Land Holdings I, LLC, (the “Owner”), sought to expunge a lien filed by GSI Services, LLC (the “Subcontractor”). The chancellor denied the Owner’s petition to expunge the lien because the Subcontractor performed work at the property, a casino, within ninety days of filing its lien. The Owner appeals.
Statement of Issue:
The Owner raised only one issue on appeal: Whether the trial court erred in failing to apply the dictates of Mississippi’s Little Miller Act, Mississippi Code Section 31-5-51 (Rev. 2010), and the federal Miller Act, 40 U.S.C.A. § 3133 (West 2006), to Mississippi’s construction-lien-statute requirement of filing a lien within ninety days of the lien claimant’s “last work performed.”
The Owner argued that Subcontractor failed to file its notice of lien within ninety days of the last work performed. The Owner alleged that the project was substantially completed in December 2015 and that the only remaining work was remedial or corrective work that was neither significant nor crucial to the operation or functioning of the project. After the Owner fully paid the contract amount to the general contractor, the general contractor withheld payment of money owed to the Subcontractor, contending that the Subcontractor had not performed all work under the contract. The opinion does not indicate whether the Owner obtained an affidavit or sworn statement from the general contractor as to payment for work, materials or services provided, as contemplated by Miss. Code Section 85-7-405(2)(c).
Miss. Code Ann. 85-7-405 is Mississippi’s comprehensive lien statute and reads, in pertinent part that:
The filing for record of the claim of lien in the office of the clerk of the chancery court of the county where the property is located within ninety (90) days after the claimant’s last work performed, labor, services or materials provided, . . . .
The Owner argued that the legislature’s intent in enacting the construction lien framework in 2014 was that the construction lien statute would conform with the Little Miller Act, in order to provide predictability for the newly enacted statute. The owner cited to a video of the Senate Floor debate and two cases finding that “labor,” for purposes of Miller Act limitations period, does not include remedial or corrective work, even if performed as a contractual duty, if such remedial or corrective work was neither significant nor crucial to the operation or functioning of the project.” Citing United States ex rel. T.L. Wallace Constr., Inc. v. Fireman’s Fund Ins. Co., 790 F.Supp. 680, 684 (S.D. Miss. 1992). See also Gen. Ins. Co. of Am. v. United States ex rel. Audley Moore & Son, 409 F.2d 1326, 1327 (5th Cir. 1969).
The Owner asked the Court to interpret Miss. Code Ann. 85-7-405 based on federal courts’ interpretations of the phrase “last work performed” as it relates to the Miller Act (40 U.S.C. § 3133) and the Little Miller Act (Miss. Code Ann. § 31-5-53). The Miller Act and the Little Miller Act are both statutory schemes relating to public works projects. Each contains requirements for prime contractors to obtain bonds and provides for actions against those bonds. However, the Court concluded that today’s case does not concern a public-works project or bonds.
The Supreme Court found that the chancellor properly interpreted Miss. Code Ann. 85-7-405 as written and applied the facts of the case to the requirements of the statute. The chancellor determined that the Subcontractor provided labor, services, and/or material required by the contract and at the direction of the Owner within ninety days of the lien’s being filed. The Subcontractor fully complied with section 85-7-405 by filing its lien within ninety days of its “last work performed, labor, services or materials provided. . . .”
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CREDIT: Article submitted by Brad Jones, Vice President/Claims Counsel for Old Republic National Title Insurance Company