CALHOUN/JOHNSON v. HOUSTON FAMILY TRUST

• Decision Date: 05 March 1999
• Docket Number: No. A98A2311.,A98A2311.
• Parties: CALHOUN/JOHNSON COMPANY v. HOUSTON FAMILY TRUST NO. 1.
• Court: Georgia Court of Appeals

513 S.E.2d 759

236 Ga. App. 793

CALHOUN/JOHNSON COMPANY v. HOUSTON FAMILY TRUST NO. 1.

No. A98A2311.

Court of Appeals of Georgia.

March 5, 1999.

Jackel, Rainey, Marsh & Busch, James C. Busch, Chad K. Reed, Marietta, for appellant.

Oliver, Duckworth, Sparger & Winkle, Kevin W. Sparger, Jonesboro, for appellee.

RUFFIN, Judge.

Calhoun/Johnson Company, d/b/a Williams Brothers Lumber Company brought suit against the Houston Family Trust No. 1 (the "Trust") to enforce a materialman's lien pursuant to OCGA § 44-14-361.1. The Trust filed a motion for summary judgment, claiming that the lien was unenforceable. The trial court granted the motion, and Williams Brothers appeals. We affirm.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). So viewed, the evidence establishes that on March 1, 1994, the Trust entered into a contract with Walden Homes, Inc. for Walden to build a house at Oakton Subdivision in Cobb County. Walden, in turn, entered into a contract with Williams Brothers in which Williams Brothers provided building supplies and materials for the building of the house. When Walden did not pay for the supplies by the April 26, 1994 due date, on June 30, 1994, Williams Brothers filed a materialman's claim of lien against the Trust's property in the amount of $35,177.31. On November 2, 1994, Williams Brothers sued Walden to enforce the lien, but was unable to obtain a judgment because Walden had declared bankruptcy. On April 21, 1995, Williams Brothers filed suit against the Trust, as the property owner, to enforce the lien. The Trust moved for summary judgment, claiming that the lien was unenforceable because Williams Brothers failed to comply with the notice requirement in OCGA § 44-14-361.1(a)(4).

According to OCGA § 44-14-361.1, liens "must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable." (Emphasis supplied.) OCGA § 44-14-361.1(a). OCGA § 44-14-361.1(a)(4) provides, in pertinent part, that "if the contractor ... shall be adjudicated a bankrupt ... the person or persons furnishing material, services, labor, and supplies shall be relieved of the necessity of filing an action or obtaining judgment against the contractor... as a prerequisite to enforcing a lien against the property improved by the contractor or subcontractor. Subject to Code Section 44-14-361, the person or persons furnishing material, services, labor, and supplies may enforce the lien directly against the property so improved in an action against the owner thereof, if filed within 12 months from the time the lien becomes due.... Within 14 days after filing such action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed."

In this case, Williams Brothers admittedly did not file a notice with the clerk of Cobb County within 14 days after filing its action against the Trust as required by OCGA § 44-14-361.1(a)(4). However, prior to proceeding against the Trust, Williams Brothers sought to recover from Walden and filed notice pursuant to OCGA § 44-14-361.1(a)(3). In two enumerations of error, Williams Brothers contends that since it timely filed notice of claim to enforce the lien against Walden pursuant to OCGA § 44-14-361.1(a)(3), then, as a matter of law, it is not required to file a second notice pursuant to OCGA § 44-14-361.1(a)(4) in connection with this action against the Trust. However, this exact issue was decided adversely to Williams Brothers in Northside Wood Flooring v. Borst, 232 Ga.App. 569, 502 S.E.2d 508 (1998).

In Northside Wood, two subcontractors furnished building materials to a general contractor for use in building two residences. When the general contractor failed to pay the subcontractors, they filed notices of liens against the two residences and brought suits against the general contractor pursuant to OCGA § 44-14-361.1(a)(3). After the general contractor filed a bankruptcy...