U. S. Filter Distribution Group, Inc. v. Barnett

Hunstein, Justice.

We granted U. S. Filter Distribution Group’s petition for certiorari in this materialmen’s lien case in order to address whether the Court of Appeals correctly held in U S. Filter Distrib. v. Barnett, 241 Ga. App. 759 (1) (526 SE2d 912) (1999) that the requirement of OCGA § 44-14-361.1 (a) (2) that a lien be filed “within three months after the material or machinery is furnished” is not subject to calculation in accordance with the general provision for the computation of time specified in OCGA § 1-3-1 (d) (3). Finding that OCGA § 1-3-1 (d) (3) does not govern the measurement of time provided in the materialmen’s lien statute, we affirm the Court of Appeals.

U. S. Filter supplied water system materials to the contractor making improvements to property owned by appellees Jimmy Barnett and Buckeye Land & Timber Company, Inc. The contractor failed to pay for the materials and U. S. Filter filed a lien on the property. When U. S. Filter filed suit to recover under appellees’ lien discharge bond, the trial court denied its motion for summary judgment finding that U. S. Filter had failed to file its lien within the three-month limit set forth in OCGA § 44-14-361.1 (a) (2). The Court of Appeals affirmed, finding that because the last delivery of supplies was January 20, 1997 and the lien was not filed until Monday, April 21, 1997, U. S. Filter’s lien was untimely.

OCGA § 1-3-1 (d) (3) provides that when measuring a period of time, except for “time period computations specifically applying to other laws,” the first day “shall not be counted but the last day shall be counted” and that in situations where the last day falls on Saturday, Sunday, or a public and legal holiday as set forth in OCGA § 1-4-1, the last day will be deemed to fall on the next business day. OCGA § 44-14-361.1 (a) (2) specifically provides that the lien must be filed “within three months after the material... is furnished.” It is well established that where a statute gives a right which did not exist at common law, the statute must be limited strictly to the meaning of the language employed and not extended beyond the plain and explicit terms of the statute. Honeycutt v. Edwards, 136 Ga. App. 486 (1) (221 SE2d 678) (1975). Hence, this Court construed a predecessor statute to OCGA § 44-14-361.1 (a) (2) to find that the calculation of the three-month period begins on the first day upon which the right could lawfully have been asserted. Jones v. Kern, 101 Ga. 309 (1) (28 SE 850) (1897). In other words, the last day on which materials have been furnished falls “within” the three-month period and is included as the first day for calculating the appropriate filing time. Id. We have applied this specific method of computing the three-month time. *255period in OCGA § 44-14-361.1 (a) (2) in accordance with the mandate that Georgia’s materialmen’s lien law “should be dealt with according to the strictest rules of strict construction.” Green v. Farrar Lumber Co., 119 Ga. 30, 33 (46 SE 62) (1903).

OCGA § 44-14-361.1 (a) (2) comes within the exception provided in OCGA § 1-3-1 (d) (3) because its application to the materialmen’s lien statute would have the unauthorized consequence of expanding the three-month filing period beyond the time specified in the lien statute. Although OCGA § 44-14-361.1 (a) (2) specifically requires filing within three months of the furnishing of materials, OCGA § 1-3-1 (d) (3) allows filing within three months and one day, since it does not include in its calculation the first day within the three-month period. Further, computation of the three-month period under OCGA § 1-3-1 (d) (3) may improperly include three or more additional days, since that statute does not count Saturdays, Sundays and legal holidays when the last day of a computed period falls on one of these statutorily-exempted days. Thus, for example, under OCGA § 1-3-1 (d) (3) a materialman who last furnished materials on August 22, 2000 would have until November 27, 2000 to file a lien, due to the Thanksgiving holidays, whereas a strict construction of the lien statute would require the filing of the lien no later than November 21. Finally, while application of OCGA § 1-3-1 (d) (3) to the lien statute benefits the materialman by expanding the number of days in which a lien may be filed, this expansion works to the detriment of the property owner. Thus, application of OCGA § 1-3-1 (d) (3) is contrary to the well established rule that lien statutes in derogation of the common law must be strictly construed in favor of the property owner and against the materialman. Palmer v. Duncan Wholesale, 262 Ga. 28, 30 (1) (413 SE2d 437) (1992); Green v. Farrar Lumber, supra, 119 Ga. at 32-33.

Accordingly, we agree with the Court of Appeals that because of the strict construction applicable to OCGA § 44-14-361.1 (a) (2), calculation of the three-month filing period therein comes within the exception to OCGA § 1-3-1 (d) (3). Therefore, because U. S. Filter failed to comply with the three-month lien filing requirement of the materialmen’s lien statute, the Court of Appeals correctly affirmed the trial court’s ruling denying U. S. Filter’s motion for summary judgment.

Judgment affirmed.

All the Justices concur, except Carley, J., who dissents.