Central Atlanta Tractor Sales, Inc. “CATS” sued Athena Development LLC a/k/a Athena Development Group LLC “Athena” and Accredited Surety & Casualty Co., Inc. a/k/a Accredited Surety and Casualty Inc. “Accredited Surety”, to recover on the bond which discharged CATS’s lien on Athena’s real property. The trial court granted Athena’s and Accredited Surety’s motion for summary judgment, and CATS appeals. We affirm because CATS could not recover on the bond in view of CATS’s failure to preserve its lien rights.Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.1So viewed, the evidence shows that in 2003, Athena, as owner, entered into an agreement with West Georgia Excavation, Inc. “WGE”, as contractor, to perform construction work on The Summit at Lost Mountain Project in Powder Springs. CATS supplied equipment to WGE, which WGE employed in its work on the project. WGE did no work on the project on or after February 16, 2004, which was the date WGE returned the last piece of CATS’s equipment. As averred by CATS’s vice-president, amounts owed by WGE to CATS for the use of the equipment become due on February 18, 2004, after the equipment was inspected. On March 12, 2004, CATS filed a claim of lien against the project in the amount of $101,090.75 on account of equipment furnished at the instance of WGE. CATS sued WGE on February 16, 2005, to recover on the claim. On or about July 28, 2005, Athena, as principal, and Accredited Surety, as surety, provided a bond in accordance with OCGA § 44-14-364 to discharge CATS’s lien on the project. After obtaining a default judgment against WGE, CATS filed this suit on April 26, 2006, to recover on the bond.
If a lien release bond is properly obtained and recorded under OCGA § 44-14-364, “the bond stands in the place of the real property as security for the lien claimant.”2 Thus, the principal and the surety on the bond are entitled to raise any defense that would have been available as a defense to the lien foreclosure. This ruling means that the lien claimant must first seek to recover monies owed from the contractor, the party with whom it has a contract, before seeking to recover from the property owner, with whom the supplier has no contractual relationship.3At issue is whether CATS pursued its claim in a timely fashion against its contractor, WGE, by “commencing an action against the contractor to recover the amount of the claim within 12 months of when the claim became due.”4 CATS contends that its February 16, 2005 action was timely because its claim against WGE became due on February 18, 2004, the date CATS inspected its equipment for damage. Athena and Accredited Surety argue that CATS’s action was untimely because the lien law does not allow for an inspection period in determining the due date of CATS’s claim. We agree with Athena and Accredited Surety.
