ARCO Design/Build, LLC v. Savannah Green I Owner, LLC.

• Decision Date: 21 June 2022
• Docket Number: A22A0056
• Citation: 364 Ga.App. 380,875 S.E.2d 385
• Parties: ARCO DESIGN/BUILD, LLC v. SAVANNAH GREEN I OWNER, LLC.
• Court: Georgia Court of Appeals

364 Ga.App. 380

875 S.E.2d 385

ARCO DESIGN/BUILD, LLC

v.SAVANNAH GREEN I OWNER, LLC.

A22A0056

Court of Appeals of Georgia.

June 21, 2022

Michael J. Rust, David Christopher Sawyer, Atlanta, for Appellant.

Kevin Harrison Hudson, Zachary Richard Hall, for Appellee.

Markle, Judge.

This appeal addresses the discrete issue of whether the tolling provisions of the 2020 Statewide Judicial Emergency Orders extended the deadline for filing an affidavit of nonpayment under Georgia's lien waiver statute, OCGA § 44-14-366.¹ The trial court determined that they did not and, for the reasons that follow, we affirm.

The material facts of this case are not in dispute. In 2018, Savannah Green I Owner, LLC ("SGO") entered into a contract with Arco Design/Build, LLC, under which Arco agreed to design and build a warehouse on SGO's property in Pooler, Georgia. The contract required Arco to submit periodic applications for payment, and to execute conditional lien waivers to cover the exact amount requested in the payment application. Pursuant to the terms of these waivers, Arco released "any and all liens or claims of lien it has upon the ... property" upon full payment of the requested amount. Tracking the language of OCGA § 44-14-366 (f) (2), the waivers also provided that Arco "shall be conclusively deemed to have been paid in full" regardless of whether Arco actually received the payment, unless it filed an affidavit of nonpayment or a claim of lien within 60 days of the date of the waiver.

On April 22, 2020, Arco submitted to SGO an application for payment in the amount of $1,027,695.17, and executed the accompanying lien waiver. More than 60 days later, on September 14, 2020, Arco filed an affidavit of nonpayment under OCGA § 44-14-366 in Chatham County Superior Court, claiming that it was still owed $668,912.17 under this application for payment.² The following month, Arco recorded a claim of lien for the unpaid amount.

SGO filed suit, bringing a claim for breach of contract based on Arco's allegedly defective work, and sought a declaratory judgment that Arco's affidavit of nonpayment was untimely, and therefore any debt SGO owed was extinguished by operation of law. Arco answered and brought counterclaims for breach of contract based on SGO's nonpayment and to foreclose its lien.³ In its pleadings, Arco asserted that its affidavit of nonpayment was timely because the 60-day deadline under OCGA § 44-14-366 (f) (2) (c) was tolled, and did not begin to run until July 14, 2020, under the Supreme Court of Georgia's Order Declaring Statewide Judicial Emergency, and the subsequent orders extending the judicial emergency. SGO moved for partial summary judgment on this issue, which the trial court granted in a thorough and well-reasoned order. Arco now appeals.

Arco challenges the trial court's determination that its affidavit of nonpayment was untimely because the Emergency Orders did not toll the filing requirements under OCGA § 44-14-366. This appeal requires us to construe the applicable Emergency Orders,⁴ as well as the Georgia lien waiver statute, and we are bound by the following rules of construction:

In interpreting any statute, we necessarily begin our analysis with familiar and binding canons of construction.

And in considering the meaning of a statute, our charge is to presume that the General Assembly meant what it said and said what it meant. So, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage. Thus, when the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.

(Citations and punctuation omitted.) Kemron Environmental Servs. v. Prospira Paincare , 362 Ga. App. 727, 730, 870 S.E.2d 53 (2022). Because statutory interpretation is a question of law, our review is de novo. Hill v. First Atlantic Bank , 323 Ga. App. 731, 732, 747 S.E.2d 892 (2013). And, as lien statutes are in derogation of the common law, they "must be strictly construed in favor of the property owner and against the materialman." (Citation and punctuation omitted.) Bibler Masonry Contractors v. J. T. Turner Constr. Co. , 340 Ga. App. 490, 493, 798 S.E.2d 19 (2017).

Under the lien waiver statute, OCGA § 44-14-366 :

(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) (1), (2).

On March 14, 2020, in response to the surging COVID-19 pandemic, Chief Justice Harold D. Melton issued the first of several Emergency Orders, declaring a statewide judicial emergency "affecting all courts and clerk's offices in the State as it relates to all judicial proceedings. " (Emphasis supplied.) Order Declaring Statewide Judicial Emergency at 1, March 14, 2020.

The Chief Justice also issued the following directive:

Pursuant to OCGA § 38-3-62, during the period of this Order, the undersigned hereby suspends, tolls, extends, and otherwise grants relief from any deadlines or other time schedules or filing requirements imposed by otherwise applicable statutes, rules, regulations, or court orders, whether in civil or criminal cases or administrative matters, including, but not limited to any: (1) statute of limitation; (2) time within which to issue a warrant; (3) time within which to try a case for which a demand for speedy trial has been filed; (4) time within which to hold a commitment hearing; (5) deadline or other schedule regarding the detention of a juvenile; (6) time within which to return a bill of indictment or an accusation or to bring a matter before a grand jury; (7) time within which to file a writ of habeas corpus; (8) time within which discovery or any aspect thereof is to be completed; (9) time within which to serve a party; (10) time within which to appeal or to seek the right to appeal any order, ruling, or other determination; and (11) such other legal proceedings as determined to be necessary by the authorized judicial official.

(Emphasis supplied.) Id. at 2; see also OCGA § 38-3-62 (a).

Under the third extension of the Emergency Order, "many of the deadlines imposed by law on litigants in civil and criminal cases that had been suspended, tolled, or extended" were to be reinstated as of July 14, 2020. (Emphasis supplied.) See Third Order Extending Declaration of Statewide Judicial Emergency at 1, 3 (II) (2), June 12, 2020.

Arco thus posits that its September 14, 2020 affidavit of nonpayment was timely because it was filed sixty days from the July 14th reinstatement date.⁵ See OCGA § 44-14-366 (f) (2) (C). On appeal, it contends that the trial court incorrectly construed certain provisions of the Emergency Orders, improperly limiting their intended scope. We address each term in turn, and conclude that the trial court correctly held that the Emergency Orders did not toll the filing requirements under OCGA § 44-14-366 (f) (2) (C).

(a) "In civil or criminal cases or administrative matters."

Arco first takes issue with the trial court's interpretation of the above language from the first Emergency Order.⁶ Specifically, the trial court noted that the first Emergency Order contained a significant limiter, restricting the tolling provision to "any deadlines or other time schedules or filing requirements imposed by otherwise applicable statutes, rules, regulations, or court orders, whether in civil or criminal cases or administrative matters. " (Emphasis supplied.) Order Declaring Statewide Judicial Emergency at 2, March 14, 2020. The trial court then found that "[t]he statutory deadline for filing an affidavit of nonpayment or a claim of lien is plainly not a deadline imposed in a civil or criminal case." Arco contends that the phrase, "whether in civil or criminal cases or administrative matters," qualifies only the immediately preceding phrase, "court orders"; thus, the tolling provision applies to OCGA § 44-14-366 (f) (2) (C) as it is simply "an otherwise applicable statute." Order Declaring Statewide Judicial Emergency at 2, March 14, 2020.

The statutory interpretation Arco espouses is the "rule of the last antecedent," under which "a qualifying phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows." (Citations and punctuation omitted.) Cajun Contractors v. Peachtree Property Sub , 360 Ga. App. 390, 414 (3) (a), n. 16, 861 S.E.2d 222 (2021) ; see also Thornton v. State , 310 Ga. 460, 467 (3), 851 S.E.2d 564 (2020). However, as our Supreme Court has explained,

this rule is not absolute, and the inference it raises may be rebutted where the structure and internal logic of the statutory scheme so militate. Under the alternative "series-qualifier principle," a qualifying phrase appearing at the end of a series should be read to apply to all items in the series when such an application would represent a natural construction. In choosing among the different understandings of the statute proposed by the parties, we must assess the qualifying phrase by reference to its situation within and relationship to the entire ... text.

(Citations and punctuation omitted.) Thornton , 310 Ga. at 467-468 (3), 851 S.E.2d 564.

Looking at the first Emergency Order as a whole, the phrase in question...