Phillips Inc. v. Historic Properties of Am. LLC

Historic Properties of America, LLC HPA and A. M. Helms Inc. entered into a construction agreement for the development of property located at 321 West Broughton Street in Savannah, Georgia. Helms hired Phillips, Inc. to provide flooring materials and labor for the project. Helms failed to pay Phillips in accordance with their agreement, and Phillips filed suit against Helms seeking payment of amounts owed and against HPA to perfect its materialman’s lien against the property.1 HPA filed a motion for summary judgment, contending that Phillips failed to provide it with proper notice of the lien as required by OCGA § 44-14-361.1 a 2. The trial court agreed that the notice to HPA, which was sent via facsimile transmission, was not authorized under the statute, and granted HPA’s motion for summary judgment. Phillips appeals. OCGA § 44-14-361.1 a 2 provides, in pertinent part, as follows: a 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: . . 2 . . . At the time of filing for record of his claim of lien, the lien claimant shall send a copy of the claim of lien by registered or certified mail or statutory overnight delivery to the owner of the property or contractor, as the agent of the owner. Emphasis supplied.

We agree with the trial court that this language is mandatory, clear and unequivocal. And, as Phillips recognizes in its brief on appeal, it has long been the rule that “Georgia’s materialmen’s lien law ‘should be dealt with according to the strictest rules of strict construction.’ Green v. Farrar Lumber Co. , 119 Ga. 30, 33 46 SE 62 1903.” U. S. Filter Distrib. Group v. Barnett , 273 Ga. 254, 255 538 SE2d 739 2000. However, citing Grubb v. Woodglenn Properties , 220 Ga. App. 902, 905 4 470 SE2d 455 1996, Phillips argues that this Court has previously allowed a “flexible” construction of the notice requirement found in OCGA § 44-14-361.1 a 2.