Brantley Land & Timber, LLC v. W. & D. Invs., Inc.

• Citation: 316 Ga.App. 277,729 S.E.2d 458,12 FCDR 2011
• Decision Date: 15 June 2012
• Docket Number: Nos. A12A0613,A12A0614.,s. A12A0613
• Court: Georgia Court of Appeals
• Parties: BRANTLEY LAND & TIMBER, LLC v. W & D INVESTMENTS, INC. Hawk's Landing Development Company v. W & D Investments, Inc.

316 Ga.App. 277

729 S.E.2d 458

12 FCDR 2011

BRANTLEY LAND & TIMBER, LLC

v.W & D INVESTMENTS, INC.

Hawk's Landing Development Company

v.W & D Investments, Inc.

Nos. A12A0613, A12A0614.

Court of Appeals of Georgia.

June 15, 2012.

W. Vincent Settle III, Waycross, for Brantley Land & Timber, LLC and Hawk's Landing Development Company.

Mark David Johnson, Brunswick, for W & D Investments, Inc.

ADAMS, Judge.

On May 3, 2007, W & D Investments, Inc. (“W & D”) entered into separate agreements with Brantley Land & Timber, LLC (“Brantley”) and Hawk's Landing Development Company (“Hawk's”) (collectively referred to herein as the “Developers”), under which W & D was to install water systems to provide water service to Hawk's development, Hawk's Landing, and Brantley's developments, Eagle's Crest/Satilla Plantation (the “Agreements”). On January 12, 2010, W & D brought a breach of contract action against Hawk's and on April 25, 2011 filed a similar action against Brantley. These suits alleged that the Developers each failed to pay amounts due and owing under the Agreements. Hawk's and Brantley each filed answers denying liability and asserting counterclaims against W & D. Subsequently, the Developers each filed an “Amended Answer and Counterclaim,” in which they asserted an additional counterclaim contending that W & D was required under OCGA § 43–14–8.2 to have a utility contractor license; that W & D did not possess such a license; that by failing to secure this license, W & D lacked the capacity to lawfully install water systems; and thus that the Agreements were unenforceable (the “Amended Counterclaim”). The Developers accordingly sought reimbursement for all sums paid to W & D under the Agreements. In addition, the Developers each filed motions for summary judgment on the Amended Counterclaim, and W & D filed cross-motions for partial summary judgment as to that counterclaim. The trial court granted W & D's motion for partial summary judgment and denied the Developers' motions for summary judgment. Brantley and Hawk's each filed separate appeals from that order.

The Developers are correct that a party's failure to obtain a license to engage in certain businesses can void the party's business contracts, if the licensing requirement is part of regulatory scheme in the public interest:

“ ‘[W]here a statute provides that persons proposing to engage in a certain business shall procure a license before being authorized to do so, and where it appears from the terms of the statute that it was enacted not merely as a revenue measure but was intended as a regulation of such business in the interest of the public, contracts made in violation of such statute are void and unenforceable.’ [Cits.]” Bernstein v. Peters, 68 Ga.App. 218, 221(1), 22 S.E.2d 614 (1942); accord Robinson v. Colonial Discount Co., 106 Ga.App. 274, 277(3), 126 S.E.2d 824 (1962).

Bowers v. Howell, 203 Ga.App. 636, 637(1), 417 S.E.2d 392 (1992). Beginning June 30, 1994, entities engaged in the business of utility contracting in Georgia have been required to have a utility contractor license under OCGA § 43–14–8.2(b).¹ And this Court has previously held that the licensing requirements under Chapter 14 of Title 43 are not merely revenue measures, but rather were intended to regulate the covered industries, including utility contracting, in the public interest:

In the Georgia Code relating to the regulation of certain businesses, including [utility contracting], the State of Georgia declared the practice of [utility] contracting to be a business or profession “affecting the public interest.” OCGA § 43–14–1. The State, therefore, regulates the profession for the purpose of “safeguarding homeowners, other property owners, tenants, and the general public against faulty, inadequate, inefficient, or unsafe [utility contracting].” Id.

JR Const./Electric v. Ordner Constr. Co., 294 Ga.App. 453, 453–454, 669 S.E.2d 224 (2008). Therefore, the sole issue before us is whether the trial court properly found that W & D was not engaged in utility contracting as that term is defined under Chapter 14.

“The interpretation of a statute is a question of law, which is reviewed de novo on appeal.” (Citation, punctuation, and footnote omitted.) Joe Ray Bonding Co. v. State of Ga., 284 Ga.App. 687, 688, 644 S.E.2d 501 (2007). And our Supreme Court has summarized the guidelines for statutory interpretation, as follows:

In construing a statute, our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute's text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes. If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words. If, on the other hand, the words of the statute are ambiguous, then this Court must construe the statute, keeping in mind the purpose of the statute and “the old law, the evil, and the remedy.” OCGA § 1–3–1(a).

(Punctuation and footnotes omitted.) Busch v. State, 271 Ga. 591, 592, 523 S.E.2d 21 (1999).

The Georgia Code defines “utility contracting” to mean “undertaking to construct, erect, alter, or repair or have constructed, erected, altered, or repaired any utility system.” OCGA § 43–14–2(13). And “ ‘[u]tility system’ ” means:

[a]ny system at least five feet underground, when installed or accessed by trenching, open cut, cut and cover, or other similar construction methods which install or access the system from the ground surface, including, but not limited to, gas distribution systems, electrical distribution systems, communication systems, water supply systems, and sanitary sewerage and drainage systems;

(Emphasis supplied.) OCGA § 43–14–2(17)(A).²

We interpret this statute under its plain terms as defining utility systems to include only water supply systems at least five feet underground that are installed or accessed from the ground surface. Thus, any water supply systems less than five feet underground would not be considered utility systems under the statute and would not require a utility contractor license “to construct, erect, alter, or repair or have constructed, erected, altered, or repaired.” Here, it is undisputed that “none of the trenching, cutting and installation related to the construction and access of the system[s on the Developers properties] was done at a depth of five feet or deeper below the surface.” Thus, we conclude that W & D was not engaged in utility contracting in connection with the Developers' properties. It follows, therefore, that W & D was not required to have a utility contractor license to perform work under the Agreements, and that those Agreements are not unenforceable because W & D did...