THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
March 30, 2015
In the Court of Appeals of Georgia
A14A1615. SEABOARD CONSTRUCTION COMPANY v. KENT
REALTY BRUNSWICK, LLC.
BOGGS, Judge.
Seaboard Construction Company (“Seaboard”) appeals from the trial court’s
grant of Kent Realty Brunswick, LLC’s (“Kent’s”) motion for summary judgment,
and the court’s denial of its motion for summary judgment. For the following reasons,
we affirm in part and reverse in part.
On appeal from the grant or denial of summary judgment, this court applies a
de novo standard of review. Woodcraft by MacDonald, Inc. v. Ga. Cas. and Sur. Co.,
293 Ga. 9, 10 (743 SE2d 373) (2013). Summary judgment is proper when there is no
genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law. OCGA § 9-11-56 (c). We must view the evidence, and all reasonable
inferences drawn therefrom, in the light most favorable to the nonmovant. Matjoulis
v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).
The stipulated facts reveal that in 2006, Harbor Development LP began to
develop a 135-acre parcel for 1,600 residential lots and condominiums. Harbor
contracted with Plant Improvement Company, Inc., d/b/a Seaboard Construction
Company (“Seaboard”), to perform certain site preparation work on Phase I which
consisted of 60 acres.1 During the performance of the site work, Harbor received 17
applications for payment and paid the company $6,261,192.52. A total of
$326,661.50 remained unpaid when a dispute arose between the parties concerning
the calculation and processing of the final application for payment. Seaboard
subsequently filed five materialman’s liens, each in the amount of $363,959.810,2
against five separate properties of the development, two of which were owned by
Kent, and one of which was owned by Harbor.3
1
This work included “[e]arthwork, soil erosion control, pavement, water
distribution system, storm drainage, wastewater collection system, grassing and site
concrete.”
2
It appears that the difference between the total amount of the liens and the
amount remaining on the contract is accumulated interest.
3
After the liens were filed, the other two owners filed for bankruptcy, and
Harbor’s lender foreclosed on its property.
2
Four months after filing the liens, Seaboard filed suit against Harbor seeking
payment of the unpaid retainage. Three days later, Kent filed a “Complaint for
Damages and Equitable Relief” asserting defamation of title and seeking injunctive
relief. Seaboard answered and counterclaimed to foreclose upon the liens. Shortly
after the filing of Kent’s suit, Seaboard filed a “Notice of Filing of Action for Claim
on Materialman’s Lien” for each of the Kent liens.
Following the filing of cross-motions for summary judgment, and after a
hearing of the argument of counsel, the trial court granted Kent’s motion and denied
Seaboard’s in a one-sentence order.4 During the hearing, however, the trial court
concluded that the liens were invalid because they were not filed in the name of the
lien holder and were excessive under OCGA § 44-14-361.1 (e). The court concluded
further that there was a jury issue remaining on Kent’s slander of title claim.
1. Seaboard contends that the trial court erred in granting Kent’s motion for
summary judgment on the validity of the liens. The court ruled on the record that the
liens were invalid because they were not filed in the name of the lien holder and were
4
Several months before the entry of judgment, Harbor entered into a consent
judgment with Seaboard in the amount of the unpaid retainage, which the parties
assert has been submitted to the trial court for entry as a final judgment in a separate
action.
3
excessive. We agree with the court’s latter conclusion that the liens were excessive,
and therefore hold that the court did not err in granting Kent’s motion for summary
judgment on this ground. See Georgia-Pacific v. Fields, 293 Ga. 499, 504 (2) (748
SE2d 407) (2013) (appellate court may affirm the grant of summary judgment when
it is right for any reason).
OCGA § 44-14-361.1 (e) provides that “[i]n no event shall the aggregate
amount of liens set up by Code Section 44-14-361 exceed the contract price of the
improvements made or services performed.” This court held in Elec. Distribs. v
Turner Constr. Co, 196 Ga. App. 359 (395 SE2d 879) (1990), that “the focus of this
defense is the amount the owner of the property has spent under the contract at the
time the lien was filed, for the claimant is entitled to recover only the balance of the
contract price remaining to be paid at the time the lien was filed.” Id. at 362 (2). That
is, with regard to the work benefitting multiple properties, the amount of the contract
relative to a particular owner’s property. The parties agree that the amount of
remaining unpaid principal on the contract for the work in Phase I of the development
was $326,661.50. This phase consisted of multiple parcels of property, one parcel of
which, divided into multiple lots, was owned by Kent. Seaboard filed a lien in the
amount of $363,959.81 on this parcel, and also filed a lien in the amount of
4
$363,959.81 on property owned by Kent in Phase II of the development. The
aggregate amount of liens filed against Kent property was therefore $727,919.62 (and
the aggregate amount of liens filed against all five properties was $1,819,799.05).
Because the aggregate amount of liens exceeded the remaining contract price for
improvements made or services performed on Kent’s property, the liens violated the
proscription of OCGA § 44-14-361.1 (e), and are therefore invalid. Cf. Gaster
Lumber Co. v Browning, 219 Ga. App. 435, 436 (1) (465 SE2d 524) (1995) (total
amount of liens in excess of contract price); compare Dallas Bldg. Material v. Smith,
193 Ga. App. 512, 513 (388 SE2d 359) (1989) (appellant’s lien of $ 11,157.66 did
not exceed the contract price for improvements made to owner’s property).5 The trial
court therefore did not err in granting Kent summary judgment on this ground.
5
Seaboard argues that we should apply tort law, specifically the principle of
joint and several liability, to conclude that it was entitled to file liens against each
property for the full amount of the principal balance remaining on the contract, but
“our lien laws and procedures are in derogation of the common law, [and] must be
construed strictly against the creditor and in favor of the debtor.” Brockett Rd.
Apartments v. Ga. Pacific Corp., 138 Ga. App. 198, 199 (225 SE2d 771) (1976). We
are therefore limited to a strict construction of OCGA § 44-14-361.1 (e).
5
2. Seaboard argues that the trial court erred in failing to grant it summary
judgment on Kent’s slander of title claim.6 We agree. OCGA § 51-9-11 provides that
an “owner of any estate in lands may bring an action for libelous or slanderous words
which falsely and maliciously impugn his title if any damage accrues to him
therefrom.” And, “[i]n order to sustain an action of this kind, the plaintiff must allege
and prove the uttering and publishing of the slanderous words; that they were false;
that they were malicious; that he sustained special damage thereby; and that he
possessed an estate in the property slandered.” (Citations and punctuation omitted.)
Latson v. Boaz, 278 Ga. 113, 114 (598 SE2d 485) (2004); M&M Mortgage Co. v.
Grantville Mill, LLC, 302 Ga. App. 46, 49-50 (3) (690 SE2d 630) (2010). Therefore
Kent “could recover only such special damages as [it] actually sustained as a
consequence of the alleged wrongful acts, and [it was] required to plead them plainly,
fully, and distinctly.” Latson, supra.
Kent argues that it was unable to obtain a construction loan on its properties
and “was preparing to offer into evidence at trial an appraisal which would have
6
We note that while the trial court’s order states that it granted Kent’s motion
for summary judgment and denied Seaboard’s motion, the court during the hearing
on the motion for summary judgment concluded that a jury issue remained regarding
Kent’s slander of title claim.
6
shown hundreds of thousands of dollars in losses. And, [it] intended to subpoena and
call as a witness” the tax commissioner who appraised the properties. During oral
argument on the motion for summary judgment, Kent made reference to an affidavit
of a bank representative who he claims averred that “the individual lot holders went
to seek a loan for thirteen million dollars and that [the bank] was unable to give them
a loan . . . and that they could not close on a loan at that amount because there were
five liens filed against various properties.” But this affidavit is not part of the record
here on appeal, and in any case, this averment is not specific to Kent or any special
damages suffered by Kent. Here, Kent only presented evidence of the attorney fees
it incurred, and points to no other evidence in the record to support a claim for special
damages. See M&M Mortgage Co., supra, 302 Ga. App. at 50 (3) (attorney fees do
not constitute special damages).
As the movant for summary judgment on this claim, Seaboard has
demonstrated that there is no evidence sufficient to create a genuine issue of material
fact on an element of Kent’s special damages. And Kent failed to come forth with
specific evidence giving rise to a triable issue. Since Kent “offered no evidence of
special damages, an essential element of [its] claim for slander of title,” the trial court
7
erred in denying Seaboard’s motion for summary judgment on this claim. See Latson,
supra, 278 Ga. at 116; M&M Mortgage Co., supra, 302 Ga. App. at 50 (3).
Judgment affirmed in part, reversed in part. Barnes, P. J., concurs and Branch,
J., concurs in the judgment only.
8