Phillips, Inc. v. Historic Properties, A03A0346.
| Decision Date | 15 April 2003 |
| Docket Number | No. A03A0346.,A03A0346. |
| Parties | PHILLIPS, INC. v. HISTORIC PROPERTIES OF AMERICA, LLC. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Oliver, Maner & Gray, James P. Gerard, Savannah, for appellant.
Ellis, Painter, Ratterree & Bart, Sarah B. Akins, Savannah, for appellee.
Historic Properties of America, LLC (HPA) and A.M. Helms, Inc. entered into a construction agreement for the development of property located at 321 West Broughton Street in Savannah. Helms hired Phillips, Inc. to provide flooring materials and labor for the project. Helms failed to pay Phillips in accordance with their agreement, and Phillips filed suit against Helms seeking payment of amounts owed and against HPA to perfect its materialman's lien against the property.1 HPA filed a motion for summary judgment, contending that Phillips failed to provide it with proper notice of the lien as required by OCGA § 44-14-361.1(a)(2). The trial court agreed that the notice to HPA, which was sent via facsimile transmission, was not authorized under the statute, and granted HPA's motion for summary judgment. Phillips appeals. OCGA § 44-14-361.1(a)(2) provides, in pertinent part, as follows:
(a) To make good the liens specified in paragraphs (1) through (8) of subsection (a) of Code Section 44-14-361, they 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: ... (2) ... At the time of filing for record of his claim of lien, the lien claimant shall send a copy of the claim of lien by registered or certified mail or statutory overnight delivery to the owner of the property or contractor, as the agent of the owner.
(Emphasis supplied.)
We agree with the trial court that this language is mandatory, clear, and unequivocal. And, as Phillips recognizes in its brief on appeal, it has long been the rule that U.S. Filter Distrib. Group v. Barnett, 273 Ga. 254, 255, 538 S.E.2d 739 (2000). However, citing Grubb v. Woodglenn Properties, 220 Ga.App. 902, 905(4), 470 S.E.2d 455 (1996), Phillips argues that this Court has previously allowed a "flexible" construction of the notice requirement found in OCGA § 44-14-361.1(a)(2).
In Grubb, notice was given by personal service of a copy of the lien on the homeowner's wife, and we deemed this notice sufficient because it exceeded the statutory requirement that notice be sent by registered or certified mail or statutory overnight delivery. Grubb v. Woodglenn Properties, 220 Ga.App. at 905(4), 470 S.E.2d 455. Phillips urges us to find that sending a copy of the lien by facsimile transmission likewise equals or exceeds the statutory requirements. This we decline to do. Instead, we agree with the trial court "that the inherent unreliability of service via facsimile does not serve the purpose of ensuring that the owner timely receives notice of a lien." We also find instructive our Supreme Court's analysis in Clater v. State, 266 Ga. 511, 512-513(3), 467 S.E.2d 537 (1996). The issue in Clater was whether notice by facsimile transmission constituted substantial compliance with the notice provision of the Interstate Agreement on Detainer (IAD). In that case,...
To continue reading
Request your trial
-
Suwanee v. Orion Enterprises Sales & Serv. Inc.
...Builders Properties, 298 Ga.App. 120, 122, n. 1, 679 S.E.2d 356 (2009). 7. (Emphasis supplied.) OCGA § 44–14–361.1(a)(2) (2008). 8. Id. 9. 260 Ga.App. 886, 581 S.E.2d 389 (2003). 10. Id. at 886–887, 581 S.E.2d 389. See OCGA § 44–14–361.1(a)(2) (2008) (lien claimant required to provide owner......
-
Logan v. Bon Ton Stores, Inc.
...(holding the service of the "initial pleading by facsimile was not substantial compliance"); Phillips, Inc. v. Historic Props. of Am. , LLC, 260 Ga.App. 886, 581 S.E.2d 389, 390 (2003) (finding service via facsimile does not substantially comply with the statute because the "inherent unreli......
-
Taylor v. State, No. A03A0553.
......723, 725(4), 342 S.E.2d 678 (1986); Phillips" v. State, 242 Ga.App. 404, 405, 530 S.E.2d 1 (2000). \xC2"......
-
Consumer Portfolio Services, Inc. v. Rouse, A06A1885.
...suggest that alternative forms of service would be acceptable. Id. We followed this rationale in Phillips, Inc. v. Historic Properties of America, 260 Ga. App. 886, 581 S.E.2d 389 (2003), and rejected the argument that notice sent by a facsimile transmission complied with the notice provisi......
-
Construction Law - Dennis J. Webb, Jr., Justin S. Scott, Henry L. Balkcom Iv, and Dana R. Grantham
...App. at 192, 433 S.E.2d at 115-16). 130. Id. (citing Daniels v. Johnson, 191 Ga. App. 70, 73, 381 S.E.2d 87, 91 (1989)). 131. Id. 132. 260 Ga. App. 886, 581 S.E.2d 389 (2003). 133. Id. at 886, 581 S.E.2d at 389; O.C.G.A. Sec. 44-14-361.1(a)(2) (2002). 134. 260 Ga. App. at 886, 581 S.E.2d at......