Padgett v. City of Moultrie

• Decision Date: 20 November 1997
• Docket Number: No. A97A1131,A97A1131
• Citation: 494 S.E.2d 299,229 Ga.App. 500
• Parties: , 97 FCDR 4422 PADGETT et al. v. CITY OF MOULTRIE et al.
• Court: Georgia Court of Appeals

Page 299

494 S.E.2d 299

229 Ga.App. 500, 97 FCDR 4422

PADGETT et al. v. CITY OF MOULTRIE et al.

No. A97A1131.

Court of Appeals of Georgia.

Nov. 20, 1997.

Certiorari Denied Mar. 6, 1998.

Kirbo, McCalley & Forehand, William C. McCalley, Moultrie, for appellants.

Keith F. Allen, Solicitor, Moore & Mangum, Charles E. Moore, Milledgeville, Young, Thagard, Hoffman, Scott & Smith, John H. Smith, Jr., Valdosta, Whelchel, Whelchel & Carlton, James C. Whelchel, Hoyt H. Whelchel, Jr., Moultrie, for appellees.

SMITH, Judge.

This case involves an issue of first impression construing the Commercial Real Estate Broker Lien Act, OCGA § 44-14-600 et seq., enacted in 1993. Ga.L.1993, p. 1490. Appellants Mary L. Padgett and Pineapple, Inc. d/b/a Southeast Realty, a corporation owned by Padgett (collectively "Padgett"), filed an action to foreclose a broker's lien on property owned by defendant Cambridge Health Care, Inc. ("Cambridge"). ¹ Appellees City of Moultrie and Empire Financial Services hold security deeds on the property for loans made to Cambridge. The City and Empire moved for summary judgment, contending that Padgett did not have a valid and enforceable broker's lien on the property. Padgett likewise moved for summary judgment, contending the lien was valid and enforceable and had priority over the liens of the City and Empire.

The trial court denied summary judgment to Padgett and granted summary judgment to the City and Empire. When we granted Padgett's application for interlocutory appeal as to the denial of her motion for summary judgment, she also directly appealed the grant of summary judgment to the lenders. Southeast Ceramics v. Klem, 246 Ga. 294, 295, 271 S.E.2d 199 (1980). We agree that the trial court erred in both instances and reverse.

The pertinent facts are not in dispute. Padgett entered into an agreement with Cambridge Health Care Services to facilitate the purchase of the old Hotel Colquitt in downtown Moultrie by Cambridge for conversion into a personal care home. Padgett provided services to Cambridge, including the negotiation and arrangement of the purchase of the hotel property, obtaining financing both from Empire and from the City, site analysis, market feasibility studies, assisting the architect and contractor in renovation of the property, and managing the property after closing. In return, Cambridge agreed that Padgett would receive $100,000 for "real estate and consulting services." Padgett introduced several letters memorializing this agreement, as well as the testimony of the chief executive officer of Cambridge, Bryson F. Hill, Jr. Padgett also received a real estate commission of five percent of the purchase price from the seller of the property, with the contract providing that Padgett's company had acted as agent for the purchaser and not for the seller. No dispute exists that the five percent commission on the sale of the underlying realty was paid by the seller and was entirely separate from her broker's agreement with the purchaser. Hill agreed that the seller's commission was unrelated to the agreement between Cambridge and Padgett.

At closing, the available funds were insufficient to pay all of Padgett's commission and fee. Part of the fee was paid at closing, and a new written "commission agreement" was executed by Cambridge for $55,420, the balance owed to Padgett. When this sum was not paid, Padgett filed a lien on the property and later filed this action to foreclose the lien.

1. We must first determine whether Padgett's lien is valid and enforceable under the terms of the relevant statutes, OCGA § 44-14-600 et seq. Padgett contends that her services as a licensed real estate broker were "inextricably intertwined" with her services in obtaining financing, marketing the personal care home, assisting in the renovation of the hotel, and managing the property during the construction and loan phase. The City and Empire contend that some of the services Padgett provided were not services required to be provided by a broker as defined under OCGA § 43-40-1 and were not directly related to the actual sale of the real estate. For these reasons, they contend that a portion of Padgett's services were not "licensed services" and that as a result none of Padgett's claim is lienable under the statute. This narrow interpretation is not supportable under the broad language of the statute creating the lien.

OCGA § 44-14-602 provides: "(a) Any real estate broker who is not an employee or independent contractor of another real estate broker shall have a lien, in the amount of the compensation agreed upon by and between the broker and the landlord or seller or other client or customer, upon commercial real estate or any interest in commercial real estate:

"(1) Arising out of a listing agreement or any other agreement for the management, sale, or lease of or otherwise conveying any interest in the commercial real estate as evidenced by a writing signed by the owner or its expressly authorized agent and with written notice to the party whose property may be liened, if different from the parties to the agreement;

"(2) As to which the broker or broker's employees or independent contractors have provided licensed services that result in the procuring of a person or entity ready, willing, and able to enter and who actually enters into a purchase or lease or otherwise accepts a conveyance of the commercial real estate or any interest in the commercial real estate upon terms acceptable to the owner as evidenced by an agreement or conveyance signed by the owner or its expressly authorized agent and with written notice to the party whose property may be liened, if different from the parties to the agreement; or

"(3) When a broker having a written agreement with a prospective buyer or tenant to represent the buyer or tenant as to the purchase, lease, or other conveyance of commercial real estate becomes entitled to compensation and with written notice to the party whose property may be liened, if different from the parties to the agreement."

In construing a lien statute, we must bear in mind the general rule that such statutes are in derogation of the common law and are strictly construed in favor of the property owner and against the lien claimant. Southern Gen. Ins. Co. v. Auto Transformation, 206 Ga.App. 243, 244-245(1), 424 S.E.2d 883 (1992) (automobile mechanic's lien); Browning v. Gaster Lumber Co., 267 Ga. 72, 73, 475 S.E.2d 576 (1996) (materialman's lien). But we must also recognize the purpose for lien statutes: the need to protect the claimant's profession or business. Id.

The general rules of statutory construction are also applicable here. We must give plain and unambiguous language its plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1(b). We must also seek to make all parts of the statute harmonize and to give a sensible and intelligent effect to each part, presuming that the legislature intended all parts to have meaning. City of Buchanan v. Pope, 222 Ga.App. 716, 717(1), 476 S.E.2d 53 (1996).

Construing the statute in this manner, we conclude that a commercial real estate broker's lien is not limited to those services licensed under OCGA § 43-40-1. The statute is not limited to "licensed services" throughout. That term appears only in subsection (a)(2). This omission "invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare tacitum, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. [Cits.] The omission of any such reference from [the Code subsection] must be regarded as deliberate." (Punctuation and emphasis omitted.) Dept. of Human Resources v. Hutchinson, 217 Ga.App. 70, 72, 456 S.E.2d 642 (1995) (express mention of "state officer or employee" in two subsections of statute and omission from third).

Moreover, the statute includes within the definition of lienable contracts a number of items not within the statutory definition of licensed services. For example, OCGA § 44-14-602(a)(1) permits a lien not only for compensation "[a]rising out of a listing agreement" but also "any other agreement for the management, sale, or lease of or otherwise conveying any interest in the commercial real estate." (Emphasis supplied.) Id. But OCGA § 43-40-1 was not amended until 1995 to include "property management services" within the definition of licensed activities. OCGA § 43-40-1(2)(H); Ga.L.1995, p. 1216. We conclude from this internal evidence that the General Assembly did not intend to limit a commercial real estate broker's lien strictly to licensed services.

This conclusion is also compatible with the law defining those services for which a broker must be licensed. The law provides that no unlicensed person may provide certain enumerated services connected with real estate, even if the services required to be licensed form only part of the entire transaction: "Any person who, directly or indirectly, with the intention or upon the promise of receiving any valuable consideration, offers, attempts, or agrees to perform, or performs, any single act defined in paragraph (2) of Code Section 43-40-1, whether as a part of a transaction or as an entire transaction, shall be deemed a licensee within the meaning of this chapter. The commission of a single such act by a person who is required to be licensed under...