ALA Construction Services, LLC v. Controlled Access, Inc.

• Decision Date: 18 September 2019
• Docket Number: A19A0923
• Citation: 351 Ga.App. 841,833 S.E.2d 570
• Court: Georgia Court of Appeals
• Parties: ALA CONSTRUCTION SERVICES, LLC v. CONTROLLED ACCESS, INC.

351 Ga.App. 841

833 S.E.2d 570

ALA CONSTRUCTION SERVICES, LLC

v.CONTROLLED ACCESS, INC.

A19A0923

Court of Appeals of Georgia.

September 18, 2019

Certiorari Denied April 20, 2020

James Lewis-Kent Creasy III, for Appellant.

Isenberg & Hewitt, Harriet C. Isenberg, Eric Noyes Van De Water, Atlanta, for Appellee.

Phipps, Senior Appellate Judge.

ALA Construction Services, LLC ("ALA Construction") hired Controlled Access, Inc., pursuant to a written contract to provide controlled access equipment and related services for the Sugar Hill Overlook Townhomes. Controlled Access signed two documents titled "Interim Waiver and Release Upon Payment" which, in accordance with OCGA § 44-14-366, required Controlled Access to file an affidavit of nonpayment or a claim of lien within a 60-day period or else the amount due would be considered paid in full. Although ALA Construction failed to pay the agreed upon amount, Controlled Access did not file an affidavit of nonpayment or a claim of lien within the prescribed 60-day period. Controlled Access filed suit for breach of contract. ALA Construction filed a motion for summary judgment. At the motions hearing, the trial court heard witness testimony and entered a final order against ALA Construction in the amount of $17,666.78. ALA Construction appeals, arguing that the trial court’s interpretation of OCGA § 44-14-366 was erroneous. For the following reasons, we reverse.

"We apply a de novo standard of review to any questions of law decided by the trial court; factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses." (Footnote omitted.) Savannah Cemetery Group v. DePue-Wilbert Vault Co. , 307 Ga. App. 206, 206 (1), 704 S.E.2d 858 (2010).

Although we construe the facts in favor of the judgment, the relevant facts are not in dispute. The evidence shows that Controlled Access and ALA Construction entered into a contract wherein Controlled Access would provide equipment and services to the Sugar Hill Overlook Townhomes. On June 30, 2017, Controlled Access sent two invoices: Invoice No. 128678 was for $4,916.76 and Invoice No. 128677 was for $8,260.53. On the same date, Controlled Access executed two interim waivers ("Waivers") in accordance with OCGA § 44-14-366.

The Waivers in the instant case track the statutory form language found at OCGA § 44-14-366 (c). The "Waiver and Release of Lien and Bonds Rights" statute, among other things, allows that once the labor, services, or materials have been furnished by a materialman such as Controlled Access, a contractor may ask the materialman to execute an "Interim Waiver and Release Upon Payment." OCGA § 44-14-366 (c). 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 Waivers provide, in pertinent part:

Upon the receipt of [$8,260.53 and $4,916.76], 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 .... 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 form under [ OCGA §] 44-14-366.

(Emphasis supplied.) OCGA § 44-14-366 further provides:

(1) When a waiver and release provided for in this Code section is executed by the claimant, it shall be binding against the claimant for all purposes , subject only to payment in full of the amount set forth in the waiver and release. (2) 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) (emphasis supplied).

Although ALA Construction did not pay the invoices, Controlled Access did not file an affidavit of nonpayment or a claim of lien described in the Waiver. Controlled Access then filed the instant breach of contract lawsuit. ALA Construction filed a motion for summary judgment based on OCGA § 44-14-366. At the summary judgment hearing, the trial court considered witness testimony, and entered judgment in favor of Controlled Access.

When this Court construes a statute,

we must presume that the General Assembly meant what it said and said what it meant. Thus if the language of the statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. Where terms of art are not involved, we look to the common and customary usages of the words and their context. 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. Finally, in this State lien statutes in

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