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Harris Ventures Inc. v. Mallory and Evans Inc.

The fatally deficient Notice of Commencement for the project in question relieved a subcontractor of its obligation to provide a Notice to Contactor pursuant to OCGA § 44-14-361.5 a, c.

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Harris Ventures, Inc. “Harris” filed this action on a materialman’s lien discharge bond against Mallory & Evans, Inc. “Mallory” and Travelers Casualty and Surety Co. of America, Inc. “Travelers”, seeking to recover payment allegedly owed for labor that Harris supplied to the Emory Johns Creek Hospital project. The parties filed cross-motions for summary judgment. The trial court denied Harris’s motion and granted summary judgment to appellees, ruling that Harris’s materialman’s lien was unenforceable because Harris failed to perfect its lien rights by sending a Notice to Contractor pursuant to OCGA § 44-14-361.5 a, c. Harris appeals, arguing that its duty to send a Notice to Contractor did not arise because the Notice of Commencement filed by the Project owner’s contractor was legally deficient. For the reasons that follow, we reverse the grant of summary judgment to appellees, vacate the trial court’s order denying Harris’s motion for summary judgment and remand this case to the trial court for additional proceedings. “Summary judgment is proper where the movant shows no genuine issue of material fact exists and entitlement to summary judgment as a matter of law.” Lane Supply v. W. H. Ferguson & Sons , 286 Ga. App. 512, 513 649 SE2d 614 2007. See OCGA § 9-11-56 c. On appeal, we review a summary judgment ruling de novo. Lane Supply , 286 Ga. App. at 513.

The evidence in this case shows that work on the Project commenced in February 2005. The owner of the Project was EHCA Dunwoody, LLC. In May 13, 2005, the Project’s general contractor filed a Notice of Commencement pursuant to OCGA § 44-14-361.5 b.1 The Notice of Commencement erroneously identified the Project’s owner as “EHCA John’s Creek, LLC” and did not include a legal description of the Project in accordance with OCGA § 44-14-361.5 b 2, 3.

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