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

Carley, Justice,

dissenting.

In this case the majority opinion refuses to apply the general statutory method for the computation of time provided in OCGA § 1-3-1 (d) (3). Because that general computational statute is clearly *256applicable here, U. S. Filter certainly complied with the three-month claim of lien filing requirement of the materialmen’s lien statute. Thus, I believe that the Court of Appeals erred in affirming the trial court’s denial of U. S. Filter’s motion for summary judgment.

The majority mistakenly relies upon Jones v. Kern, 101 Ga. 309 (1) (28 SE 850) (1897) as authority for holding that OCGA § 1-3-1 (d) (3) is not applicable. Prior to 1985, OCGA § 1-3-1 (d) (3) did apply only to statutory periods which were measured in days. This absence of any applicable statute compelled this Court in Jones to compute the three-month period contained in the predecessor to OCGA § 44-14-361.1 (a) (2) by applying the general judicially-prescribed method of computation. That method applied because the three-month period was “a definite period . . . fixed by law within which a given right or privilege is to be taken advantage of. . . .” Jones v. Kern, supra at 310 (1). In applying this general judicial method, Jones did not rely on any rule of strict statutory construction.

Since 1985, however, the statutory method of computation has applied “when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty. . . .” (Emphasis supplied.) OCGA § 1-3-1 (d) (3). See also Davis v. DESA Intl., 209 Ga. App. 318 (433 SE2d 410) (1993); Loveless v. Grooms, 180 Ga. App. 424, 425 (349 SE2d 281) (1986). This broad provision clearly superseded the Jones method of computation of the time prescribed for the exercise of the privilege of filing a claim of lien pursuant to OCGA § 44-14-361.1 (a) (2), unless the period of time prescribed in that lien statute comes within the exception in OCGA § 1-3-1 (d) (3) for “time period computations specifically applying to other laws. . . .” OCGA § 44-14-361.1 (a) (2) cannot come within this exception, however, because that statute “does not itself provide for any method of computing the [three-month] period provided therein.” Davis v. DESA Intl., supra at 319.

In making the remarkable assertion that application of OCGA § 1-3-1 (d) (3) would expand the time period prescribed by the lien statute to three months and one or more days, the majority apparently considers the statutory method of computation to be an arbitrary one. However, the mandate of OCGA § 1-3-1 (d) (3) that “the first day shall not be counted” and that weekend days and legal holidays shall be excluded when the last day falls thereon is a “rule of reason.” Brooks v. Hicks, 230 Ga. 500, 501 (197 SE2d 711) (1973). Applying that rule does not add any days to statutory time periods, but simply provides a reasonable and practical way to measure those time limitations. Rejection of that rule by reliance upon the rubric of “strict construction” results in unwarranted disparities between legal contexts and can only lead to confusion in appellate court decisions. *257See 86 CJS, Time, § 13, p. 585 (1997). Until today, the courts of this state have consistently applied OCGA § 1-3-1 (d) (3) in a variety of contexts, even to the strictly construed pleading requirements of the forfeiture statute. Jewell v. State of Ga., 200 Ga. App. 203, 204-205 (2) (407 SE2d 763) (1991). Moreover, the majority of jurisdictions addressing the issue have held that the general rule of excluding weekends and holidays when the deadline falls thereon is applicable to the computation of a time period for filing or perfecting a mechanic’s lien. 86 CJS, supra at § 34, p. 614.

Decided November 13, 2000 Reconsideration denied December 15, 2000. McCorkle, Pedigo & Johnson, Kenneth P. Johnson, David H. Johnson, for appellant. Barry L. Fitzpatrick, Rodger E. Davidson, for appellees.

In its effort to make the reasonable rule of OCGA § 1-3-1 (d) (3) appear excessive, the majority selects the most extreme example it can envision and then utilizes an inaccurate computation. If, as the majority posits, a materialman last furnished materials on August 22, 2000, then the final day of the three-month period calculated under OCGA § 1-3-1 (d) (3) would fall on Wednesday, November 22, 2000. Since the last day in this example is not a Saturday, Sunday, Thanksgiving Day or any legal holiday, the statute would not extend the time for filing beyond that Wednesday, and certainly not to November 27. Even if the materialman last furnished materials on August 23, 2000, so that the final day would fall on Thursday, November 23, 2000, the Thanksgiving holiday, OCGA § 1-3-1 (d) (3) still would not necessarily extend the time for filing to the following Monday. Although the Friday after Thanksgiving takes the place of another legal holiday pursuant to OCGA § 1-4-1 (a) (2), the time would not be extended beyond that Friday if the county courthouse was open for the transaction of business on that day. Bellew v. State Hwy. Dept., 127 Ga. App. 301, 302 (2) (193 SE2d 202) (1972). See also State of Ga. v. Jones, 125 Ga. App. 361, 363 (187 SE2d 902) (1972).

Because of the majority’s unwarranted disregard of OCGA § 1-3-1 (d) (3) and the confusion which this opinion will produce in classes of cases yet to be identified, I dissent to the affirmance of the judgment of the Court of Appeals.