Suwanee v. Orion Enterprises Sales & Serv. Inc.

Decision Date01 June 2011
Docket NumberNo. A11A0428.,A11A0428.
Citation309 Ga.App. 712,711 S.E.2d 71
CourtGeorgia Court of Appeals
PartiesMADISON RETAIL SUWANEE, LLC et al.v.ORION ENTERPRISES SALES & SERVICE, INC.

OPINION TEXT STARTS HERE

Stone & Bellus, Freddie Ray Stone, Jr., John Edward Bellus, Jr., Atlanta, for appellants.L. Matt Wilson, Atlanta, for appellee.MIKELL, Judge.

Orion Enterprises Sales and Svc., Inc. d/b/a Orion Access Control (“Orion”) sued Madison Retail–Suwanee, LLC (“Madison”), and Platte River Insurance Company (“Platte”) to recover under a lien discharge bond for monies allegedly owed for materials, services, and labor Orion supplied to a construction project. The trial court granted summary judgment to Orion. Madison and Platte appeal, but have shown no error. We affirm.

“To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant's favor, warrant judgment as a matter of law.” 1 We review de novo a trial court's grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.” 2

So construed, the evidence reflects that, pursuant to a Subcontract Agreement dated March 17, 2006, Orion served as subcontractor to Cannon/Estapa General Contractors, Inc. (“Cannon”), supplying labor, materials, and services to real property owned by Madison (the “property”). Cannon subsequently abandoned the job and refused payment to Orion. According to the affidavit of Michael J. White, Orion's vice president, Orion furnished labor, materials, and services to the property from March 17, 2006, through December 11, 2006, successfully fulfilling its obligations under the Subcontract Agreement. When Orion's final invoice for $25,851.05 was not paid by Cannon or Madison, Orion recorded a claim of lien against the property on February 12, 2007. Madison, as principal, and Platte, as surety, subsequently recorded a bond to discharge the lien.3 On November 21, 2007, Orion filed the underlying action against Cannon, Madison, and Platte, seeking in Count 6 of the Complaint to recover under the discharge bond against Madison and Platte. Orion obtained a default judgment against Cannon on April 14, 2008. Subsequently, Orion moved for summary judgment against Madison and Platte. The trial court granted Orion's motion for summary judgment as to recovery under the discharge bond, and Madison and Platte appeal.4

1. Appellants contend that the trial court erred in granting summary judgment to Orion because Orion failed to comply with the statutory requirement found in OCGA § 44–14–361.1(a)(2), that upon filing for record of the claim of lien, the lien claimant must send a copy of the claim of lien to the owner of the property. Because we conclude that Orion complied with the copy requirement of OCGA § 44–14–361.1(a)(2), we find this enumeration of error to be without merit.

Under Georgia's “detailed statutory scheme for regulating liens filed by materialmen who furnish supplies and materials for building, repairing, or improving property ..., a materialman must comply with the provisions of OCGA § 44–14–361.1(a) in order to ‘make good’ his lien.” 5 Under the statute as in effect when Orion filed its claim of lien,6 the materialman was required (among other things) to file a claim of lien with the clerk of the superior court of the county where the property is located,

[which] claim shall be in substance as follows: “A.B., [the materialman or other claimant], claims a lien in the amount of (specify the amount claimed) on the ... real estate ... of C.D. (describing the ... real estate ...), for satisfaction of a claim which became due on (specify the date the claim was due) for building, repairing, improving, or furnishing material (or whatever the claim may be).” 7

The statute further required the lien claimant to “send a true and accurate copy of the claim of lien ... to the owner of the property.” 8

Appellants point out that the claim of lien Orion filed with the clerk differs in certain respects from the copy of the claim of lien which Orion supplied to Madison. On the claim of lien filed with the clerk, a hand-written line states: “Owned by Madison Retail Suwannee [sic], LLC.” On the copy supplied to Madison, however, the word “Retail” is omitted, and the hand-written line reads: “Owned by Madison Suwannee [sic] LLC.”

Relying on Phillips, Inc. v. Historic Properties of America, 9 appellants argue that, because of the omission of the word “Retail,” the copy of the claim of lien sent to Madison did not constitute a “copy” in compliance with the statute. However, appellants' argument fails. In Phillips, we held that the lien claimant failed to preserve his lien because it transmitted the copy of its claim of lien to the property owner by facsimile, a method of delivery not authorized by the statute.10 Thus, Phillips does not address the issue in the case before us: whether the copy itself was adequate.

The Phillips decision does, however, shed light on the purpose of the claim of lien provisions found in OCGA § 44–14–361.1(a)(2). The Court ruled that “the inherent unreliability of service via facsimile does not serve the purpose of ensuring that the owner timely receives notice of a lien. 11 In the case before us, by contrast, the copy of the claim of lien sent to Madison by Orion clearly “served the purpose of ensuring that the owner timely receive [d] notice” of Orion's lien, even though one word of Madison's name was omitted.

We recognize that the statutes regarding materialman's liens are to be construed in favor of the property owner and against the materialman; and that the lien claimant must show strict compliance with the statute before a materialman's lien can be allowed.12 We have also noted, however, that with respect to the form of the claim of lien, this principle of strict construction is tempered by OCGA § 44–14–361.1(a)(2), which requires the form of the claim of lien to be “ in substance ” as set forth in the statute. 13 Thus, this Court has ruled that a claim of lien which did not “specify the date the claim was due” as provided in OCGA § 44–14–361.1(a)(2) nonetheless complied “in substance” with the form provided in that statute. 14 Similarly, we have ruled that a claim of lien was sufficient even though the property description set forth therein contained an incorrect plat book page number.15

In light of these decisions, we conclude that Orion's claim of lien was not ineffective by reason of the slight variance to be found in the copy supplied to Madison.

2. Appellants contend that Orion's lien is invalid because of the variance between the party which executed the Subcontract Agreement and the party which filed the claim of lien. We disagree.

The Subcontract Agreement was executed as follows: “Orion Access Control (“Subcontractor”) By: /s/Michael J. White ... Title: V.P.” White testified in his affidavit that “Orion Enterprises Sales and Svc., Inc. d/b/a Orion Access Control” furnished labor, services, and materials used in the improvements on the property. Invoices for this work were submitted in the name of “Orion Access Control.” Madison has presented no evidence that the entity supplying the materials was any other than Orion. On the claim of lien, the materialman's name is listed first as “Orion Enterprises Sales and Svc., Inc. and then repeated as “Orion Enterprises Sales & Svc., Inc..... D.B.A. Orion Access Control.” It is this entity which filed suit against the general contractor, Cannon, and appellants Madison and Platte.

Appellants argue that Orion failed to register “Orion Access Control” as a trade-name, and therefore Orion cannot file a claim of lien for work done under a contract executed in the name of “Orion Access Control.” However, whether the trade-name was properly registered or not does not have any impact on the issue at hand. Orion fulfilled its obligations under the Subcontract Agreement with Cannon, the general contractor; Orion filed its claim of lien for work it had performed and for which it had not been paid; and Orion brought the underlying action against Cannon and appellants on the lien bond. Thus, the trial court did not err in determining that Orion was the proper party to enforce the lien, and therefore had authority to sue under the bond.

Appellants' reliance on Ga. North Contracting,16 Latham Plumbing & Heating Co. v. Ledbetter Trucks,17 and Nix v. Luke 18 is misplaced. In those cases, the party seeking to enforce the lien was not the same party which filed the claim of lien. In Ga. North Contracting, a claim of lien filed by an individual could not be enforced by an action brought by the corporation that was in privity of contract with the owner of the real estate. In that case the individual lien claimant had no standing to assert lien rights, and the lien was found to be unenforceable. 19 Similarly, in Latham Plumbing, because the contract and the claim of lien were executed by an individual, the lien could not be enforced by an action brought by the corporation of which the individual was an officer. 20 Lastly, in Nix, where the claim of lien was filed in the name of a corporation, it was not enforceable in an action brought by an individual. 21 In the case at bar, on the other hand, the corporate plaintiff seeks to recover under the bond on a lien which it filed for work it performed. The trial court did not err in determining that Orion's claim of lien was not unenforceable on this ground.

3. Appellants argue that Orion failed to comply with the lien statute in filing a concurrent action against Cannon on the underlying contract and against Madison and Platte on the discharge bond. We disagree.

In order to perfect a lien, after filing the claim of lien for record and sending a copy thereof to the property owner, the lien claimant must “commence an action against the contractor to recover the amount of the claim...

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4 cases
  • Fed. Trust Bank v. C.W. Matthews Contracting Co.
    • United States
    • Georgia Court of Appeals
    • October 21, 2011
    ...to present rebuttal evidence showing the materials were not used on the property); see generally Madison Retail Suwanee v. Orion Enterprises, etc., 309 Ga.App. 712, 711 S.E.2d 71 (2011) (affirming grant of summary judgment to materialman in action to recover on lien discharge bond obtained ......
  • Tipton v. State
    • United States
    • Georgia Court of Appeals
    • May 22, 2013
    ...dismiss from the trial court, her enumeration of error presents nothing for our review. See Madison Retail Suwanee v. Orion Enterprises Sales & Svc., 309 Ga.App. 712, 717(4), 711 S.E.2d 71 (2011); Allen v. Santana, 303 Ga.App. 844, 847–848(3), 695 S.E.2d 314 (2010). 2. Tipton further argues......
  • Morman-Johnson v. Hathaway
    • United States
    • Georgia Court of Appeals
    • March 19, 2012
    ...not raised and ruled on by the trial court.” (Citations, punctuation and footnotes omitted.) Madison Retail Suwanee v. Orion Enterprises etc., 309 Ga.App. 712, 717(4), 711 S.E.2d 71 (2011). In the absence of a ruling by the trial court on this issue, there is nothing for this court to revie......
  • Morman-Johnson v. Hathaway
    • United States
    • Georgia Court of Appeals
    • October 28, 2011
    ...not raised and ruled on by the trial court." (Citations, punctuation and footnotes omitted.) Madison Retail Suwanee v. Orion Enterprises &c., 309 Ga. App. 712, 717 (4) (711 SE2d 71) (2011). In the absence of a ruling by the trial court on this issue, there is nothing for this court to revie......
1 books & journal articles
  • Construction Law - Frank O. Brown, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 63-1, September 2011
    • Invalid date
    ...Id. at 170, 704 S.E.2d at 464-65. 109. Id. at 170-71, 704 S.E.2d at 465. 110. Id. 111. 309 Ga. App. 351, 710 S.E.2d 150 (2011). 112. 309 Ga. App. 712, 711 S.E.2d 71 (2011). 113. 308 Ga. App. 680, 708 S.E.2d 619 (2011). 114. 305 Ga. App. 863, 700 S.E.2d 609 (2010). 115. 304 Ga. App. 419, 696......

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