United Electric Company v. Underground Festival

Full title: UNITED ELECTRIC COMPANY, INC. v. UNDERGROUND FESTIVAL, INC. et al

Court: Court of Appeals of Georgia

Date published: Jan 28, 1992

415 S.E.2d 297 (Ga. Ct. App. 1992)

415 S.E.2d 297

Opinion

A91A1631.

DECIDED JANUARY 28, 1992.

Lien foreclosure. Fulton State Court. Before Judge Carnes.

McReynolds Welch, J. Michael Welch, Frederic S. Beloin, for appellant.

Alston Bird, John I. Spangler III, Linda K. Disantis, for appellees.

CARLEY, Presiding Judge.

Appellant-plaintiff in this lien foreclosure action appeals from the grant of summary judgment in favor of appellee-defendants. Unless otherwise specified, the relevant facts are the same as those in D N Elec. v. Underground Festival, 202 Ga. App. 435 (___ S.E.2d ___) (1991).

1. Construing the evidence of record most favorably for appellant, appellee Underground Festival, Inc. (UFI) "is the `true owner' against whose interest in the property a viable lien can attach. [Cits.]" D N Elec. v. Underground Festival, supra at 436 (1).

2. Under a proper construction of the evidence of record, the lack of any immediate contract between UFI and appellant would likewise not constitute a viable basis for the grant of summary judgment in favor of UFI. D N Elec. v. Underground Festival, supra at 437 (2).

3. Here, unlike D N Elec. v. Underground Festival, supra at 437 (3), UFI relies upon an affidavit obtained from the contractor with whom appellant had contracted. This affidavit was dated June 13, 1989, and is in substantial compliance with OCGA § 44-14-361.2 (a) (2). Star Mfg. v. Edenfield, 191 Ga. App. 665 (2) ( 382 S.E.2d 706) (1989); Dixie Concrete Svcs. v. Life Ins. Co. of Ga., 174 Ga. App. 866 ( 331 S.E.2d 889) (1985). It is undisputed that this affidavit was given in connection with the final payment of the contract price and that the improvements were substantially completed by June 13, 1989. Compare CCB Indus. v. Stroud, 198 Ga. App. 658 (1) ( 402 S.E.2d 527) (1991). It follows that the trial court correctly granted summary judgment in favor of UFI.

4. Assuming, without deciding, that our holding in Divisions 1 and 2 would not otherwise be applicable to appellee Jacqueline Amirmonazah, our holding in Division 3 would be.

Judgments affirmed. Beasley, J., and Judge Arnold Shulman concur.

DECIDED JANUARY 28, 1992.