GHB Construction and Development Company, Inc.
v.
West Alabama Bank and Trust
Appeal
from Walker Circuit Court (CV-17-900006)
On
Application for Rehearing
SELLERS, Justice.
This
Court's opinion of September 21, 2018, is withdrawn, and
the following is substituted therefor.
GHB
Construction and Development Company, Inc. ("GHB"),
appeals from an order of the Walker Circuit Court ("the
trial court") dismissing GHB's action against West
Alabama Bank and Trust ("WABT") seeking a judgment
declaring that its materialman's lien against property
owned by Penny Guin is superior to WABT's mortgage lien
secured by the same property. We affirm.
Facts
and Procedural History
On
April 8, 2015, Guin purchased an unimproved lot of real
property located in Walker County. That same day, Guin
executed a promissory note in the amount of $410, 870 secured
by a future-advance mortgage[1] in favor of WABT on the purchased
property and any improvements. WABT did not advance Guin any
money on the date the note and mortgage were executed, and
there were no prior-existing advances. The promissory note
states, in pertinent part, that "[t]he conditions for
future advances are at the request of [Guin] and the approval
of the loan officer."
On
April 9, 2015, Guin contracted with GHB to construct a house
on the property. At some time after the contract was
executed, GHB "commenced with the construction of
Guin's home on the property and contributed various
materials and labor that were used, consumed, and otherwise
incorporated into the property." Notably, GHB's
complaint does not indicate the specific date on which GHB
first delivered materials to the property or commenced
construction of the house.
On
April 10, 2015, WABT recorded the mortgage in the Walker
Probate Court ("the probate court"). On October 16,
2015, WABT issued the first principal advance under the
promissory note in the amount of $105, 000 to
Guin.[2]
GHB's
complaint alleges that, in May 2016, it met with WABT and
Guin prior to completing construction of the house and
presented them "with a description of the items to
complete the construction ... and an estimated cost of
completion of construction." GHB's complaint further
alleges that, following the meeting, it completed
construction of the house pursuant to Guin's
authorization and, after having completed construction of the
house, submitted to Guin its final bill for the work
completed. GHB's complaint alleges that Guin failed to
pay the final amount owed. On December 20, 2016, GHB filed a
"verified statement of lien" in the probate court
against Guin's property claiming "to secure an
indebtedness in the amount of $106, 556.16, with interest,
from August 2, 2016."
On
January 6, 2017, GHB filed its complaint against WABT, Guin,
and multiple fictitiously named parties. Most of the claims
asserted by GHB in its complaint were asserted against Guin
in an effort to collect the outstanding balance of the
construction contract. In regard to WABT, GHB sought a
judgment declaring that its materialman's lien on
Guin's property had priority over WABT's mortgage
lien.[3]
WABT
filed a motion to dismiss GHB's claim against it pursuant
to Rule 12(b)(6), Ala. R. Civ. P., for failure to state a
claim upon which relief can be granted. WABT argued that GHB
failed to plead that it delivered materials to the property
or began construction on the house before the date WABT's
mortgage was recorded in the probate court. Accordingly, WABT
argued, GHB's claim was due to be dismissed as a matter
of law. WABT asserted that, under Alabama law, a
materialman's lien cannot take priority over a mortgage
if the mortgage was recorded before the materials were
furnished or construction began.
GHB
filed a response to WABT's motion to dismiss, arguing
that the priority of WABT's mortgage lien was not
established on the date it was recorded because WABT had yet
to make any advances on the promissory note. GHB further
argued that WABT was not unequivocally bound to make any
future advances under the terms of the promissory note.
Likewise, GHB argued that WABT's mortgage lien was not
secure until WABT made its first advance to Guin; GHB claimed
this did not occur until after GHB had delivered materials to
the property and had commenced work on the house. Thereafter,
WABT and GHB each filed supplemental responses with the trial
court.
On
November 8, 2017, the trial court granted WABT's motion
and dismissed GHB's claim against WABT. WABT filed a
motion requesting that the trial court certify its order as a
final judgment under Rule 54(b), Ala. R. Civ. P. GHB filed a
motion to alter, amend, or vacate the trial court's
order. The trial court denied GHB's motion and certified
the order as final. GHB appealed.
Standard
of Review
"'"On appeal, a dismissal is not entitled to a
presumption of correctness. The appropriate standard of
review under Rule 12(b)(6) is whether, when the allegations
of the complaint are viewed most strongly in the
pleader's favor, it appears that the pleader could prove
any set of circumstances that would entitle her to relief. In
making this determination, this Court does not consider
whether the plaintiff will ultimately prevail, but only
whether she may possibly prevail. We note that a Rule
12(b)(6) dismissal is proper only when it appears beyond
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