Ford Motor Co. v. Noland Co. , 186 Ga. App. 541 ( 1988 )

McMurray, Presiding Judge.

Plaintiff Noland Company filed this action to foreclose a materialman’s lien on the property of defendant Ford Motor Company. The lien in question arose from a contract between defendant Ford Motor Company and Barge/Arconic, a Joint Venture (“Barge”) for the construction of certain improvements at an automobile assembly plant. Barge entered into a sub-contract for the furnishing of labor and materials with Huffman-Wolfe Company. Huffman-Wolfe Company issued a purchase order to plaintiff who delivered, pursuant thereto, goods and materials which have not been paid for, of an alleged value of $13,181.16.

Plaintiff’s claim became due on June 14, 1984. Huffman-Wolfe Company filed a voluntary bankruptcy petition on August 6, 1984, therefore, under the provisions of OCGA § 44-14-361.1 (a) (4), plaintiff was relieved of the necessity of filing an action or obtaining judgment against the sub-contractor to whom the materials were furnished. On September 13,1984, plaintiff filed its lien in the amount of $11,832.47 against the property of defendant Ford Motor Company.

Plaintiff filed the instant action on June 3, 1985, in the State Court of Fulton County and on August 8, 1985, filed a notice of the pendency of this action with the Clerk of the Superior Court of Fulton County.

Plaintiff Noland Company and defendant Ford Motor Company filed motions for summary judgment. The state court denied defendant’s motion for summary judgment and partially granted the plaintiffs motion for summary judgment, awarding plaintiff $11,832.27, the amount stated in its claim of lien. The state court’s judgment added Barge and St. Paul Fire and Marine Insurance Company, as defendants, because a bond to dissolve the lien had been filed with the Clerk of the Superior Court of Fulton County on January 6, 1986, with these parties as principal and surety thereon.

Defendants appealed (Case No. 75161) and plaintiff cross-appealed (Case No. 75162) from the state court’s order partially granting plaintiff’s motion for summary judgment and denying the motion for summary judgment of defendant Ford Motor Company. In Case No. 75161 defendants contend that the state court erred in partially granting plaintiff’s motion for summary judgment and denying defendant Ford Motor Company’s motion for summary judgment because plaintiff failed to comply with OCGA § 44-14-361.1 (a) in that the statute requires that notice of an action to perfect and foreclose a lien must be filed within a reasonable period of time. In Case No. 75162 plaintiff contends the state court erred in limiting its recovery to the amount set forth in the claim of lien. Held:

OCGA § 44-14-361.1 (a) provides in part that: “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: ... (3) The commencement of an action for the recovery of the amount of his claim within 12 months from the time the same shall become due. In addition, at the time of filing such action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed . . .” (Emphasis supplied.)

In American Hosp. &c. Corp. v. Starline Mfg. Corp., 171 Ga. App. 790 (320 SE2d 857), we construed OCGA § 44-14-361.1 (a) (3) (at that time OCGA § 44-14-362) as requiring that the notice of a pending action to foreclose a mechanic’s or materialman’s lien must be filed within a reasonable time. Based in part on this decision, the state court concluded that in the case sub judice the notice was filed within a reasonable time.

In reaching its conclusion as to reasonableness, the state court also considered the nature of the property and whether it was offered for sale. Thus, the state court’s decision is based in part on the fact that the property at issue was an automobile assembly plant which the state court viewed as being less likely to be sold.

We reject the state court’s supposition that the determination of reasonableness be predicated on the nature of the property involved. Instead, the determination of a reasonable time for filing the notice required under OCGA § 44-14-361.1 (a) (3) should be based primarily upon the nature of that task. Therefore, the determination of a reasonable time for filing the notice should be predicated on the process of acquiring the information which must be included in the notice, preparation of the notice, and transporting the notice to the clerk of the superior court in which the property is located.

In American Hosp. &c. Corp. v. Starline Mfg. Corp., 171 Ga. App. 790, supra, we approved of a period of 16 days. In the case sub judice, 66 days elapsed from the time of filing of this action until notice thereof was filed. In view of the simple nature of the task involved and the public interest in “[providing] potential purchasers of the property such constructive notice as would enable them to determine whether the claim of lien, which would exist for only 12 months absent the filing of a suit to collect the underlying indebtedness within that period, was or was not still extant,” (Amafra Enterprises v. All-Steel Bldgs., 169 Ga. App. 388, 389 (1) (313 SE2d 110)) we hold as a matter of law that the notice of the instant action was not filed within a reasonable time.

In reaching our holding, we reject plaintiff’s contention that OCGA § 44-14-361.1 (a) (3) is not applicable to actions, such as the case sub judice, to enforce the lien directly against the property in an action against the owner thereof pursuant to OCGA § 44-14-361.1 (a) (4). None of the cases cited by plaintiff supports its position and all of the provisions of OCGA § 44-14-361.1 (a) are explicitly applicable to the liens specified in paragraphs (1) through (8) of subsection (a) of OCGA § 44-14-361.

In conclusion, we hold that the state court erred in denying the motion for summary judgment of defendant Ford Motor Company and in partially granting plaintiff’s motion for summary judgment. The issues raised in the cross-appeal are moot due to our decision on the main appeal.

Judgment reversed in Case No. 75161. Case No. 75162 dismissed.

Sognier, J., concurs. Beasley, J., concurs specially.