Eurostyle, Inc. v. Jones

397 S.E.2d 620, 197 Ga. App. 188

Opinions

Deen, Presiding Judge.

Eurostyle, Inc. d/b/a Walther Eurostyle Furnishings (Eurostyle) contracted with the Joneses to install cabinets in the Joneses’ home. When the Joneses refused to pay in full because of alleged defects in the cabinets, Eurostyle filed a lien against the Joneses’ property on November 14, 1988. On August 14, 1989, Eurostyle commenced an action to enforce the lien; Eurostyle, however, did not file any notice of commencement of suit. The Joneses counterclaimed, seeking damages for slander of title.

The trial court found that Eurostyle’s lien was rendered unenforceable by its failure to file a notice of commencement of suit at the time it commenced the action. The trial court, however, granted summary judgment for Eurostyle on the Joneses’ slander of title claim. In Case No. A90A1903, Eurostyle appeals from the trial court’s dissolution of the lien, and in Case No. A90A1904, the Joneses appeal from the trial court’s grant of partial summary judgment for Eurostyle on the slander of title claim. Held’.

1. OCGA § 44-14-361.1 (a) (3) provides “[t]he commencement of an action for the recovery of the amount of his claim within 12 months from the time the same shall become due. In addition, at the time of filing such action, the party claiming the lien shall file a notice with the clerk of the superior court of the county where the subject lien was filed.” Filing of the notice of commencement of the action is a prerequisite to the enforceability of the lien. Statham Machinery &c. Co. v. Howard Constr. Co., 160 Ga. App. 466 (287 SE2d 249) (1981); D & T Glass v. Barrow Enterprises, 172 Ga. App. 797 (325 SE2d 170) (1984). It was undisputed that Eurostyle did not file such a notice, and the trial court properly found the mechanic’s lien unenforceable.

2. The trial court granted summary judgment for Eurostyle on the Joneses’ claim for slander of title, on the grounds that Eurostyle’s filing of the lien and action to enforce the lien were privileged under OCGA § 51-5-8. We agree with that determination.

Judgments affirmed.

Pope and Beasley, JJ., concur specially.