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Weber Air Conditioning Inc. v. Triple-R Pooler Inc.

Subcontractor that did not comply with notice of lien foreclosure requirements could not enforce its materialman's lien.

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Weber Air Conditioning, Inc. Weber attempted to enforce a materialman’s lien against property owned by Triple-R Pooler, Inc. and Tri-Rivers Foods, L. P. collectively, Pooler. Pooler sued to have the lien canceled, arguing that Weber’s failure to properly file notice of suit as required by OCGA § 44-14-361.1 a 3 rendered the lien unenforceable. The trial court granted Pooler’s motion for summary judgment, and Weber appeals. For reasons that follow, we affirm.

The undisputed facts establish that Weber was a subcontractor for D & M Contractors, Inc., which was building a fast food restaurant on Pooler’s property.1 When D & M Contractors allegedly did not pay Weber, Weber filed a materialman’s claim of lien against Pooler’s property in the amount of $27,154.00. On July 30, 1997, Weber sued D & M to recover the $27,154.00. On August 1, 1997, in accordance with OCGA § 44-14-361.1 a 3, Weber filed a Notice of Lien Foreclosure against Pooler. The notice, however, did not comply with the requirements set forth in that code section. Thus, on August 27, 1997, Weber voluntarily dismissed the original complaint and then re-filed its complaint along with an amended Notice of Lien Foreclosure.2

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