Northside Wood Flooring, Inc. v. Borst, No. A98A0146

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtJOHNSON.
Citation232 Ga. App. 569,502 S.E.2d 508
PartiesNORTHSIDE WOOD FLOORING, INC. v. BORST et al. CALHOUN/JOHNSON COMPANY v. SYLTE et al.
Decision Date19 May 1998
Docket Number No. A98A0146, No. A98A0147.

502 S.E.2d 508
232 Ga.
App. 569

NORTHSIDE WOOD FLOORING, INC.
v.
BORST et al.
CALHOUN/JOHNSON COMPANY
v.
SYLTE et al

Nos. A98A0146, A98A0147.

Court of Appeals of Georgia.

May 19, 1998.

Certiorari Denied October 2, 1998.


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

Blasingame, Burch, Garrard, Bryant & Ashley, William S. Ashley, Jr., Lloyd N. Bell, Athens, for appellees.

JOHNSON, Judge.

These cases involving materialmen's liens have been consolidated on appeal because they involve nearly identical factual and legal issues.

The pertinent facts of Case No. A98A0146 are as follows: Northside Wood Flooring, Inc. supplied materials to Mike Rice d/b/a Mike Rice Construction for use in his construction of a home for William and Dorothy Borst. On March 17, 1995, when Rice failed to pay Northside, Northside filed a claim of lien against the Borsts' property. The claim of lien alleged the debt came due on March 1, 1995. On March 31, 1995, Northside sued Rice in Barrow County. Northside filed a notice of the suit on April 7, 1995, in Greene County, where the improved property is located. In May 1995, Rice filed a Chapter 7 bankruptcy petition. In September 1995, Northside filed a proof of claim against Rice in bankruptcy court.

On March 8, 1996, Northside sued the Borsts in Greene County alleging that: the Borsts owned the improved property; they contracted with Rice who subcontracted with Northside to furnish the materials; Northside furnished the materials; the Borsts failed to pay Northside; Northside recorded a lien against the property; and Northside sued the contractor but did not obtain a judgment because [232 Ga. App. 570] the contractor filed bankruptcy.

502 S.E.2d 509
Northside prayed for a special lien on the property. The Borsts answered and moved for summary judgment, alleging the lien was unenforceable because Northside failed to sue them within 12 months after the claim came due and failed to file notice of the suit against them, when both procedures were required by OCGA § 44-14-361.1(a)(4)

The following facts are relevant to Case No. A98A0147: Calhoun/Johnson Company d/b/a Williams Brothers Lumber Company ("Williams Bros.") also furnished materials to Rice. These materials were used in the construction of a home for Richard and Janie Sylte. On March 13, 1995, after Rice failed to pay Williams Bros. for the materials, Williams Bros. filed a claim of lien against the Sylte property, alleging the claim came due on February 10, 1995. Williams Bros. sued Rice in Barrow County for money damages on March 20, 1995, and filed a notice of the suit against Rice on March 23, 1995. It is not clear from the record whether Williams Bros. filed a proof of claim in Rice's bankruptcy case.

Williams Bros. filed suit in Greene County against the Syltes on February 27, 1996, alleging that it contracted with Rice to provide materials for use in building the Syltes' home. The complaint alleged further that the Syltes breached the contract by failing to pay Williams Bros. and that Williams Bros. sued Rice to recover the debt, but no judgment against Rice was obtained due to his bankruptcy. Williams Bros. prayed for a special lien upon the property. The Syltes moved for summary judgment on the same bases as the Borsts, namely: Williams Bros. failed to file suit against them within 12 months after the claim came due and failed to file notice of this suit.

Without specifying its reasons therefor, the trial court entered summary judgment in favor of the Syltes and the Borsts (collectively "the property owners"). In Case No. A98A0146, Northside appeals from the grant of summary judgment to the Borsts. In Case No. A98A0147, Williams Bros. appeals from the grant of summary judgment to the Syltes. For the reasons which follow, we...

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2 practice notes
  • Saks Associates, LLC v. Southeast Culvert, No. A06A1606.
    • United States
    • United States Court of Appeals (Georgia)
    • November 9, 2006
    ...Materials, 274 Ga. 784, 784-785(1), 559 S.E.2d 429 (2002). 3. Id. at 785(1), 559 S.E.2d 429. 4. Northside Wood Flooring v. Borst, 232 Ga.App. 569, 570-571(1), 502 S.E.2d 508 (1998). 5. Northside Wood Flooring, supra at 572(2), 502 S.E.2d 508; Reid v. Harbin Lumber Co. etc., 172 Ga.App. 615,......
  • CALHOUN/JOHNSON v. HOUSTON FAMILY TRUST, No. A98A2311.
    • United States
    • United States Court of Appeals (Georgia)
    • March 5, 1999
    ...the Trust. However, this exact issue was decided adversely to Williams Brothers in Northside Wood Flooring 513 S.E.2d 761 v. Borst, 232 Ga.App. 569, 502 S.E.2d 508 In Northside Wood, two subcontractors furnished building materials to a general contractor for use in building two residences. ......
2 cases
  • Saks Associates, LLC v. Southeast Culvert, No. A06A1606.
    • United States
    • United States Court of Appeals (Georgia)
    • November 9, 2006
    ...Materials, 274 Ga. 784, 784-785(1), 559 S.E.2d 429 (2002). 3. Id. at 785(1), 559 S.E.2d 429. 4. Northside Wood Flooring v. Borst, 232 Ga.App. 569, 570-571(1), 502 S.E.2d 508 (1998). 5. Northside Wood Flooring, supra at 572(2), 502 S.E.2d 508; Reid v. Harbin Lumber Co. etc., 172 Ga.App. 615,......
  • CALHOUN/JOHNSON v. HOUSTON FAMILY TRUST, No. A98A2311.
    • United States
    • United States Court of Appeals (Georgia)
    • March 5, 1999
    ...the Trust. However, this exact issue was decided adversely to Williams Brothers in Northside Wood Flooring 513 S.E.2d 761 v. Borst, 232 Ga.App. 569, 502 S.E.2d 508 In Northside Wood, two subcontractors furnished building materials to a general contractor for use in building two residences. ......

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