Bibler Masonry Contractors, Inc. v. J. T. Turner Construction Co., Inc. ( 2017 )

FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 6, 2017
In the Court of Appeals of Georgia
A16A2094. BIBLER MASONRY CONTRACTORS, INC. v. J. T.
TURNER CONSTRUCTION CO., INC. et al.
BRANCH, Judge.
After Bibler Masonry Contractors, Inc., finished its work as a subcontractor on
a project to renovate the Savannah Law School, it signed — and contends it
backdated — a lien waiver in anticipation of final payment from the general
contractor. The contractor, however, failed to pay Bibler, and Bibler filed an affidavit
of non-payment with the clerk of court but did so more than 60 days past the date
shown on the lien waiver. When Bibler attempted to enforce the lien against the
project owner, the trial court granted summary judgment in favor of the owner,
holding that the affidavit was untimely under the relevant 60-day deadline. On appeal,
Bibler argues that the 60 days should run from the day it actually signed the lien
waiver, not from the backdated date. We disagree and affirm the trial court’s ruling.
A party is entitled to summary judgment if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56
(c).
On appeal from the grant of summary judgment, we construe the
evidence most favorably towards the nonmoving party, who is given the
benefit of all reasonable doubts and possible inferences. The party
opposing summary judgment is not required to produce evidence
demanding judgment for it, but is only required to present evidence that
raises a genuine issue of material fact.
Ansley v. Raczka–Long, 293 Ga. 138, 140 (2) (744 SE2d 55) (2013) (citations
omitted); see also Home Builders Assn. of Savannah v. Chatham County, 276 Ga.
243, 245 (1) (577 SE2d 564) (2003). Our review is de novo. Ansley, 293 Ga. at 140(2).
The material facts are not in dispute. Appellee JMLS 1422, LLC, purchased
property to house the Savannah Law School and hired J. T. Turner Construction Co.
(“JTT”) as the general contractor to renovate the property. On May 23, 2013, JTT
hired Bibler as a subcontractor to perform masonry work on the project. By the end
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of the project, although Bibler had been paid for most of its work, Bibler asserted that
JTT had failed to pay Bibler $105,141.37. In exchange for a statutorily-required
“Waiver and Release Upon Final Payment,” JTT promised that the full and final
payment would be made. Bibler signed the waiver and release and dated it December
22, 2014; a witness also signed it. On February 17, 2015, Bibler forwarded the signed
waiver to JTT, again demanding that Bibler be paid in full; JTT appears to have
received the document that same day as evidenced by a stamp on its face. Payment
never came, however, and on February 27, 2015, Bibler filed an affidavit of non-
payment with the applicable clerk of court, which, as shown below, is required by
statute to suspend the effect of the waiver and release. On March 5, 2015, Bibler then
recorded its claim of lien in the amount of $105,141.37 against the project real estate
owned by JMLS, but no payment was ever received.
In May 2015, Bibler filed suit against JTT and JMLS, raising several claims
against JTT, and asserting a right to an accounting and to foreclose on the lien against
JMLS. Bibler also recorded a notice of its action to foreclose. Eventually Bibler
settled its claims against JTT, and entered into a consent judgment in the amount of
$105,141.37, thereby leaving only the lien and accounting claim pending against
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JMLS. Bibler and JMLS then filed cross motions for summary judgment on those
claims.
Although the trial court agreed that Bibler had established a prima facie case
that it complied with its subcontract but was not paid in full, the trial court found that
Bibler’s affidavit of non-payment was untimely in that it was not filed within 60 days
of execution of the waiver and release as required by OCGA § 44-14-366 (f) (1). In
so doing, the court found
that the only evidence in the record as to the date of the execution of the
Waiver and Release is the date contained on the face of the document,
that being December 22, 2014. At best, Bibler has produced an affidavit
indicating that Bibler submitted an executed Waiver to [JTT] on
February 17, 2015. This submission date, however, sheds no additional
light on the question of when the document was actually executed.
The court therefore granted summary judgment in favor of JMLS. On motion for
reconsideration, Bibler filed an additional affidavit in which the person who signed
the waiver and release on behalf of Bibler averred that she actually signed it on
February 17, 2015, but backdated it to December 22, 2014, the date of substantial
completion of the project, at the request of JTT. After the trial court denied Bibler’s
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motion for reconsideration, Bibler filed this appeal, which requires us to construe the
applicable statute.
When construing a statute, “we must presume that the General Assembly meant
what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751
SE2d 337) (2013) (citation and punctuation omitted). Thus if the language of the
statute “is plain and unambiguous, judicial construction is not only unnecessary but
forbidden.” Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003)
(citation omitted). Where terms of art are not involved, we look to the common and
customary usages of the words and their context. Zaldivar v. Prickett, 297 Ga. 589,
591 (1) (774 SE2d 688) (2015). “For context, we may look to other provisions of the
same statute, the structure and history of the whole statute, and the other law —
constitutional, statutory, and common law alike — that forms the legal background
of the statutory provision in question.” Id. (citation and punctuation omitted). Finally,
in this State “lien statutes in derogation of the common law must be strictly construed
in favor of the property owner and against the materialman.” Few v. Capitol
Materials, 274 Ga. 784, 785, (1) (559 SE2d 429) (2002) (footnote omitted).
The rationale is that there is usually no contract between the owner and
supplier. Instead, a materialman’s lien effectively permits the transfer of
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liability from the person who actually contracted with the materialman
for materials to be used in improving real estate to the owner of the
improved property.
Id. (punctuation and footnote omitted).
The lien statute, among other things, allows that once the labor, services, or
materials have been furnished by a materialman such as Bibler, a contractor may ask
the materialman “to execute a waiver and release in exchange for or in order to induce
making of final payment.” OCGA § 44-14-366 (a), (d). The waiver and release must
substantially follow a form provided for that purpose in the statute and it must include
certain notice language. Id. The statutory form, in relevant part, provides
UPON THE RECEIPT OF THE SUM OF $__________, THE
MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES
ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE
FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS
AGAINST ANY LABOR AND/OR MATERIAL BOND ON
ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED
BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID
CONTRACTOR FOR SAID PROPERTY.
GIVEN UNDER HAND AND SEAL THIS __ DAY OF _______, ___.
__________ (SEAL)
__________
__________
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(WITNESS) . . .
NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT,
YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE BEEN
PAID IN FULL THE AMOUNT STATED ABOVE, EVEN IF YOU
HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 60 DAYS
AFTER THE DATE STATED ABOVE UNLESS YOU FILE EITHER AN
AFFIDAVIT OF NONPAYMENT OR A CLAIM OF LIEN PRIOR TO
THE EXPIRATION OF SUCH 60 DAY PERIOD. THE FAILURE TO
INCLUDE THIS NOTICE LANGUAGE ON THE FACE OF THE
FORM SHALL RENDER THE FORM UNENFORCEABLE AND
INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A.
SECTION 44-14-366.
(Emphasis supplied). Thus, the materialman must sign and date the document and a
witness must sign it. Here, Bibler signed and dated the waiver and release, and a
witness signed. The mandatory statutory notice, which Bibler’s waiver and release
includes, requires that any affidavit of nonpayment must be filed within 60 days of
the date given on the form.
A subsequent subsection of OCGA § 44-14-366 undergirds the required notice
language found in the statutory form. Subsection (f) provides that once a waiver and
release has been signed, “it shall be binding against the claimant for all purposes,
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subject only to payment in full of the amount set forth in the waiver and release.”
OCGA § 44-14-366 (f) (1). The subsection continues,
Such amounts shall conclusively be deemed paid in full upon the earliest
to occur of: (A) Actual receipt of funds; (B) Execution by the claimant
of a separate written acknowledgment of payment in full; or (C) Sixty
days after the date of the execution of the waiver and release, unless
prior to the expiration of said 60 day period the claimant files a claim of
lien or files in the county in which the property is located an affidavit of
nonpayment, . . [.]
OCGA § 44-14-366 (f) (2). As shown, this subsection provides that any affidavit of
nonpayment must be made prior to the expiration of the 60-day period “after the date
of the execution of the waiver and release.” Id. And normally, to “execute” a written
agreement means “[t]o make (a legal document) valid by signing; to bring (a legal
document) into its final, legally enforceable form.” See Black’s Law Dictionary (10th
ed. 2014).
Bibler contends that the statute contains an ambiguity regarding whether an
affidavit of nonpayment must be filed within 60 days after the date shown on the
waiver and release or within 60 days after the date on which the materialman actually
signed the waiver and release. In that regard, Bibler contends that summary judgment
was not appropriate because there is an issue of fact as to when it actually signed the
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waiver and release. Bibler also argues that the words “and submit” found in the
required notice language in the required statutory form of the waiver and release
indicate that the 60-day period does not begin to run until it is delivered to the
contractor, which Bibler allegedly did on the same day that it signed and allegedly
backdated the document.
We hold that taken in context and construing the lien statute in favor of the
property owner, the statutory language, which includes the mandatory notice
language in the form, see 2008 Ga.L. § 5, shows that the materialman must file any
notice of non-payment within 60 days of the date shown on the waiver and release.
The plain language of the statute, including the form, shows that the materialman is
required to sign and date a lien waiver and release before a witness to that signature.
The most clearly written phrase of the statute is found in the form and it provides that
the period in which the affidavit of nonpayment must be filed is within “60 DAYS
AFTER THE DATE STATED ABOVE,” i.e., the date the materialman wrote on the
waiver and release when he or she signed the document before a witness. To read the
statute as proposed by Bibler would allow the materialman and the contractor to
create an issue of fact where none exists on the face of the lien waiver itself and give
the materialman a way to alter the dictated deadlines found in the statute to the
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detriment of the property owner. Although the definition of execution can mean the
day a document is signed, we find no basis for reading this statute to authorize
backdating a document to control a time deadline, and we will not assume that the
legislature so intended. The same clear language and above reasoning controls
Bibler’s second argument, that based on the wording of the notice language in the
form, the date Bibler mailed the waiver to JTT should establish the beginning of the
60-day period.
In sum, the trial court correctly held that the 60-day period at issue in this case
begins to run from the date shown on the waiver and release and that, therefore,
Bibler failed to file the affidavit of nonpayment necessary to pursue its lien against
JMLS within the statutorily-required time period.
Judgment affirmed. Ellington, P. J., and Mercier, J., concur.
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