Levy v. G. E. C. Corp., 43581

• Decision Date: 22 April 1968
• Docket Number: No. 43581,No. 1,43581,1
• Citation: 117 Ga.App. 673,161 S.E.2d 339
• Parties: Ted LEVY v. G.E.C. CORPORATION et al
• Court: Georgia Court of Appeals

Page 339

161 S.E.2d 339

117 Ga.App. 673

Ted LEVY v. G.E.C. CORPORATION et al.

No. 43581.

Court of Appeals of Georgia, Division No. 1.

April 22, 1968.

Syllabus by the Court

1. Under the provisions of the Civil Practice Act (Code § 81A-156(h)) the grant of a summary judgment on one count of a three count petition is appealable, though the remaining counts are still pending in the trial court.

2. In order to make good the lien provided to an architect for the furnishing of services for the improvement of realty he must file for recording his claim for lien within three months from the date of the furnishing of the last service. Ted Levy, an architect, brought suit in three counts against G.E.C. Corporation as owner of an estate for years in certain realty, A. T. Ehlers as president of G.E.C. Corporation, L. B. Branan, Jr. as the contractor who made improvements on the realty, and Dorothy M. and R. H. Cording, as owners of the reversion or remainder in the realty, alleging in Count 1 that prior to May 4, 1967 the Cordings had owned the realty, but on that date conveyed to G.E.C. Corporation an estate for 99 years in it, and that the Cordings, Ehlers and Branan had, prior to May 4, 1967, entered into an arrangement whereby Branan and Ehlers were to work up a proposal for the improvement of the property, which, if satisfactory to the Cordings, would result in the conveyance by them to G.E.C. of the estate for years. Branan would then construct the project as contractor, and from its completion it would pay to the Cordings an annual percentage rental as the consideration for the conveyance to it of the estate for years.

It was also alleged that in the late spring or early summer of 1966, and in accordance with the arrangement, Ehlers and Branan employed Levy as architect to work up the plans, specifications, etc. for developing and improving the property. Upon his recommendation they determined to construct 118 units of Garden Apartments. Schematic design studies, design development documents and working drawings and specifications, consisting of plans, elevations and specifications illustrating the size and character of the project, the kinds of materials to be used, types of structures to be constructed, mechanical and electrical systems to be used, etc., and the necessary bidding information were prepared and delivered to Ehlers and Branan so that these might be used in making necessary financial arrangements, and they were so used, as well as for obtaining building permits and in developing the property. However, plaintiff alleges that after delivery of the plans to Ehlers, Branan and G.E.C. Corporation, they caused the plans to be copied by a draftsman employed by Branan, and that Levy's name was removed therefrom and another engineer's name substituted in its place, with some minor and inconsequential changes in the plans.

Levy was not asked for anything further, and did nothing more in the furnishing of plans, etc., or services, but in early June, 1967, he learned that the defendants had started construction of the apartment project, using the plans and specifications which he had supplied, and on June 14, 1967, he filed his claim for lien in the amount of $48,600. It was recorded on the same day. On October 16, 1967, he filed this suit seeking in Count 1 the foreclosure of the lien.

In count 2 he alleged that the defendants Ehlers, Branan and G.E.C. Corporation had converted to their own use the drawings, plans, specifications and sketches which plaintiff had prepared for use in improving the property and that these were of the value of $49,000, and judgment was asked against these defendants in that amount.

In Count 3 he alleged that the defendants Ehlers, Branan and G.E.C. Corporation had wrongfully appropriated the plans, drawings, specifications, etc., without plaintiff's permission, consent and without compensating him, and that while in their possession they had copied them, thereby infringing upon plaintiff's common law copyright and interest in them, all to his damage of $49,000, and sought judgment against these defendants for that sum.

Plaintiff thereafter voluntarily dismissed as to the Cordings, leaving all three counts against Ehlers, Branan and G.E.C. Corporation.

Defendants moved for summary judgment as to Count 1 and presented, inter alia, the deposition of Mr. Levy in which he testified he had delivered the plans, drawings, specifications, etc., to the defendants 'some time in the fall of 1966.' There was testimony in his deposition that the drawings plans, etc., supplied were preliminary in nature. Defendants in their answer and cross claim alleged that the sum total of these delivered...