189 S.E. 2d 758 (1972).

In the present case, plaintiff sought a personal judgment against the McFarlands based on its contract to drill a well on the property and to have the personal judgment against the McFar-lands declared to be a specific lien on the property allegedly conveyed by the McFarlands to the Moores. There is no allegation in the complaint that the Moores are indebted to plaintiff in any amount. If plaintiff had pursued its claim for a personal judgment against the McFarlands and had protected its claim of lien against the property in accordance with the statute, it would be entitled to have any personal judgment obtained against the McFarlands pursuant to the contract for the drilling of the well declared to be a specific lien against the property wherein the well was drilled. Plaintiff, however, did not preserve its claim against the McFarlands. It abandoned its claim for a personal judgment based on the contract to drill the well by taking a voluntary dismissal of its claim against the McFarlands. Thus, when the trial judge granted the Moores’ 12(b) motion to dismiss, there was no debt or judgment to be secured by a lien on the property in question. Since the court necessarily considered matters outside the pleadings, the voluntary dismissal of plaintiffs claim for personal judgment against the McFarlands, the 12(b)(6) order was converted to a summary judgment for defendants Moores with respect to the dismissal of plaintiff’s claim to have a lien imposed on the property. G.S. 1A-1, Rule 12(b).

The order appealed from is affirmed.

Affirmed.

Judge PARKER concurs. Judge WEBB dissents.