Massey Asphalt Paving, Inc. v. Lee Land Dev., Inc.

• Decision Date: 04 March 2016
• Docket Number: 2140680.
• Citation: 203 So.3d 1271
• Parties: MASSEY ASPHALT PAVING, INC. v. LEE LAND DEVELOPMENT, INC.
• Court: Alabama Court of Civil Appeals

203 So.3d 1271

MASSEY ASPHALT PAVING, INC.

v.LEE LAND DEVELOPMENT, INC.

2140680.

Court of Civil Appeals of Alabama.

March 4, 2016.

Carl E. Chamblee, Jr., of Chamblee & Malone, LLC, Birmingham, for appellant.

Erskine R. Funderburg of Trussell Funderburg Rea & Bell, Pell City, for appellee.

PITTMAN, Judge.

Massey Asphalt Paving, Inc. ("Massey"), appeals from a judgment of the St. Clair Circuit Court, which determined that Massey did not hold a valid materialman's lien on property owned by Lee Land Development, Inc. ("Lee Land"). We affirm.

Procedural History

Massey sued Lee Land, alleging that Massey and Lee Land had entered into an agreement pursuant to which Massey was to provide paving materials and to perform paving work in connection with the improvement of two tracts of Lee Land's real property in St. Clair County known as Lee Gardens and Lee Commercial Park (sometimes hereinafter referred to collectively as "the properties"). Massey alleged further that, although it had provided the materials and had performed the work on the properties as agreed upon, Lee Land had not paid Massey the amount it had agreed to pay. Massey stated causes of action alleging breach of contract, work and labor done, open account, and promissory fraud, and Massey sought to enforce a materialman's lien on the properties. Along with its complaint, Massey submitted a statement of lien that had been filed in the St. Clair Probate Court on November 12, 2008.

After a nonjury trial, the trial court entered a judgment finding that Lee Land owed Massey for work and materials provided, and it entered a judgment in Massey's favor in the amount of $35,000. The trial court, however, also found that Massey did not hold a lien on the properties because, the trial court determined, Massey had not timely filed its statement of lien in the probate court pursuant to § 35–11–215, Ala.Code 1975. That Code provision requires Massey to have filed a statement of lien within six months of performing the last item of work, or providing the last item of material, for the paving job. We also note that § 35–11–221, Ala.Code 1975, requires an action to enforce a materialman's lien to be commenced "within six months after the maturity of the entire indebtedness secured thereby," although the trial court did not expressly rely on that Code provision in finding that Massey could not enforce a materialman's lien. Massey appealed from the judgment, arguing that the trial court erred in determining that Massey did not hold a materialman's lien on the properties.¹

Standard of Review

" ‘ " ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ " ' Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002) ). ‘ "The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment." ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985) ). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086."

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007). Our supreme court has indicated that factual issues surrounding the timeliness of the filing of a statement of a materialman's lien, as well as the timeliness of an action to enforce such a lien, are subject to the ore tenus rule. C & S Family Credit of Alabama, Inc. v. McNairy, 613 So.2d 1232, 1233 (Ala.1992).

Discussion

Timeliness of the Statement of Lien

"Section 35–11–210, [Ala.] Code 1975, is intended to give every mechanic or materialman who performs any work or labor, or furnishes any material for any building or improvement on land by virtue of a contract with the owner thereof, or his agent, contractor, or subcontractor, a lien on the improvements and on the land. Elder v. Stewart, 269 Ala. 482, 114 So.2d 263 (1959)."

Bettinger v. Stephens Wholesale Bldg. Supply Co., 487 So.2d 1369, 1370 (Ala.Civ.App.1986).

One of the requirements for the perfection of a materialman's lien is the filing of a verified statement of lien in the probate court of the county where the real property upon which the lien is to attach is situated. Ala.Code 1975, § 35–11–213. Section 35–11–215, Ala.Code 1975, sets the deadline for filing the statement of lien:

"The lien declared in this division shall be deemed lost unless the statement referred to in Section 35–11–213shall be filed by every original contractor within six months and by every journeyman and day laborer within 30 days, and by every other person entitled to such lien within four months, after the last item of work or labor has been performed or the last item of any material, fixture, engine, boiler, or machinery has been furnished for any building or improvement on land or for repairing, altering, or beautifying the same under or by virtue of any contract with the owner or proprietor thereof, or his agent, architect, trustee, contractor, or subcontractor."

(Emphasis added.) It is not disputed that Massey was an "original contractor" as that term is used in § 35–11–215. See generally Southern Sash of Huntsville, Inc. v. Jean, 285 Ala. 705, 710, 235 So.2d 842, 846 (1970) (" ‘A materialman furnishing materials for a building under contract with the owner is an original contractor.’ " (quoting Morris v. Bessemer Lumber Co., 217 Ala. 441, 443, 116 So. 528, 529 (1928) )). There is a dispute in this case as to the date on which Massey performed "the last item of work" or furnished the "last item of ... material" and, therefore, whether Massey filed its statement of lien within the applicable six-month period.

Massey filed its statement of lien on November 12, 2008. More than six months earlier, on December 21, 2007, Massey had first performed work and provided materials pursuant to its agreement with Lee Land. Massey submitted an invoice to Lee Land on that same day, and Lee Land paid the amount shown on that invoice.

Massey provided additional materials and performed additional work, and billed Lee Land for the materials and the work, in early April 2008, which also was more than six months before Massey filed its statement of lien. Lee Land initially paid only half of what it owed for the work and materials Massey had provided in April 2008, apparently because Lee Land disputed the amount of materials that Massey had actually provided. Massey's president testified at the trial that he had agreed to allow Lee Land to delay paying the remaining balance until the area of the paving job could be measured.

In October 2008, principals of Massey and Lee Land met at the job site and measured the amount of paving work that had been completed by Massey on the properties. Massey's president testified during the trial that the measurements had revealed that Massey actually had provided more materials than it had estimated and for which it had billed Lee Land. Although it does not appear that that testimony was disputed by Lee Land, Lee Land paid Massey only a portion of the amount that had been billed by the last invoice submitted by Massey in April 2008, apparently either because Lee Land was not satisfied with the quality of the work or because it simply did not have the funds to pay the entire amount. Massey's president testified that he had been informed that Lee Land would pay Massey the remaining balance after the properties were sold at auction, but the balance was never paid.²

Sometime after the referenced measurements had been taken in October 2008, but before Massey filed its statement of lien in November 2008, Massey performed some additional work for Lee Land. It is not disputed that the additional work was intended to correct problems that had arisen after the paving work had been completed in April 2008. It is not entirely clear from the record, but it appears that the corrective work was performed at Lee Commercial Park.

Although the testimony at trial was somewhat in dispute as to the cause of the problems with the paving work, that testimony and other evidence would support a conclusion that the problems could have been caused by defects in the paving work Massey had performed in December 2007 or April 2008. It is undisputed that Massey had provided Lee Land with an express one-year warranty, which had a start date of April 1, 2008, covering the paving work done at Lee Commercial Park, which appears to be where the corrective work was performed.³ Moreover, Massey's president testified that Massey did not charge Lee Land for the corrective work, and an exhibit submitted by Massey during the trial indicates that Massey's statement of lien did not include amounts allegedly owed for that work. Based on all the evidence, which the trial court considered ore tenus, the trial court could have determined that Massey had intended to perform the corrective work free of charge in order to remedy problems with the paving work it had performed in December 2007 or April 2008.

Massey filed its statement of lien within six months of the corrective work Massey had performed. Massey argues that the date on which it performed that work was the date on which it performed "the last item of work" and furnished the "last item of ... material," as those terms are used in § 35–11–215.⁴

It does not appear that the appellate courts in this state have expressly answered the question whether a contractor's performance of corrective work, such as the work involved in the present case, extends the statutory deadline for the filing of a statement of lien. According to our ...