Star Mfg., Inc. v. Edenfield, A89A0563
Decision Date | 24 May 1989 |
Docket Number | No. A89A0563,A89A0563 |
Citation | 382 S.E.2d 706,191 Ga.App. 665 |
Parties | STAR MANUFACTURING, INC. v. EDENFIELD et al. |
Court | Georgia Court of Appeals |
Paul Cames, Warner Robins, for appellant.
Bentley C. Adams III, Thomaston, for appellees.
This is an appeal from the trial court's grant of appellees/defendants' motion for directed verdict. The trial court's order directed verdict against appellant Star Manufacturing Company (hereinafter Star) and dissolved a materialman's lien held by Star against the appellees.
Appellees contracted with E.W.W. Machinery Erectors, Inc. (hereinafter E.W.W.) for the erection of a prefabricated steel warehouse built by Star. E.W.W. erected the Star manufactured warehouse on appellees' property. Subsequently, Star asserted that it had not been paid for this account and filed a materialman's lien. The appellees made final payment to E.W.W. for the warehouse, and E.W.W. executed an affidavit, dated and sworn to on December 20, 1982, the date appellees tendered final payment to E.W.W.
Appellant has filed two enumerations of error, and we limit our review to those issues therein asserted and duly addressed in appellant's brief. See generally OCGA § 5-6-40 Judicial Decisions; Court of Appeals Rule 15(c)(2). Held:
1. Appellees' motion for sanction of appellant, pursuant to Court of Appeals Rule 26(b), is denied.
2. Appellant asserts that the trial court erred "when it directed a verdict for [appellees] on the basis that the [appellees] procured an affidavit from the contractor to the effect that all materialmen had been paid, because [appellees] admitted in their pleadings that they did not obtain the affidavit prior to making their final payment to the contractor."
OCGA § 44-14-361.2 pertinently provides that a special lien under the provisions of OCGA § 44-14-361 shall be dissolved if the owner of the property shows that: "(2)(A) They or any of them have obtained the sworn written statement of the contractor or person other than the owner at whose instance the labor, services, or materials were furnished ... that the agreed price ... [has] been paid ... and (B) When the sworn ... statement was obtained or given as a part of a transaction: ... (iii) Where final disbursement of the contract price is made by the owner to the contractor...." (Emphasis supplied.)
OCGA § 44-14-361.2 was promulgated under Ga.L.1983, p. 1450, § 1, and "substantially altered" its predecessor statutes, OCGA § 44-14-361(b) and Code Ann. § 67-2001.2. Amafra Enterprises v. All-Steel Bldgs., 169 Ga.App. 388, 389 n. 1, 313 S.E.2d 110. One important distinction is that OCGA § 44-14-361.2 speaks in terms of dissolution of an existing lien by production of a contractor's sworn written statement while OCGA § 44-14-361(b) and Code Ann. § 67-2001.2 also provide that the lien shall attach unless the owner produces the contractor's sworn statement. Thus, the predecessor statutes clearly contemplated that the contractor's sworn statement would be procured in time to prevent the lien from attaching, while OCGA § 44-14-361.2 on its face addresses only the subsequent dissolution of a special lien. Accordingly, we do not find Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499(2), 83 S.E. 210 and its progeny dispositive of the issue of when OCGA § 44-14-361.2 requires the contractor's sworn statement to be obtained by the owner.
In interpreting the requirements of OCGA § 44-14-361.2, we recognize that " 'as our lien laws and procedures are in derogation of the common law, they must be construed strictly against the creditor and in favor of the debtor.' ' Dixie Concrete Svcs. v. Life Ins. Co., etc., 174 Ga.App. 866, 331 S.E.2d 889. Further, while a danger exists in construing a lien dissolution statute too broadly, see Mass. Bonding, supra 142 Ga. at 503, 83 S.E. 210, too narrow a statutory construction may well work a "hardship" on an innocent owner " 'who would then be forced to pay twice for improvements to his property.' " C.E. Self, etc., v. Jerome, 161 Ga.App. 456, 458, 288 S.E.2d 359.
OCGA § 44-14-361.2 does not on its face require that the contractor's sworn statement be obtained before final disbursement of the contract price is made by the owner. Rather, this statute, in pertinent part, only requires that the sworn written statement be obtained or given "as a part of a transaction" where such final disbursement is made. OCGA § 44-14-361.2(a)(2)(B). We find this language unambiguous and the legislative intent clear. OCGA § 1-3-1(a). Thus, this particular statutory provision tacitly appears to require only that the sworn statement will be obtained or given both in conjunction with the final disbursement and within such a reasonable time thereof so as to constitute "a part of" the final disbursement transaction. Whether a contractor's sworn statement has been timely obtained or given, thus will depend on the circumstances of each case. Nothing found in Bishop v. Forsyth Paving Contractors, 181 Ga.App. 345, 352 S.E.2d 198 justifies a different statutory construction.
In this case, the contractor's sworn statement reflects on its face that it was executed on December 20, 1982, by the president of E.W.W. The president of E.W.W. testified that the contractor's sworn statement was executed by him on the date the final payment was made on the warehouse by the appellees; and, he would not have signed the sworn statement if he had not sent the money due on the project to Star. He also testified that although he could not recall if he delivered the affidavit to appellees at the time he made final payment, it seems like he "delivered it to their ... plant at Warner Robins." In reviewing these pertinent facts of record, we have appropriately applied the principle that " " Williamson v. Sunshine Oil Co., 176 Ga.App. 661(2), 337 S.E.2d 441.
Considering the operative facts of this case, we are satisfied that appellees substantially complied with the requirements of OCGA § 44-14-361.2. OCGA § 1-3-1(c); cf. Dixie Concrete, supra. Moreover, we...
To continue reading
Request your trial-
Balest v. Simmons
...the contractor had not previously filed a valid preliminary notice or claim of lien. Accord Star Mfg. v. Edenfield, 191 Ga.App. 665-667(2), 382 S.E.2d 706 (1989) (contractor's affidavit held sufficient to dissolve subcontractor's lien because affidavit had been given in conjunction with con......
-
Alpharetta, Old Milton County, Georgia Historical & Genealogical Soc., Inc. v. Dowda
...204 Ga. 891, 52 S.E.2d 459 (1949); Wade v. Polytech Indus., 202 Ga.App. 18, 25(5), 413 S.E.2d 468 (1991); Star Mfg. v. Edenfield, 191 Ga.App. 665, 667(3), 382 S.E.2d 706 (1989). We concur with the trial court that there was no evidence of fraud on Dowda's part regarding the substitution of ......
-
Southern Concrete Const. Co., Inc. v. Hall
...of paragraph (2) of OCGA § 44-14-361.2(a) is that a contractor's affidavit will dissolve a lien"); Star Mfg. v. Edenfield, 191 Ga.App. 665, 666-667(2), 382 S.E.2d 706 (1989) (affidavit, dated and sworn to on date of receipt of final payment, held sufficient to dissolve lien); Walk Softly, I......
-
Fowler v. Smith
...If a judgment entered pursuant to the granting of a directed verdict is right for any reason, it will be affirmed. Star Mfg. v. Edenfield, 191 Ga.App. 665, 668, 382 S.E.2d 706. 4. Appellees were the prevailing parties in this suit. But, even had appellants prevailed, it would have rested in......