Summary
In Tri-City Constr. Co. v. Sandy Plains Partnership, 206 Ga. App. 506 (426 SE2d 57) (1992), the lien at issue stated that it became due on a date more than three months from the date the lien was filed and this court held that it was unenforceable.
Summary of this case from D. C. Ecker Construction v. Ponce InvestmentOpinion
A92A1088.
DECIDED NOVEMBER 30, 1992.
Action on lien. Cobb Superior Court. Before Judge Kreeger.
Caldwell, Heggie Helton, Clifton G. Caudle, Jeffrey A. Billings, for appellant.
Summers Jones, W. Dennis Summers, Robert H. Stansfield, for appellee.
Tri-City Construction Company, Inc. (Tri-City) appeals the grant of summary judgment in favor of Sandy Plains Partnership (Sandy Plains) on Tri-City's action to enforce its lien.
Tri-City was the general contractor on a project in Cobb County owned by Sandy Plains. A dispute arose and Tri-City filed its claim of lien on November 27, 1989. It stated that it was for a "claim which became due on July 31, 1989 for the material and services rendered by Tri-City" on the project.
Although Sandy Plains denied the allegations of paragraph six of Tri-City's complaint seeking enforcement of the lien, which paragraph stated that the construction "was completed on or about November 8, 1989," Sandy Plains alleged in its counterclaim that "Tri-City did not complete the project in a timely fashion and the project was not completed until November 21, 1989."
On August 16, 1990, Tri-City filed its complaint, seeking to enforce its lien. Attached to that complaint and filed that same day was a document labelled "Claim of Lien (Amended)," which stated that "The claim . . . became due on November 8, 1989."
On January 10, 1991, Sandy Plains filed its motion for summary judgment. On February 8, 1991, Sandy Plains filed its motion to stay pending arbitration. The court granted Sandy Plains' motion, finding that the claim of lien stated it was due July 31, but the claim was not filed until November 27, 1989, making it untimely pursuant to OCGA § 44-14-361.1 (a) (2) and that the purported amendment was ineffective to resurrect the claim, relying on Shirah Contracting Co. v. Waite, 143 Ga. App. 355 ( 238 S.E.2d 728) (1977).
1. While, as held in Coe Payne Co. v. Foster Kleiser, 258 Ga. 161 ( 366 S.E.2d 292) (1988), the complaint seeking to enforce a lien is subject to amendment pursuant to OCGA § 9-11-15 (c), there is no comparable provision regarding amendment of the actual claim of lien after the expiration of the three-month period. Shirah, supra. Therefore, Tri-City is bound by the original lien which either is, or is not, valid standing alone.
2. While the lien of a contractor attaches from the time the work is commenced, "[i]n order to become effective as a claim two requirements must be met by the lienor. 1) There must be a substantial compliance with the contract for building . . . by the party claiming the lien. 2) The claim must be filed for record within three months after the completion of the work. . ." (Emphasis supplied.) Troup Enterprises v. Mitchell, Carrington c., 199 Ga. App. 173, 175 (1) ( 404 S.E.2d 337) (1991). Therefore, a premature lien is not effective. Id.
This is not a situation where no calendar date was included but the requisite statutory language was, as in Georgia North Contracting v. Haney Haney Constr. c., 204 Ga. App. 366, 367 (1a) ( 419 S.E.2d 348) (1992), or where the correct date was included in lieu of the statutory language, as in L W Supply Corp. v. Whaley Constr. Co., 197 Ga. App. 680 ( 399 S.E.2d 272) (1990). Instead, here there is an acknowledged incorrect date which is not within three months after completion of the work.
The court properly ruled that the lien was ineffective. See Consolidated Systems v. Amisub c., 261 Ga. 590, 591 (1) ( 408 S.E.2d 109) (1991).
3. The second enumeration alleges error in the court's refusal to stay the litigation pending arbitration pursuant to the Federal Arbitration Act.
In order for that act to be applicable, however, there must be a showing that the contract involves "commerce among the several states." 9 USCA § 1 et seq. Here, the only evidence put forward by Tri-City of such interstate commerce is the Loeffler affidavit which states in this regard that "Tri-City entered into contracts for the purchase of labor and materials from a number of vendors, subcontractors and materialmen located in states other than the State of Georgia. Many of the products incorporated in such construction were manufactured in states other than the State of Georgia." While the affidavit states it is based upon a review of the records of Tri-City, those records are neither attached to the affidavit nor contained in the record and the affidavit is insufficient under OCGA § 9-11-56 (e). Pratt v. Tri City Hosp. Auth., 193 Ga. App. 473 ( 388 S.E.2d 69) (1989).
Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.