Founders Kitchen & Bath, Inc. v. Alexander, A15A1262.
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | McFADDEN, Judge. |
| Citation | 334 Ga.App. 389,779 S.E.2d 668 |
| Decision Date | 10 November 2015 |
| Docket Number | No. A15A1262.,A15A1262. |
| Parties | FOUNDERS KITCHEN & BATH, INC. v. ALEXANDER et al. |
334 Ga.App. 389
779 S.E.2d 668
FOUNDERS KITCHEN & BATH, INC.
v.
ALEXANDER et al.
No. A15A1262.
Court of Appeals of Georgia.
Nov. 10, 2015.
Jeffrey Stephen Leeper, Marietta, Cory Casey Close, Duluth, for Appellant.
Jeffrey Hobart Schneider, Atlanta, for Appellee.
McFADDEN, Judge.
This is a materialman's lien case in which the trial court granted a defense motion for summary judgment on the grounds that the parties are in privity of contract and thus the complaint is barred by the 365 day time limit imposed by OCGA § 44–14–361.1(a)(3). But contrary to the trial court's finding, there exist genuine issues of material fact as to whether the parties are in privity of contract and
whether the time limit provided by OCGA § 44–14–361.1(a)(3) applies to the complaint in this case. Accordingly, we reverse.
"Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court's grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant." Stennette v. Miller, 316 Ga.App. 425, 426, 729 S.E.2d 559 (2012) (citation omitted).
So viewed, the evidence shows that Debra and James Alexander (the "Alexanders") contracted with Cirillo Custom Homes, Inc. ("Cirillo") for the construction of a house. Cirillo contracted with Founders Kitchen & Bath, Inc. ("Founders") for the installation of kitchen cabinets. Pursuant to its agreement with Cirillo, Founders installed cabinets in the Alexanders' home. On September 25, 2007, Founders filed a claim of lien against the property. It provided notice of the claim of lien to the Alexanders on March 5, 2008. On February 28, 2008, Founders filed an action on its claim of lien against Cirillo, claiming that Cirillo had not paid. The record does not reveal what has become of that action against Cirillo. But on May 2, 2014, Founders filed the instant complaint to foreclose its materialman's lien against the Alexanders.
The Alexanders moved for summary judgment, claiming that Founders' president admitted in deposition testimony that Founders had a contract with the Alexanders; that as a result of such contractual privity, Founders was required by OCGA § 44–14–361.1(a)(3) to commence its lien action against them within 365 days of when the claim became due; that Founders failed to meet that deadline, having filed its complaint against them more than six years after its claim of lien was filed; and that Founders' action is thus time-barred. The trial court granted the motion, stating that it was "treating [Founders'] complaint as having been filed under OCGA § 44–14–361.1(a)(3), thus construing [Founders'] owner's conflicting deposition testimony against him, finding that [Founders] was in privity [of contract] with the defendant property owners [the Alexanders] concurrently with being in privity with Cirillo." The trial court went on to conclude that Founders' action against the Alexanders was time-barred since it was filed "well outside the 365–day term provided by OCGA § 44–14–361.1(a)(3)."
Founders appeals, asserting that the trial court erred in finding that its complaint against the Alexanders is barred by the 365 day time limit set forth in OCGA § 44–14–361.1(a)(3). We agree.
Our Supreme Court has summarized the statutory scheme at issue.
The Georgia General Assembly has enacted a detailed statutory scheme for creating special liens on real property, including liens of materialmen who furnish materials for the building, repairing, or improving of the property. O.C.G.A. § 44–14–361.1(a) sets out the provisions for perfecting a lien. These provisions
require a materialman who has substantially complied with the contract for materials to (a) file a claim of lien in the county where the property is located within three months of furnishing the materials; (b) send a copy of the lien claim to the property owner; (c) commence an action against the contractor to recover the amount of the claim within [365 days] of when the claim became due; and (d) file a notice of the action with the superior court clerk of the county where...
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Bennett v. State, No. A15A1007.
...law or fact. Indeed, if an offense is a lesser included offense as a matter of law or fact, an accused can be convicted of that offense.334 Ga.App. 389(Citation omitted.) Bryant v. State, 320 Ga.App. 838, 842–43(3), 740 S.E.2d 772 (2013). See also OCGA § 16–1–6(1) ("An accused may be convic......
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Gryder v. Conley, A19A1285
...The trial court thus erred when it applied the 836 S.E.2d 126 Prophecy rule in this context. See Founders Kitchen & Bath v. Alexander , 334 Ga. App. 389, 393-394, 779 S.E.2d 668 (2015) (reversing a grant of summary judgment when a trial court erred in applying the Prophecy rule to exclude a......
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Cook Sales, Inc. v. Concrete Enters., LLC., A20A1037
...real estate to the owner of the improved property." (Citation and punctuation omitted.) Founders Kitchen & Bath, Inc. v. Alexander , 334 Ga. App. 389, 391, 779 S.E.2d 668 (2015).4 See Shiv Aban, Inc. v. Ga. Dept. of Transp. , 336 Ga. App. 804, 811-812, 784 S.E.2d 134 (2016) ("A statute is p......
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Optum Constr. Grp., LLC v. City Elec. Supply Co., A20A1010
...Optum. As such, the trial court erred by granting summary judgment to City Electric. See Founders Kitchen & Bath, Inc. v. Alexander , 334 Ga. App. 389, 392-393, 779 S.E.2d 668 (2015) (reversing grant of summary judgment where fact issue remained as to whether materialman was in privity of c......
-
Bennett v. State, A15A1007.
...law or fact. Indeed, if an offense is a lesser included offense as a matter of law or fact, an accused can be convicted of that offense.334 Ga.App. 389(Citation omitted.) Bryant v. State, 320 Ga.App. 838, 842–43(3), 740 S.E.2d 772 (2013). See also OCGA § 16–1–6(1) ("An accused may be convic......
-
Gryder v. Conley, A19A1285
...The trial court thus erred when it applied the 836 S.E.2d 126 Prophecy rule in this context. See Founders Kitchen & Bath v. Alexander , 334 Ga. App. 389, 393-394, 779 S.E.2d 668 (2015) (reversing a grant of summary judgment when a trial court erred in applying the Prophecy rule to exclude a......
-
Cook Sales, Inc. v. Concrete Enters., LLC., A20A1037
...real estate to the owner of the improved property." (Citation and punctuation omitted.) Founders Kitchen & Bath, Inc. v. Alexander , 334 Ga. App. 389, 391, 779 S.E.2d 668 (2015).4 See Shiv Aban, Inc. v. Ga. Dept. of Transp. , 336 Ga. App. 804, 811-812, 784 S.E.2d 134 (2016) ("A statute is p......
-
Optum Constr. Grp., LLC v. City Elec. Supply Co., A20A1010
...Optum. As such, the trial court erred by granting summary judgment to City Electric. See Founders Kitchen & Bath, Inc. v. Alexander , 334 Ga. App. 389, 392-393, 779 S.E.2d 668 (2015) (reversing grant of summary judgment where fact issue remained as to whether materialman was in privity of c......