Land Holdings I, LLC v. GSI Services, LLC ( 2019 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-CA-01620-SCT
LAND HOLDINGS I, LLC d/b/a SCARLET PEARL,
LLC
v.
GSI SERVICES, LLC
DATE OF JUDGMENT: 11/20/2017
TRIAL JUDGE: HON. JENNIFER T. SCHLOEGEL
TRIAL COURT ATTORNEYS: SAMUEL DEUCALION GREGORY
VINCENT J. CASTIGLIOLA, JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT: CABLE MATTHEW FROST
SAMUEL DEUCALION GREGORY
ATTORNEY FOR APPELLEE: VINCENT J. CASTIGLIOLA, JR.
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 01/17/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE RANDOLPH, P.J., MAXWELL AND BEAM, JJ.
RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:
¶1. Land Holdings I, LLC, d/b/a Scarlet Pearl, LLC (“Casino”), sought to expunge a lien
filed by GSI Services, LLC (“GSI”). The chancellor denied the Casino’s petition to expunge
the lien because GSI performed work at the Casino within ninety days of filing its lien.
Finding no error, we affirm the chancellor’s order.
FACTS AND PROCEDURAL HISTORY
¶2. The Casino contracted with Southern-ITS Corporation (“SITS”) for the installation
of a surveillance access-control system at the Scarlet Pearl Casino. SITS subcontracted with
GSI to complete portions of its contract. The contract provided that the Casino would pay
SITS $1,493,000, which included $1,242,000 for equipment and $251,000 for labor to install
the equipment. The Casino paid SITS the entire amount of the contract.
¶3. After receiving payment for the contract amount, SITS withheld payment of money
owed to GSI for the labor portion of the contract, contending that GSI had yet to perform all
work under the contract. SITS subsequently sued GSI for damages, and GSI filed a
counterclaim.
¶4. As a result of SITS’s withholding the labor component of its contract, GSI filed a
Notice of Claim of Special Lien against the Casino. GSI asserted that it performed labor
and/or services on several occasions within ninety days of filing its notice of lien. The Casino
sought to expunge the lien, alleging, inter alia, that GSI did not file its claim of lien within
ninety days of the last work performed.
¶5. Mark Wiggins, the operations manager with GSI, was the only witness who testified
at the hearing. Wiggins testified that he was GSI’s project manager for the Casino project
from its beginning, that his job was to supervise the work performed by GSI at the Casino,
and that he had personal knowledge regarding the work performed by GSI for the Casino
during 2015 and 2016.
¶6. Wiggins testified that, under its subcontract with SITS, “GSI was to provide both
equipment and labor in the form of installations for [the] access control system. . . .” The
contract began on July 10, 2015, and allotted 270 days for completion. However, GSI was
requested to expedite its work so that the Casino could open by December 9, 2015. Although
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the Casino was able to open on December 9, all of the work required by the contract had not
been performed.
¶7. GSI employee time records submitted as an exhibit at the hearing documented that
GSI employees performed work in 2016, after the Casino was operational. Wiggins testified
that the work performed in 2016 included labeling equipment, creating spreadsheets for all
the equipment, and preparing closeout documents depicting where the equipment was
located—all of which was required under the contract. Wiggins testified based on his
personal knowledge and through the use of employee time sheets that GSI employees
performed work at the Scarlet Pearl Casino on January 15, 2016, February 5, 2016, March
14, 2016, March 15, 2016, March 16, 2016, March 17, 2016, and March 18, 2016.1
According to Wiggins, all work was performed to provide equipment and installation of
equipment at the Casino, as the contract required.
¶8. Wiggins testified that the GSI time sheets provided accurate records of employee time
and responsibilities. Wiggins’s testimony and the GSI exhibits regarding hours worked at the
Casino were corroborated by and consistent with the evidence introduced by the Casino to
support its “punch-list” defense.
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Jonathan Boyd worked at the Casino on January 15, 2016, for a total of 6.25 hours,
preparing and installing a magnetic locking card reader and repairing an entry door. Larry
Williams worked a total of 7.25 hours on the access-control system on January 15, 2016, 1.5
hours on January 29, 2016, and 2.75 hours on February 5, 2016, labeling wires and finishing
a spreadsheet. Williams also worked with Wiggins on March 14, 2016, for 6.5 hours,
marking camera locations. Ian Jolliffe worked 3.75 hours on March 16, 2016, 2.98 hours on
March 17, 2016, and 3.5 hours on March 18, 2016, at the Casino. Wiggins testified that
Jolliffe was working on “as built drawings” indicating where the equipment was located in
the Casino—all work that was required of GSI by the contractor under the contract.
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¶9. Wiggins testified that the system was not fully functional to the Casino’s expectations
until sometime in March 2016. Wiggins testified that GSI had completed all necessary work
and provided all necessary equipment within ninety days of filing the lien.
¶10. The chancellor denied the Casino’s petition to expunge the lien, finding that the
evidence was “undisputed that GSI performed work at the Scarlet Pearl [Casino] as part of
its subcontract pursuant to the instructions of the contractor as late as March 18, 2016.”
STATEMENT OF ISSUE
¶11. The Casino raises only one issue on appeal: Whether the trial court erred in failing to
apply the dictates of Mississippi’s Little Miller Act, Mississippi Code Section 31-5-51 (Rev.
2010), and the federal Miller Act, 40 U.S.C.A. § 3133 (West 2006), to Mississippi’s
construction-lien-statute requirement of filing a lien within ninety days of the lien claimant’s
“last work performed.”
ANALYSIS
¶12. The Casino argues that GSI failed to file its notice of lien within ninety days of the
last work performed. The Casino claims the work done by GSI after December 2015 only
amounted to corrective measures and punch-list items and that the work was substantially
completed in December 2015. The Casino asks this Court to interpret Section 85-7-405 of
the Mississippi Code based on federal courts’ interpretations of the phrase “last work
performed” as it relates to the Miller Act and the Little Miller Act. See 40 U.S.C.A. § 3133
(West 2006); Miss. Code Ann. § 31-5-53 (Rev. 2010).
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¶13. Section 85-7-405 is Mississippi’s comprehensive lien statute and reads, in pertinent
part that
The filing for record of the claim of lien in the office of the clerk of the
chancery court of the county where the property is located within ninety (90)
days after the claimant’s last work performed, labor, services or materials
provided, the furnishing of architectural services, or the furnishing or
performing of surveying or engineering services. . . .
Miss. Code Ann. § 85-7-405(1)(b) (Rev. 2014). The Miller Act and the Little Miller Act are
both statutory schemes relating to public works projects. See 40 U.S.C.A. § 3133; Miss. Code
Ann. § 31-5-53. Each contains requirements for prime contractors to obtain bonds and
provides for actions against those bonds. Today’s case does not concern a public-works
project or bonds. Only one reference is made to the Little Miller Act within the entire
section, and that section relates to payment bonds, not liens.2
¶14. Both Miller Acts provide a claimant “one year after the day on which the last of the
labor was performed or material was supplied by the person bringing the action.” 40
U.S.C.A. § 3133(b)(4) (West 2006); Miss. Code Ann. § 31-5-53(b) (Rev. 2010). A
subcontractor under our lien statutes has only three months “after the claimant’s last work
performed, labor, services or materials provided.” Miss. Code Ann. § 85-7-405(1)(b).
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Section 85-7-431 reads,
Where a contractor gives a payment bond providing payment protection to
subcontractors and material suppliers to the full extent provided by the
Mississippi Little Miller Act found at Section 31-5-51, the payment bond shall
be in substitution for the liens provided for a subcontractor or materialman in
this article. The contractor’s right to a lien is not affected by the provision of
a bond.
Miss. Code Ann. § 85-7-431 (Rev. 2014) (emphasis added).
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¶15. The Casino seeks interpretation of our lien statutes based on the language in the Little
Miller Act because courts have held that “‘labor,’ for purposes of the Miller Act limitations
period, does not include remedial or corrective work, even if performed as a contractual duty,
if such remedial or corrective work was neither significant nor crucial to the operation or
functioning of the project.” United States ex rel. T.L. Wallace Constr., Inc. v. Fireman’s
Fund Ins. Co., 790 F. Supp. 680, 684 (S.D. Miss. 1992). See also Gen. Ins. Co. of Am. v.
United States ex rel. Audley Moore & Son, 409 F.2d 1326, 1327 (5th Cir. 1969) (The Fifth
Circuit held that the “correction of errors does not extend the time for filing suit.”). The
Casino argued that the Legislature intended for the lien statute’s use of “work performed”
and “labor” to be synonymous with that used to interpret bonds obtained for public-works
projects.
¶16. The chancellor declined to interpret Section 85-7-405, instead of relying on the plain
language of the statute. The chancellor held that
While there was testimony that the surveillance system and access control
system which were the subject of the subcontract were operational as early as
December 2015 and the casino was able to open on December 9, 2015, the
preponderance of the evidence is that GSI performed work as described by §
85-7-405(1)(b) within 90 days of April 14, 2016. The wording of the statute
is clear, making reference only to the date of the lien claimant’s “last work
performed, labor, services or materials provided.” The statute makes no
mention of whether or not the project was substantially complete. It is also
worthy of note that all the work testified to as performed within 90 days of the
date of lien was performed within the 270 days provided in the subcontract for
performance of the contract. In addition, there is no evidence to indicate that
the work performed during that 90-day period was for any ulterior motive such
as extension of the time to file a lien. To the contrary, the work was performed
at the insistence and direction of the prime contractor.
¶17. We find no no error in the chancellor’s finding.
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“[W]here the language in a statute is plain and unambiguous, ‘it is not within
the province of this court to add to the law as the Legislature has written it.’”
Lewis v. Hinds Cty. Circuit Court, 158 So. 3d 1117, 1122 (Miss. 2015)
(quoting First Nat’l Bank of Memphis v. State Tax Comm’n, 210 Miss. 590,
49 So. 2d 410, 412 (1950)).
No principle is more firmly established, or rests on more secure
foundations, than the rule which declares when a law is plain
and unambiguous, whether it be expressed in general or limited
terms, that the Legislature shall be deemed to have intended to
mean what they have plainly expressed, and, consequently, no
room is left for construction in the application of such a law.
Id.
City of Tchula v. Miss. Pub. Serv. Comm’n, 187 So. 3d 597, 599 (Miss. 2016). The
chancellor properly interpreted Section 85-7-405 as written and applied the facts of the case
to the requirements of the statute. The chancellor determined that GSI provided labor,
services, and/or material required by the contract and at the direction of the Casino within
ninety days of the lien’s being filed.
¶18. We find that the chancellor did not err in denying the Casino’s petition to expunge the
lien filed by GSI. GSI fully complied with Section 85-7-405 by filing its lien within ninety
days of its “last work performed, labor, services or materials provided. . . .” The evidence
adduced during the hearing supports the chancellor’s finding that work, required under the
contract, was performed on numerous dates and as late as March 18, 2016. Although the
Casino was able to open in December 2015, prior to the work’s being completed by GSI, the
statute makes no reference to work’s being substantially completed as opposed to its being
the “last work performed.”
CONCLUSION
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¶19. We affirm the chancellor’s denial of the Casino’s petition to expunge GSI’s lien,
because GSI complied with all the requirements of Section 85-7-405 when it filed its lien.
¶20. AFFIRMED.
WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM,
CHAMBERLIN AND ISHEE, JJ., CONCUR.
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