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Few v. Capitol Materials Inc.

Plaintiff's failure to perfect its lien by commencing an action against the contractor as required by O.C.G.A. § 44-14-361.1 barred its recovery against the surety bond which defendant posted to secure a discharge of the plaintiff's lien on his property.

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We granted the writ of certiorari to consider whether a supplier must sue a contractor before suing the property owner who has discharged the materialman’s lien against his property by filing a bond. Because the release of the lien through the filing of a bond does not create a separate action, we hold that the supplier is still required to commence an action against the contractor under OCGA § 44-14-361.1 before suing the property owner on the bond. Since Capitol neither filed a claim against the contractor nor met any of the exceptions that would relieve it from first suing the contractor, we reverse.

Property owner Joseph Few contracted with The Perez Group to build a house. Six days after Perez filed for bankruptcy, it purchased drywall materials from Capitol Materials, a supplier. When Perez failed to pay for the materials, Capitol filed a materialman’s lien against Few’s property. Few discharged the lien by filing a bond as provided in OCGA § 44-14-364. Capitol then sued Few to collect on the bond without commencing an action against the contractor. The trial court granted summary judgment to Capitol, and the Court of the Appeals for the State of Georgia affirmed, distinguishing between an action on the lien and an action to recover on the bond.1

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