IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 98-CA-00762-COA

AMERIHOST DEVELOPMENT, INC. APPELLANT

v.

BROMANCO, INC.; K & K BATHTUB REPAIR; DIAMOND DOOR GROUP,

INC.; DEER PARK FENCE & INSULATION CO.; GREY PLUMBING, INC.;

S & L CREATIVE CARPET; VICKSBURG PAINT & GLASS COMPANY;

PRECISION ROOF SERVICES, INC.; VINZANT CONSTRUCTION;

CONTROLLED AIR COMFORT COMPANY; SOUTHERN ELECTRIC

SUPPLY COMPANY, INC.; WRIGHT'S PAINTING; BRUCE COPES

ELECTRICAL, INC.; METROPOLIS BUILDERS SUPPLY; PARADISE

POOLS & SPAS; BARRY LANDSCAPE, INC.; UNITED PIPING, INC.;

UPTON PLASTERING; MID- SOUTH LUMBER & SUPPLY, INC.; W. J.

RUNYON & SON, INC.; TESA/ENTRY SYSTEMS, INC. AND GEE &

STRICKLAND, INC. APPELLEES

DATE OF JUDGMENT: 4/15/1998

TRIAL JUDGE: HON. FRANK G. VOLLOR

COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: PHIL B. ABERNETHY

JEFFREY TODD WAYCASTER

RICHARD M. DYE

ATTORNEYS FOR APPELLEES: PHIL B. ABERNETHY

ROBERT R. BAILESS

CHARLES L. BALCH III

JAMES L. PENLEY JR.

LUCIUS B. DABNEY JR.

NATURE OF THE CASE: CIVIL - CONTRACT

TRIAL COURT DISPOSITION: CASINO HELD LIABLE TO SUBCONTRACTOR FOR

AMOUNTS PAID TO GENERAL CONTRACTOR

FOLLOWING STOP PAYMENT NOTICE GIVEN BY

SUBCONTRACTOR

DISPOSITION: AFFIRMED IN PART AND REVERSED AND REMANDED

IN PART AND REVERSED AND RENDERED IN PART -

02/08/2000

MOTION FOR REHEARING FILED: 2/22/2000; denied 6/20/2000

CERTIORARI FILED: 7/5/2000; granted 9/28/2000

MANDATE ISSUED:
BEFORE McMILLIN, C.J., IRVING, AND THOMAS, JJ.

THOMAS, J., FOR THE COURT:

¶1. Amerihost Development, Inc. appeals the judgment of the Circuit Court of Warren County, raising the

following assignments as error:

I. WHETHER A SINGLE STOP PAYMENT NOTICE EXERCISING THE RIGHTS OF ONE

SUBCONTRACTOR PURSUANT MISS. CODE ANN. § 85-7-181 CONFERS THE BENEFITS

AND PROTECTIONS OF SAID STATUTE UPON ALL SUBCONTRACTORS AND

SUPPLIERS REGARDLESS OF WHETHER EACH SUBCONTRACTOR OR SUPPLIER

INDIVIDUALLY PROVIDED NOTICE OF THEIR RESPECTIVE CLAIMS.

II. WHETHER THE TRIAL COURT ERRED IN AWARDING PRE AND POST-JUDGMENT

INTEREST OF FUNDS INTERPLED AND ON DEPOSIT WITH THE COURT CLERK.

III. WHETHER THE TRIAL COURT ERRED IN ITS AWARD OF ATTORNEYS' FEES.

¶2. Bruce Copes Electric, Inc., on cross-appeal, appeals the judgment of the Circuit Court of Warren

County and raises the following assignment as error:

IV. WHETHER THE TRIAL COURT ERRED IN FINDING THAT BRUCE COPES

ELECTRIC, INC. WAS NOT ENTITLED TO ANY OF THE FUNDS INTERPLED.

¶3. As to the appeal of Amerihost Development, Inc., finding reversible error, we reverse and render in

part and reverse and remand in part. As to the cross-appeal of Bruce Copes Electric, Inc., finding no error,

we affirm.

FACTS

¶4. Amerihost Development, Inc., an Illinois corporation licensed to operate in Mississippi, is the owner and

developer of a construction project known as Days Inn, Rainbow Park, in Vicksburg, Mississippi. On July

25, 1994, Amerihost entered into a construction contract with the Ohio corporation Bromanco, as general

contractor of the hotel project. The original lump sum contracted price of the project was $1,971,977.

However, as the project progressed change orders increased the original contracted price to a new total of

$2,011,082.83. Amerihost solely financed the project; therefore, no construction lender was involved.

Amerihost made irregular inspections of the project site through its personnel, but nevertheless trusted and

relied heavily on Bromanco's expertise as the general contractor. The contract specified that periodic

progress payments would be made to Bromanco as the project progressed minus a ten percent retainage.

The contract required that Bromanco submit periodic applications for payment with stated completion

percentages and the appropriate lien waivers prior to Amerihost's remittance of payment. A total of eight

progress payments were made to Bromanco between October 13, 1994 and April 30, 1995. Initially
Bromanco provided the appropriate applications and the project progressed without any apparent

problems of major significance. However, as the project neared completion Bromanco began to submit

applications for payment without complete lien waivers and in fact submitted some duplicate lien waivers.

Yet, no stop notices were sent during this period to Amerihost by any subcontractors, materialmen, or

suppliers until mid April 1995.

¶5. On April 17, 1995 Amerihost received a statutory stop payment notice pursuant to Miss. Code Ann.

§ 85-7-181 (1972) in the amount of $25,000 from Wright's Painting Company, one of the subcontractors

hired by Bromanco. The dispute between Wright, Amerihost, and Bromanco was subsequently resolved

without Wright having ever participated in the instant action. On April 30, 1995, Bromanco submitted its

last application for payment on the project in the amount of $272,819.13. On May 5, 1995, Amerihost

received a notice letter from Southern Electric Supply Company informing Amerihost that they had not

been paid approximately $30,881.56 by Bromanco and that said letter should be considered Southern's

notice under applicable state statutes and a demand for immediate payment. The two stop payment notices

received from Wright's Painting and Southern Electric totaled approximately $55,881.56. On May 15,

1995, Amerihost paid Bromanco the $272,819.13 requested on April 30, 1995, but Amerihost still

retained approximately $110,330.20. Despite that the project was substantially complete, Bromanco

nevertheless defaulted as general contractor and failed to complete the project. As a result Amerihost hired

its own work force to finish the project and expended approximately $19,844.62 of the retainage to

complete the project leaving a retainage of $90,485.58.

¶6. Between May 15, 1995 and November 15, 1995, Amerihost received numerous stop payment notices

and/or bills of account from several of the subcontractors and materialmen originally hired by Bromanco to

work on the project. Consequently, on November 15, 1995, Amerihost interpled the remaining retainage of

$90,485.58 into the registry of the Warren County Circuit Court.

ANALYSIS

I.

WHETHER A SINGLE STOP PAYMENT NOTICE EXERCISING THE RIGHTS OF ONE

SUBCONTRACTOR PURSUANT MISS. CODE ANN. § 85-7-181 CONFERS THE BENEFITS

AND PROTECTIONS OF SAID STATUTE UPON ALL SUBCONTRACTORS AND

SUPPLIERS REGARDLESS OF WHETHER EACH SUBCONTRACTOR OR SUPPLIER

INDIVIDUALLY PROVIDED NOTICE OF THEIR RESPECTIVE CLAIMS.

¶7. Amerihost argues that the trial court erred in its interpretation of Miss Code Ann. § 85-7-181. In

reaching its decision, the trial court interpreted § 85-7-181 as conferring the rights stated within that statute

upon all subcontractors, materialmen and suppliers who had worked on the project despite whether each

had availed themselves individually of the express terms of that statute's notice requirements once the owner

is in receipt of at least one notice from anyone of them. This interpretation does not take into account that

the lone notice merely asserts that individual subcontractor's amount in controversy and is silent with respect

to the individual claims, if any, of the other subcontractors, materialmen, and suppliers. Particularly, in this

case two individual notices, each asserting its own distinct claims and nothing more, were sent by separate

subcontractors and suppliers: Wright's Painting on April 17, 1995 and Southern Electric Supply on May 5,

1995. Both notices contained sufficient information under the stop notice statute, § 85-7-181, to qualify as

notices under that statute. We quickly note that Southern Electric Supply was initially a supplier of a
subcontractor, Copes Electric, rather than a supplier of the general contractor, Bromanco, and therefore

not entitled to the protections of § 85-7-181. Material suppliers are general creditors in the absence of the

afforded protections of § 85-7-181 covering subcontractors or materialmen of the general or prime

contractor as subcontractors or materialmen to another subcontractor are not covered within the section.

Associated Dealers Supply, Inc. v. Mississippi Roofing Supply, Inc., 589 So. 2d 1245, 1247 (Miss.

1991). However, by virtue of a joint payment agreement entered into on February 8, 1995 between

Southern, Bromanco, and Copes Electric, wherein Bromanco gave assurances that future payments for

materials would be made jointly between Southern and Copes Electric, Southern was elevated from a

supplier of a subcontractor to a supplier of the general contractor. Southern's elevated status, however,

does not afford them the protections contained in § 85-7-181 for materials supplied and expenses incurred

prior to the February 8, 1995 agreement.

¶8. The trial court concluded, with regard to the first notice received on April 17, 1995, that once an

owner/developer is presented with a single statutory stop payment notice by one subcontractor then that

lone notice places the owner/developer on notice that something is potentially afoul with the entire project;

therefore, all funds due the general contractor at the time the notice is received must be bound in the hands

of the owner until the matter is resolved. Amerihost argues that under the trial court's interpretation those

subcontractors, materialmen and suppliers who failed to adhere to the express terms of the statute are

nevertheless allowed to unjustly piggyback on the lone stop payment notice submitted by Wright. Amerihost

asserts that this interpretation not only is contrary to the intended purpose of the statute as supported within

the statute's express language but is also contrary and counter to public policy considerations affecting the

construction industry in Mississippi.

¶9. Mississippi Code Annotated § 85-7-181 (1972) is as follows:

When any contractor or master workman shall not pay any person who may have furnished materials

used in the erection, construction, alteration, or repair of any house, building, structure, fixture, boat,

water craft, railroad, railroad embankment, the amount due by him to any subcontractor therein, or

the wages of any journeyman or laborer employed by him therein, any such person, subcontractor,

journeyman or laborer may give notice in writing to the owner thereof of the amount due him and

claim the benefit of this section; and, thereupon the amount that may be due upon the date of the

service of such notice by such owner to the contractor or master workman, shall be bound in the

hands of such owner for the payment in full, or if insufficient then pro rata, of all sums due such

person, subcontractor, journeyman or laborer who might lawfully have given notice in writing to the

owner hereunder, and if after such notice, the contractor or master workman shall bring suit against

the owner, the latter may pay into court, the amount due on the contract; and thereupon all persons

entitled hereunder, so far as known, shall be made parties and summoned into court to protect their

rights, contest the demands of such contractor or master workman and other claimants; and the court

shall cause an issue to be made up and tried and direct the payment of the amount found due in

accordance with the provisions hereof; or in case any person entitled to the benefits hereof, shall sue

the contractor or master workman, such person so suing shall make the owner and all other persons

interested, either as contractors, master workmen, subcontractors, laborers, journeymen or

materialmen, so far as known, parties to the suit (and any such party not made a party in any suit

hereunder authorized may intervene by petition), and, thereupon the owner may pay into the court the

amount admitted to be due on the contract or sufficient to pay the sums claimed, and the court shall

cause an issue to be made up and award the same to the person lawfully entitled; in either case the
owner shall not be liable for costs; but if the owner, when sued, with the contractor or master

workman, shall deny any indebtedness sufficient to satisfy the sums claimed and all costs, the court

shall, at the instance of any party interested, cause an issue to be made up to ascertain the true amount

of such indebtedness and shall give judgment and award costs, and reasonable attorney's fees,

according to the rights of the several parties in accordance herewith. In case judgment shall be given

against such owner, such judgment shall be a lien, from the date of the original notice, and shall be

enforced as other liens provided in this chapter. The owner shall not be liable in any event for a

greater amount than the amount contracted for with the contractor.

The provisions of this section allowing the award of attorney's fees shall only apply to actions the

cause of which accrued on or after July 1, 1987.

¶10. In arguing its interpretation of § 85-7-181, Bromanco, Inc. places great weight on the legislative

history of the section, specifically the amendments to the 1906 Code by the 1918 Act. The present statute

is essentially the same as that which was amended by the 1918 Act. Bromanco argues that with the

language additions contained in the 1918 Act, so also came the legislative intent to broaden the statute's

protections to include all members of the protected class of materialmen and subcontractors once a single

notice is sent and received. Under Bromanco's interpretation, the first solitary notice asserting one member's

individual right of lien is also for the benefit of all subcontractors, suppliers, and laborers who had the right

to file a stop notice, but failed to actually file their respective notices.

¶11. First we note that Miss. Code Ann. § 85-7-181 is the product of statutory enactment dating to 1880

and is therefore open to statutory construction:

This particular statute was first passed in 1880. However, Mississippi had a mechanics' lien act as

early as 1838. The lien under Sec. 372 is purely a creature of statute and did not exist at common

law. In its absence materialmen and laborers would be only general creditors of the contractor.

Although the statute should be construed liberally to effectuate its purposes, laborers and materialmen

have no lien on the money owed by the owner to the contractor until they give the statutory stop

notice to the owner. Two systems of liens have been adopted by statutes in various states for the

protection of materialmen and laborers. One is known as the Pennsylvania system. It confers a direct

and independent lien, irrespective of the rights of the principal contractor. The other system, called the

New York system, which is that created by Section 372, confers a lien by subrogation to the rights of

the independent contractor. The materialmen or laborers under such a statute are entitled to a lien only

when the contractor is entitled to one, and there is something due or to become due to the principal

contractor from the owner.

Chancellor v. Melvin, 211 Miss. 590, 599, 52 So. 2d 360, 364-65 (1951) (citations omitted).

¶12. While the current statutory construction is open to differing interpretations, we do have at our disposal

another rule of statutory construction which may be used by this Court in our efforts to ascertain the intent

of the legislature and the meaning of the statute before us today. When the necessity for construction arises:

It is generally regarded as permissible to consider the consequences of a proposed interpretation of a

statute, where the act is ambiguous in terms and fairly susceptible of two constructions. Under such

circumstances, it is presumed that undesirable consequences were not intended; to the contrary, it is

presumed that the statute was intended to have the most beneficial operation that the language
permits. It is accordingly a reasonable and safe rule of construction to resolve any ambiguity in a

statute in favor of a beneficial operation of the law, and a construction of which the statute is fairly

susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil, and

injurious consequences.

73 AM JUR. § 258 page 427-28 (1974); See Dawson v. Townsend & Sons, Inc., 735 So. 2d 1131

(¶37) (Miss. Ct. App. 1999) (holding that when a statute is ambiguous and subject to multiple

interpretations, courts need to understand the possible effects in order not to interpret the statute in such a

way as to cause absurd results); Chandler v. City of Jackson Civil Service Comm'n, 687 So. 2d 142,

144-45 (Miss. 1997) (holding that when construing a statute, all possible repercussions and consequences

of construction should be considered); Evans v. Boyle Flying Serv., Inc., 680 So. 2d 821, 825-26 (Miss.

1996) (holding that in construing statutes, unthought of results must be avoided if possible, especially if

injustice follows, and unwise purpose will not be imputed to legislature when reasonable construction is

possible); Allred v. Webb, 641 So. 2d 1218, 1222 (Miss. 1994) (holding that when no valid reason exists

for one of two possible constructions of statute, interpretation with no valid reason ought not be adopted);

McCaffrey's Food Mkt., Inc. v. Mississippi Milk Comm'n, 227 So. 2d 459, 465 (Miss. 1969) (holding

that the statutory construction which is most beneficial and which will avoid objectionable consequences will

be adopted).

¶13. We quickly note that under Bromanco's argument and submitted interpretation, owners who have

hired a general contractor to ensure the actual construction of the project would suddenly have themselves

vaulted into the shoes of the general contractor regardless of whether they have the expertise to complete

the project once a single stop payment notice is received. This would circumvent the precise reason that

general contractors are hired. Owners would be left with the arduous task of obtaining information on the

current work performed, the supplies and materials provided and those current amounts due to the various

subcontractors, materialmen and suppliers.

¶14. In addressing the nature of the relationship between a Amerihost and Bromanco, the trial court held

that Amerihost negligently or wilfully failed to follow the funds into the project and that such failure

proximately caused the losses claimed by the subcontractors and materialmen. The trial court concluded

that Amerihost, as both owner and lender, was liable for all unpaid subcontractor's claims, even if such

subcontractor's claims exceeded the contract amount due to its failure to properly monitor the progress of

the work and payments to Bromanco as applied under the holding reached in First National Bank of

Greenville v. Virden, 208 Miss. 679, 45 So. 2d 268 (1950). Virden is, however, distinguishable from the

case before us today. The Virden case was decided on the context of mortgage law when an issue of

preference arises between competing liens: a deed of trust on the project held by a bank or mortgagee on

advances made under a previously executed mortgage and a mechanic's or materialmen's lien on materials

and labor supplied on the project. Virden, 208 Miss. at 685, 45 So. 2d at 270. In Virden, the supreme

court held that where a bank accepts a deed of trust on property from the contractor and advances

proceeds to the contractor for housing lots and materials to be used in the construction of houses, but failed

to see that the funds were actually going into the housing construction and merely remitted loan proceeds as

the contractor requested them, then the bank's lien was only superior to liens of materialmen to the extend

that the loan proceeds actually went into the project. Id.

¶15. However, in the case sub judice we are faced with deciding an issue not from a mortgage standpoint

and the resulting priorities of liens between a mortgagee and a materialman, as the Amerihost project was
privately funded, but rather from that of mechanics' lien law as was addressed in Engle Accoustic & Tile,

Inc. v. Grenfell, 223 So. 2d 613 (Miss. 1969). While Engle may not fall squarely on all fours, it does

however have sufficient analysis to afford us the appropriate avenue to aid us in our decision. In Engle, suit

was brought by several subcontractors against the project's owners and architect for balances due them as

a result of the prime contractor's default. The owners, Dr.s Melvin, Marland, and Grenfell, entered into a

contract with Fran Builders, a partnership composed of Guy Lowe, Jr. and Hudson Turner, the prime

contractor, on November 23, 1965 for the construction of a multistory office building in Jackson,

Mississippi. The construction contract was on a cost plus fixed percentage basis without a performance

bond. Various subcontractors and materialmen were employed by Fran to work on the project and supply

building materials. As the project progressed, Fran made nine applications for payment for labor and

materials furnished. Each application was submitted to the owner's architect for verification before payment

was remitted. In late August 1966, it became apparent that Fran had not paid all laborers and materialmen

involved in the project and work ceased shortly thereafter. Fran was later declared bankrupt. None of the

laborers or materialmen filed a stop payment notice on their claims until after the owners had paid Fran in

full under its ninth and last application for payment.

¶16. The Mississippi Supreme Court, in reaching a favorable decision for the owners, acknowledged the

difficult consequences resulting from its decision: "[I]t is regrettably true that either the appellants will lose

their labor and materials in the amounts stated or the Owners will be forced to make a double payment. It

does not necessarily follow, however, that the Owners were in the best position to have prevented the

loss." Engle, 223 So. 2d at 618. As was the case in Amerihost, the owners in Engle, initiated the overall

project and trusted and relied heavily upon their prime contractor to complete the contracted project

without any difficulties or problems. The Engle court further acknowledged that the subcontractors and

materialmen also relied on and trusted Fran, but their reliance and trust were as equally misguided and

displaced as were that of the owners. However, in ultimately deciding which party, the owners or the

laborers and materialmen, were in the best position to prevent the resulting losses, the Mississippi Supreme

Court held that none of the subcontractors or materialmen had availed themselves of a specific remedy

afforded them by statute, specifically Miss. Code 1942 Ann. § 372 (1956). Id. The court went on to hold

that so long as advance payments to the prime contractor by the owners, whether "intentional or

unintentional," extinguish debt and are paid prior to receipt of the statutory stop payment notices, liability is

precluded on the part of the owners. Id. at 619.

¶17. As was the basis for the supreme court's holding in Engle, subcontractors and materialmen are not left

without recourse under the current statutory construction of § 85-7-181 provided they invoke its benefits

and protections though their own due diligence in accordance with the statutory requirements. Those who

failed to avail themselves of its benefits now seek to circumvent the statutory requirements and ride the

coat-tails of those subcontractors and materialmen who actually asserted their rights. To allow such a result

would offend justice. See Riley Bldg. Supplies, Inc. v. First Citizens Nat. Bank, 510 So. 2d 506, 508-09

(Miss. 1987) (holding that law governing materialmen's liens is product of enactments of legislature and

materialmen hold liens against property only to extent that they have brought themselves within terms of

statute); Frierson Bldg. Supply Co. v. Homestead Sav. & Loan Ass'n., 193 So. 2d 421, 423-24 (Miss.

1966) (holding in action to recover for building materials furnished to vendor-builder, it was incumbent

upon vendor's materialman to comply with lien statutes, and injustice would arise to simply allow

enforcement of lien against innocent purchasers for value who secured loan on property without actual

notice of claim which materialman failed to place on record); Jones Supply Co. v. Ishee, 249 Miss. 515,
521-22, 163 So. 2d 470, 472-73 (1964) (holding that statutory prerequisites must be strictly complied

with to gain statutory benefits and that upon failure to take proper action required by statute as condition

precedent to benefits of statute, their remedies are those of common creditors). With this in mind we hold

that it would be destructive of the overall purpose of the construction of § 85-7-181 to hold, as the trial

court did, that the legislature intended for one notice to serve as right of lien by all potential subcontractors

and materialmen who have labored and provided supplies but have not followed the requirements of the

same. Accordingly, we reverse and render the decision.

II.

WHETHER THE TRIAL COURT ERRED IN AWARDING PRE AND POST-JUDGMENT

INTEREST OF FUNDS INTERPLED AND ON DEPOSIT WITH THE COURT CLERK.

¶18. In view of our disposition of the previous issue, the present issue of whether the trial court erred in

awarding pre and post-judgment interest on the interpled funds is for naught and now moot.

III.

WHETHER THE TRIAL COURT ERRED IN ITS AWARD ATTORNEYS' FEES.

¶19. Amerihost argues that the trial court erred in awarding attorneys' fees to the appellees when, in fact,

Amerihost is entitled to an award of attorneys' fees and costs by virtue of its asserted mere-disinterested

stake holder status. The trial court's ruling entailed an award of attorneys' fees grounded in law under Miss.

Code Ann. § 85-7-181 to "[t]he laborers, subcontractors and persons who furnished materials and

established liens," and a denial of an award of attorneys' fees to Amerihost, whom the trial court concluded

had "actively opposed the claims presented" and therefore was not a mere-disinterested stake holder.

However, both findings, the award of attorneys' fees to the laborers, subcontractors and materialmen and

the denial of attorneys' fees to Amerihost, were grounded in erroneous interpretations of § 85-7-181 and

therefore is of no substance in this issue. We note, however, that Amerihost's position opposing those

claims presented after its May 15, 1995 payment of $272,819.13 to Bromanco was a defensive stance

against the claims of those subcontractors and materialmen who sought to avail themselves of the

protections of § 85-7-181 by virtue of the single stop notice sent by Wright's Painting Company on April

17, 1995. We held this interpretation to be incorrect.

¶20. An award of attorneys' fees and costs in favor of the party representing interpleader action against the

funds interpleaded into the court registry is a discretionary matter lying with the trial court. See Hartford

Acc. & Indem. Co. v. Natchez Inv. Co., 161 Miss. 198, 132 So. 535, 539 (1931). The court may not,

however, allow attorneys' fees to materialmen and subcontractors for attorneys representing their separate

interests. Id.; But see, e.g. Miss. Code Ann. § 85-7-181 (1972) (statutory provision allowing an award of

attorneys' fees to prevailing laborers and materialmen who have initiated suit as a result of an owner's denial

of indebtedness). Amerihost argues that it not only instituted the interpleader action, but also interpled into

the court registry sufficient amounts to cover those properly exercised claims which were timely submitted

under the requirements of § 85-7-181. See Maryland Casualty Company v. Sauter, 377 F. Supp. 68,

70 (N.D. Miss. 1974) (holding that a party who has properly brought an interpleader action may be entitled

to an award of attorneys' fees); Perkins State Bank v. Connolly, 632 F. 2d 1306, 1311 (5th Cir. 1980)

(holding that party who initiates an interpleader action and qualifies as a mere disinterested stake holder

may be awarded reasonable attorneys' fees); Cogan v. U.S., 659 F. Supp. 353, 354 (S.D. Miss. 1987)
(holding that a mere disinterested stake holder who properly brings an interpleader action may be awarded

reasonable attorneys' fees).

¶21. Whether the facts and circumstances surrounding this issue justifies a determination that Amerihost is a

mere disinterested stake holder warranting an award of attorneys' fees is a factual finding as yet undecided

under a proper interpretation of law that is consistent with this opinion. An award of attorneys' fees would

be contingent upon that finding. Therefore, we remand this issue to the lower court for a factual finding as to

whether Amerihost's role in the interpleader proceedings arises to that of a mere disinterested stake holder.

IV.

WHETHER THE TRIAL COURT ERRED IN FINDING THAT BRUCE COPES ELECTRIC,

INC. WAS NOT ENTITLED TO ANY OF THE FUNDS INTERPLED.

¶22. Bruce Copes Electric, Inc. argues that the lower court erred in finding that Copes was not entitled to

any of the funds interpled by Amerihost Development, Inc. The lower court concluded that Copes had not

proven that it was entitled to any of the interpled funds by virtue of the lack of credible evidence presented

by Copes to support a claim against the interpled funds. The lower court held that the credible evidence

established that Copes defaulted on its subcontract with Bromanco and failed to complete the project. The

lower court further concluded that while Bromanco hired employees of Copes to complete the project, no

change orders were executed by anyone authorizing the work Copes asserts was performed nor was any

of the work included in the stop notice.

¶23. Having made a detailed review of the record concerning Copes's claim, we hold that the lower court

had before it substantial evidence from which to deny Copes's claim and said ruling was not against the

overwhelming weight of the credible evidence. This assignment of error is without merit.

CONCLUSION

¶24. We reverse and render on the assignment of error raised in Issue I. It was error to hold that the notice

of claim by one subcontractor inures to the benefits of those subcontractors and materialmen who had not

complied with the notice requirements of § 85-7-181 and provided notice unaided by the diligence of

others. Consequently, the additional $272,813.83 ordered deposited into the registry of the circuit court for

the $272,813.83 remitted on May 15, 1995 to Bromanco and prior to any additional stop payment notices

was error. We reverse and render on the assignment of error raised in Issue II regarding an award of pre

and post-judgment interest. We reverse and remand on the assignment raised in Issue III for additional

findings on the issue of whether Amerihost meets the requirements of a mere disinterested stake holder. The

only fund from which the claimants may lay claim, is the $90,485.59 originally interpled into the registry of

the court by Amerihost on November 15, 1995. With respect to the claim asserted by Southern Electric

Supply Co., we affirm the trial court's conclusion of law contained in part E of its findings of fact and

conclusions of law entered on February 13, 1998. Additionally, given the findings and conclusions reached

in part E with respect to Southern's status as a supplier of the general contractor by virtue of the Joint

Payment Agreement of February 8, 1995, we hold that the letter sent by Southern Electric Supply Co. on

May 4, 1995 to Amerihost qualifies as a stop payment notice affording them the benefits of § 85-7-181 but

limited to claims on materials supplied after February 8, 1995. We affirm the trial court's findings with

respect to Copes Electric and its decision denying Copes Electric their asserted claim.
¶25. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS REVERSED AND

RENDERED IN PART; REVERSED AND REMANDED IN PART AND AFFIRMED IN

PART FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS ARE

ASSESSED EQUALLY AMONG THE PARTIES.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, DIAZ, IRVING, AND PAYNE,

JJ., CONCUR. LEE AND MOORE, JJ., NOT PARTICIPATING.