                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2017-CA-01620-SCT

LAND HOLDINGS I, LLC d/b/a SCARLET PEARL,
LLC

v.

GSI SERVICES, LLC


DATE OF JUDGMENT:                         11/20/2017
TRIAL JUDGE:                              HON. JENNIFER T. SCHLOEGEL
TRIAL COURT ATTORNEYS:                    SAMUEL DEUCALION GREGORY
                                          VINCENT J. CASTIGLIOLA, JR.
COURT FROM WHICH APPEALED:                HARRISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                  CABLE MATTHEW FROST
                                          SAMUEL DEUCALION GREGORY
ATTORNEY FOR APPELLEE:                    VINCENT J. CASTIGLIOLA, JR.
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              AFFIRMED - 01/17/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE RANDOLPH, P.J., MAXWELL AND BEAM, JJ.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Land Holdings I, LLC, d/b/a Scarlet Pearl, LLC (“Casino”), sought to expunge a lien

filed by GSI Services, LLC (“GSI”). The chancellor denied the Casino’s petition to expunge

the lien because GSI performed work at the Casino within ninety days of filing its lien.

Finding no error, we affirm the chancellor’s order.

                       FACTS AND PROCEDURAL HISTORY

¶2.    The Casino contracted with Southern-ITS Corporation (“SITS”) for the installation

of a surveillance access-control system at the Scarlet Pearl Casino. SITS subcontracted with
GSI to complete portions of its contract. The contract provided that the Casino would pay

SITS $1,493,000, which included $1,242,000 for equipment and $251,000 for labor to install

the equipment. The Casino paid SITS the entire amount of the contract.

¶3.    After receiving payment for the contract amount, SITS withheld payment of money

owed to GSI for the labor portion of the contract, contending that GSI had yet to perform all

work under the contract. SITS subsequently sued GSI for damages, and GSI filed a

counterclaim.

¶4.    As a result of SITS’s withholding the labor component of its contract, GSI filed a

Notice of Claim of Special Lien against the Casino. GSI asserted that it performed labor

and/or services on several occasions within ninety days of filing its notice of lien. The Casino

sought to expunge the lien, alleging, inter alia, that GSI did not file its claim of lien within

ninety days of the last work performed.

¶5.    Mark Wiggins, the operations manager with GSI, was the only witness who testified

at the hearing. Wiggins testified that he was GSI’s project manager for the Casino project

from its beginning, that his job was to supervise the work performed by GSI at the Casino,

and that he had personal knowledge regarding the work performed by GSI for the Casino

during 2015 and 2016.

¶6.    Wiggins testified that, under its subcontract with SITS, “GSI was to provide both

equipment and labor in the form of installations for [the] access control system. . . .” The

contract began on July 10, 2015, and allotted 270 days for completion. However, GSI was

requested to expedite its work so that the Casino could open by December 9, 2015. Although



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the Casino was able to open on December 9, all of the work required by the contract had not

been performed.

¶7.    GSI employee time records submitted as an exhibit at the hearing documented that

GSI employees performed work in 2016, after the Casino was operational. Wiggins testified

that the work performed in 2016 included labeling equipment, creating spreadsheets for all

the equipment, and preparing closeout documents depicting where the equipment was

located—all of which was required under the contract. Wiggins testified based on his

personal knowledge and through the use of employee time sheets that GSI employees

performed work at the Scarlet Pearl Casino on January 15, 2016, February 5, 2016, March

14, 2016, March 15, 2016, March 16, 2016, March 17, 2016, and March 18, 2016.1

According to Wiggins, all work was performed to provide equipment and installation of

equipment at the Casino, as the contract required.

¶8.    Wiggins testified that the GSI time sheets provided accurate records of employee time

and responsibilities. Wiggins’s testimony and the GSI exhibits regarding hours worked at the

Casino were corroborated by and consistent with the evidence introduced by the Casino to

support its “punch-list” defense.



       1
         Jonathan Boyd worked at the Casino on January 15, 2016, for a total of 6.25 hours,
preparing and installing a magnetic locking card reader and repairing an entry door. Larry
Williams worked a total of 7.25 hours on the access-control system on January 15, 2016, 1.5
hours on January 29, 2016, and 2.75 hours on February 5, 2016, labeling wires and finishing
a spreadsheet. Williams also worked with Wiggins on March 14, 2016, for 6.5 hours,
marking camera locations. Ian Jolliffe worked 3.75 hours on March 16, 2016, 2.98 hours on
March 17, 2016, and 3.5 hours on March 18, 2016, at the Casino. Wiggins testified that
Jolliffe was working on “as built drawings” indicating where the equipment was located in
the Casino—all work that was required of GSI by the contractor under the contract.

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¶9.    Wiggins testified that the system was not fully functional to the Casino’s expectations

until sometime in March 2016. Wiggins testified that GSI had completed all necessary work

and provided all necessary equipment within ninety days of filing the lien.

¶10.   The chancellor denied the Casino’s petition to expunge the lien, finding that the

evidence was “undisputed that GSI performed work at the Scarlet Pearl [Casino] as part of

its subcontract pursuant to the instructions of the contractor as late as March 18, 2016.”

                                 STATEMENT OF ISSUE

¶11.   The Casino raises 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.”

                                         ANALYSIS

¶12.   The Casino argues that GSI failed to file its notice of lien within ninety days of the

last work performed. The Casino claims the work done by GSI after December 2015 only

amounted to corrective measures and punch-list items and that the work was substantially

completed in December 2015. The Casino asks this Court to interpret Section 85-7-405 of

the Mississippi Code based on federal courts’ interpretations of the phrase “last work

performed” as it relates to the Miller Act and the Little Miller Act. See 40 U.S.C.A. § 3133

(West 2006); Miss. Code Ann. § 31-5-53 (Rev. 2010).




                                               4
¶13.   Section 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 furnishing of architectural services, or the furnishing or
       performing of surveying or engineering services. . . .

Miss. Code Ann. § 85-7-405(1)(b) (Rev. 2014). The Miller Act and the Little Miller Act are

both statutory schemes relating to public works projects. See 40 U.S.C.A. § 3133; Miss. Code

Ann. § 31-5-53. Each contains requirements for prime contractors to obtain bonds and

provides for actions against those bonds. Today’s case does not concern a public-works

project or bonds. Only one reference is made to the Little Miller Act within the entire

section, and that section relates to payment bonds, not liens.2

¶14.   Both Miller Acts provide a claimant “one year after the day on which the last of the

labor was performed or material was supplied by the person bringing the action.” 40

U.S.C.A. § 3133(b)(4) (West 2006); Miss. Code Ann. § 31-5-53(b) (Rev. 2010). A

subcontractor under our lien statutes has only three months “after the claimant’s last work

performed, labor, services or materials provided.” Miss. Code Ann. § 85-7-405(1)(b).

       2
            Section 85-7-431 reads,

       Where a contractor gives a payment bond providing payment protection to
       subcontractors and material suppliers to the full extent provided by the
       Mississippi Little Miller Act found at Section 31-5-51, the payment bond shall
       be in substitution for the liens provided for a subcontractor or materialman in
       this article. The contractor’s right to a lien is not affected by the provision of
       a bond.

Miss. Code Ann. § 85-7-431 (Rev. 2014) (emphasis added).

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¶15.   The Casino seeks interpretation of our lien statutes based on the language in the Little

Miller Act because courts have held that “‘labor,’ for purposes of the 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.” 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 Fifth

Circuit held that the “correction of errors does not extend the time for filing suit.”). The

Casino argued that the Legislature intended for the lien statute’s use of “work performed”

and “labor” to be synonymous with that used to interpret bonds obtained for public-works

projects.

¶16.   The chancellor declined to interpret Section 85-7-405, instead of relying on the plain

language of the statute. The chancellor held that

       While there was testimony that the surveillance system and access control
       system which were the subject of the subcontract were operational as early as
       December 2015 and the casino was able to open on December 9, 2015, the
       preponderance of the evidence is that GSI performed work as described by §
       85-7-405(1)(b) within 90 days of April 14, 2016. The wording of the statute
       is clear, making reference only to the date of the lien claimant’s “last work
       performed, labor, services or materials provided.” The statute makes no
       mention of whether or not the project was substantially complete. It is also
       worthy of note that all the work testified to as performed within 90 days of the
       date of lien was performed within the 270 days provided in the subcontract for
       performance of the contract. In addition, there is no evidence to indicate that
       the work performed during that 90-day period was for any ulterior motive such
       as extension of the time to file a lien. To the contrary, the work was performed
       at the insistence and direction of the prime contractor.

¶17.   We find no no error in the chancellor’s finding.

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       “[W]here the language in a statute is plain and unambiguous, ‘it is not within
       the province of this court to add to the law as the Legislature has written it.’”
       Lewis v. Hinds Cty. Circuit Court, 158 So. 3d 1117, 1122 (Miss. 2015)
       (quoting First Nat’l Bank of Memphis v. State Tax Comm’n, 210 Miss. 590,
       49 So. 2d 410, 412 (1950)).

              No principle is more firmly established, or rests on more secure
              foundations, than the rule which declares when a law is plain
              and unambiguous, whether it be expressed in general or limited
              terms, that the Legislature shall be deemed to have intended to
              mean what they have plainly expressed, and, consequently, no
              room is left for construction in the application of such a law.

       Id.

City of Tchula v. Miss. Pub. Serv. Comm’n, 187 So. 3d 597, 599 (Miss. 2016). The

chancellor properly interpreted Section 85-7-405 as written and applied the facts of the case

to the requirements of the statute. The chancellor determined that GSI provided labor,

services, and/or material required by the contract and at the direction of the Casino within

ninety days of the lien’s being filed.

¶18.   We find that the chancellor did not err in denying the Casino’s petition to expunge the

lien filed by GSI. GSI fully complied with Section 85-7-405 by filing its lien within ninety

days of its “last work performed, labor, services or materials provided. . . .” The evidence

adduced during the hearing supports the chancellor’s finding that work, required under the

contract, was performed on numerous dates and as late as March 18, 2016. Although the

Casino was able to open in December 2015, prior to the work’s being completed by GSI, the

statute makes no reference to work’s being substantially completed as opposed to its being

the “last work performed.”

                                         CONCLUSION


                                              7
¶19.   We affirm the chancellor’s denial of the Casino’s petition to expunge GSI’s lien,

because GSI complied with all the requirements of Section 85-7-405 when it filed its lien.

¶20.   AFFIRMED.

    WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM,
CHAMBERLIN AND ISHEE, JJ., CONCUR.




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