Dodson v. Earley

• Decision Date: 16 March 1982
• Docket Number: No. 63109,63109
• Citation: 290 S.E.2d 105,161 Ga.App. 666
• Parties: DODSON v. EARLEY et al.
• Court: Georgia Court of Appeals

Page 105

290 S.E.2d 105

161 Ga.App. 666

DODSON v. EARLEY et al.

No. 63109.

Court of Appeals of Georgia.

March 16, 1982.

Daniel T. Stringer, Canton, for appellant.

David S. Marotte, Marietta, for appellees.

POPE, Judge.

Appellant Ray Dodson d/b/a Villa Rica Cabinet Company brought suit against appellees Thomas D. Earley et ux. In his original complaint Dodson sought to foreclose his materialman's lien on real property owned by appellees. Dodson thereafter amended his complaint by adding a count which set forth a claim in quantum meruit. Appellees moved for judgment on the pleadings as to Count I of the complaint and moved to dismiss Count II pursuant to Code Ann. § 81A-112(b). Dodson brings this appeal from the trial court's grant of those motions dismissing each count of his complaint.

1. The first count of Dodson's verified complaint alleged that he had furnished labor and materials on certain improvements made to appellees' property pursuant to a contract with one John Hembree d/b/a Hembree Construction Company. The complaint further alleged that Hembree had absconded and his whereabouts were unknown. For this reason Dodson sought to foreclose his lien in rem directly against appellees, the owners of the real property improved. See Code Ann. § 67-2002(3).

Dodson's complaint alleged that February 1, 1980 was the last day on which labor and materials were furnished pursuant to his contract. Code Ann. § 67-2002(3) requires that an action by a subcontractor such as Dodson for the recovery of his claim in rem against the property owner must be commenced within 12 months from the date the same became due. The foreclosure action in the case at bar was not filed until February 17, 1981. Since this action was not brought within 12 months from February 1, 1980, the date Dodson's claim became due (see Dixie Lime etc. Co. v. Ryder Truck Rental, 140 Ga.App. 188(1), 230 S.E.2d 322 (1976)), the trial court correctly dismissed Count I of the complaint. Adair Mtg. Co. v. Allied Concrete Enterprises, 144 Ga.App. 354(1), 241 S.E.2d 267 (1977), affd. 241 Ga. 121, 243 S.E.2d 888 (1978).

2. Dodson amended his complaint by adding a second count thereto on the day before the hearing scheduled on appellees' motion for judgment on the pleadings. Count II stated in full: "[Dodson] is entitled to recover of [appellees] in quantum meruit." Following the scheduled hearing, the trial court entered an order dismissing Count I of the complaint. Shortly thereafter appellees moved to dismiss Count II of the complaint on the ground that it failed to state a claim upon which relief could be granted.

"Black's Law Dictionary defines the words 'quantum meruit' as: 'The common count in an action of assumpsit for work and labor, founded on an implied assumpsit or promise on the part of the defendant to pay the plaintiff as much as he reasonably deserved to have for his labor.' " Johnson v. Higgins-McArthur Co., 99 Ga.App. 260, 263, 108 S.E.2d 299 (1959). In support of the cause of action set forth in Count II of his complaint, Dodson cited his verified response to certain interrogatories posed to him by appellees. His response in pertinent part was as follows: "Initial contact concerning the construction of the cabinets that are the subject of this suit was made by...