Denied May 17, 2019.
[Copyrighted Material Omitted]
from Walker Circuit Court (CV-17-900006)
B. Allen, Jasper, for appellant.
William J. Long and E. Travis Ramey of Burr & Forman LLP,
Bernard Harwood, Jr., of Rosen & Harwood, P.A.,
Tuscaloosa, for amici curiae Alabama Bankers Association,
Alabama Land Title Association, League of Southeastern Credit
Unions & Affiliates, Mortgage Bankers Association of
Alabama, Inc. and Credit Union Coalition of Alabama, in
support of appellee's application for rehearing.
Application for Rehearing
Court's opinion of September 21, 2018, is withdrawn, and
the following is substituted therefor.
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.
and Procedural History
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 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."
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.
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
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
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,
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 ...