Fed. Trust Bank v. C.W. Matthews Contracting Co.

• Decision Date: 21 October 2011
• Docket Number: No. A11A0897.,A11A0897.
• Citation: 11 FCDR 3340,718 S.E.2d 63,312 Ga.App. 200
• Parties: FEDERAL TRUST BANK et al. v. C.W. MATTHEWS CONTRACTING COMPANY, INC.
• Court: Georgia Court of Appeals

11 FCDR 3340
312 Ga.App. 200
718 S.E.2d 63

FEDERAL TRUST BANK et al.
v.
C.W. MATTHEWS CONTRACTING COMPANY, INC.

No. A11A0897.

Court of Appeals of Georgia.

Oct. 21, 2011.

[718 S.E.2d 64]

Miles, Patterson, Hansford & Tallant, Dana B. Miles, Cumming, Wendy Wolfenbarger Kraby, for appellants.

Moore, Ingram, Johnson & Steele, G. Phillip Beggs, Marietta, Christopher Clinton Mingledorff, for appellee.

PHIPPS, Presiding Judge.

[312 Ga.App. 200] C.W. Matthews Contracting Company, Inc. filed an action seeking a materialman's special lien against property owned by Federal Trust Bank. ¹ Federal Trust Bank thereafter obtained a bond for discharge of materialman's lien from Hartford Fire Insurance Company, and the latter was added as a defendant. C.W. Matthews amended the complaint to recover under the lien discharge bond. The trial court granted summary judgment to C.W. Matthews and denied summary judgment to Federal Trust Bank and Hartford Fire Insurance (collectively, the Bank). The Bank appeals from the rulings on the motions. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant.²

[312 Ga.App. 201] In January 2007, C.W. Matthews entered into a contract with Crescent Development, Inc. for the former to provide asphalt and paving services and materials to a 12.67–acre parcel of land; the property contained a strip shopping center. On June 13, 2007, C.W. Matthews completed the work, which was valued in excess of $400,000. On September 12, 2007, C.W. Matthews, still owed $134,858.77, filed a claim of lien against the 12.67–acre property in the amount of $105,475.77. Still unpaid in February 2008, C.W. Matthews filed in superior court a complaint against Crescent Development and a notice of the action. C.W. Matthews obtained a default judgment against Crescent Development on June 5, 2008 for $134,858.77.

On June 3, 2008, Federal Trust Bank purchased a 1.8–acre parcel of the 12.67–acre property. In February 2009, when it had not received any payment of the amounts in the claim of lien or the default judgment, C.W. Matthews filed the instant action seeking a special lien against Federal Trust Bank's property in the amount of its judgment against Crescent Development; ³ it later amended the complaint to recover under the lien discharge bond. The trial court granted summary judgment to C.W. Matthews pursuant to the lien discharge bond in the amount of $105,475.77, and denied summary judgment to the Bank.

1. The Bank contends that the trial court erred in granting summary judgment to C.W. Matthews because the claim of lien was not filed within the time limit set out in OCGA § 44–14–361.1. The Bank and C.W. Matthews agree that the version of OCGA § 44–14–361.1 applicable in this case is the one that was in effect in June 2007.⁴ That version of OCGA § 44–14–361.1 set forth, among other things, the requirements for declaring and creating the liens specified in OCGA § 44–14–361.⁵ It provided, in relevant part:

(a) To make good the liens specified in ... subsection (a) of Code Section 44–14–361, they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable: ...

[718 S.E.2d 65]

[312 Ga.App. 202] (2) The filing for record of his claim of lien within three months after the completion of the work ... or within three months after the material or machinery is furnished in the office of the clerk of the superior court....⁶

The Bank posits that “three months” as it appeared in the applicable (1991) version of the statute meant “90 days,” not three calendar months as C.W. Matthews contends; thus, because the claim of lien came due on June 13, 2007, and July and August each have 31 days, C.W. Matthews's filing on September 12 was two days beyond the 90–day deadline. While we recognize that lien statutes in derogation of the common law must be strictly construed in favor of the property owner and against the materialman,⁷ the Bank's argument is nonetheless without merit.

There is no statutory basis for the Bank's argument that the three-month requirement set out in the applicable version of OCGA § 44–14–361.1 is analogous to 90 days. In fact, contrary to the Bank's position, OCGA § 1–3–3(11) defines “month,” as used in the Georgia Code, as “a calendar month.” OCGA § 1–3–3 does not define “calendar month,” but Webster's Third International Dictionary (1981) defines “calendar month” as “the period from a day of one month to the corresponding day of the next month if such exists or if not to the last day of the next month.” ⁸

The Supreme Court of Georgia has computed “three months” in a manner consistent with these definitions:

From the first of one month to the first of the next month, in common language and common sense, is always one month, and from the second of the month to the second of the next does not vary the length of time—it is a month still. So from the first of January to the first of April is three months, and it can make no difference if the count be from the second or any other day of January to the second or any corresponding day of April.... [A]nd ... always from ... any other day of a given month, to the corresponding day of [312 Ga.App. 203] any following month, the time will be computed to be fully one, two, or three, or more full months, as the case may be.⁹

Nonetheless, the Bank cites several cases in which our appellate courts, in rendering decisions involving OCGA § 44–14–361.1 (the 1991 version and its predecessors), referred to a 90–day period for filing claims of lien. However, in none of those cases was the issue presented for adjudication the meaning of “three months” or the manner in which the period was to be computed.¹⁰ The apparent

[718 S.E.2d 66]

effort in those cases to provide a shorthand definition of “three months,” i.e., 90 days, was not necessary and the computation of “three months” (as calendar months versus a specific number of days) was not essential to the determination of those cases. Indeed, the 90–day language in the cited cases

was obiter dicta lacking the force of an adjudication because it was a statement in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand.... As the U.S. Supreme Court recently noted, “we are not bound to follow our dicta in a prior case where the point now at issue was not fully debated.” ... “[G]eneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the [312 Ga.App. 204] judgment in a subsequent suit when the very point is presented for adjudication.” ¹¹

The “very point” presented for adjudication in the case at bar is the meaning of “three months” and whether that period had expired before C.W. Matthews filed its claim of lien. We decline to give force to the dicta in the cases cited by the Bank because the language relied upon was not necessary to resolve the issues before the court in those cases.¹²

Accordingly, the three-month period in the instant case...