*1 Nancy Jordan, Attorneys, I. Assistant District FORD al. v. NOLAND MOTOR COMPANY et

COMPANY; and vice versa. 763) Presiding Judge. McMurray, Company Noland this action to foreclose a materi- Plaintiff filed Company. The alman’s lien on the of defendant Ford Motor question lien in arose from defendant Ford Motor a contract between Company con- Barge/Arconic, (“Barge”) and a Joint Venture for the assembly plant. improvements struction of certain at an automobile Barge furnishing entered into a sub-contract Company Company. materials with Huffman-Wolfe Huffman-Wolfe delivered, thereto, purchase issued a plaintiff order to who for, goods paid alleged and materials which have not been of an value $13,181.16. Plaintiff’s claim became due on June 1984. Huffman-Wolfe 6, 1984, Company voluntary bankruptcy petition filed August therefore, (a) (4), plain- under the tiff necessity obtaining judg- was relieved an action ment against the sub-contractor to whom the materials were fur- 13,1984, nished. plaintiff On its lien the amount of filed $11,832.47 against Company. 3, 1985,

Plaintiff filed the instant action on June the State County Court of Fulton August and on filed a notice of the pendency Superior of this action with the Clerk of the Court of Fulton County. Company

Plaintiff Noland and defendant Ford Motor motions for The state court denied defend- summary ant’s motion for judgment partially granted plain- and $11,832.27, tiffs summary judgment, plaintiff motion for awarding amount stated in judgment its claim of lien. The state court’s added Barge and St. Company, Paul Fire and Marine Insurance as defend- ants, because a bond to dissolve the lien had been filed with the Clerk Superior 6, 1986, County January Court of Fulton parties these principal surety thereon. (Case 75161) appealed plaintiff cross-ap-

Defendants No. (Case pealed partially grant- No. from the state court’s order ing plaintiff’s summary judgment denying the motion summary judgment Company. Case defendant Ford Motor No. in partially 75161 defendants contend that summary judgment denying de- motion be- Company’s fendant Ford Motor comply plaintiff 44-14-361.1 with OCGA cause the statute failed to perfect requires and foreclose action to In Case No. of time. be filed within a reasonable limiting plaintiff erred state court contends the lien. Held: in the claim of to the set forth amount *2 (a) good provides part make the in that: “To § OCGA 44-14-361.1 (a) (1) (8) specified paragraphs through of Code in of subsection liens in 44-14-361, declared accordance must be created and Section any following provisions, them the lien of of and on failure the (3) of ... The commencement shall not be effective or enforceable: an within 12 of his claim of the amount action addition, In at the due. months from the time the same shall become party claiming filing action, shall file no- the the lien time of county superior the wherein the the clerk of tice with of the court (Emphasis supplied.) lien was Corp. Hosp. 171 Ga. In American &c. v. Starline (3) (a) App. 857), § 790 we construed OCGA 44-14-361.1 (at 44-14-362) requiring § time OCGA the notice of a that pending to action foreclose a mechanic’s materialman’s part decision, in the filed within a time. Based on this reasonable judice state in the notice was filed court concluded that case sub the within a reasonable time. reaching reasonableness,

In state its conclusion as to the property was also considered the nature of the and whether it offered part Thus, the in fact sale. state court’s decision is based the property assembly plant that the at issue was an which automobile likely being the state court viewed as less to be sold. reject supposition

We the state court’s the determination predicated property reasonableness be on the nature of the involved. Instead, the of a time the determination reasonable notice required upon (a) (3) primarily § under OCGA 44-14-361.1 should be based Therefore, the nature of that task. the rea- determination predicated process time for sonable of preparation the notice should be acquiring notice, the information which must be the included transporting notice,

of the the to the clerk of superior property the court in is located. Mfg. Corp.,

In American supra, approved days. we aof of 16 In the case sub judice, days elapsed from the time of action no- until simple tice thereof was In in- filed. view of the nature task public potential “[providing] purchasers and the volved interest constructive notice as would enable them deter- only lien, mine whether claim of which would exist for months underlying absent the of a suit to collect the indebtedness period, (Amafra Enterprises extant,” within that or was not still (1) (313 110)) Bldgs., v. All-Steel we hold as a matter of law that the notice of the instant action was not filed within a reasonable time.

In reaching holding, plaintiff’s our we contention that reject (3) (a) actions, such as applicable is not § case judice, directly against sub to enforce the lien (a) against the owner thereof to OCGA 44-14-361.1 § (4). by plaintiff None of the supports position cases cited and all of (a) explicitly applicable are (1) (8) specified paragraphs the liens of subsection OCGA 44-14-361. conclusion, in denying we hold that partially

and in The issues cross-appeal raised are moot due to our decision appeal. the main

Judgment reversed in Case No. 75161. Case No. 75162 dis- Sognier, J., J., missed. Beasley, concurs. specially. concurs Judge, concurring specially. Beasley, I concur in sued, the judgment because when the it did not lienor *3 file the statutory action,” notice “at the time of as ex- pressly (a) (3). clearly required by I would agree with the dissent American (320 857) (1984).

The legislature obviously did not mean the notice had to be filed at filed, the same instant as the claim was since the lienor would have to first clerk, ascertain the given number to the action as well as the date of if it was mailed rather than All hand-delivered. other information would be could be determined advance. Thus only elasticity might imported legislature’s into the time, mandate mailing provided would be legislature such as the has respect to action to be taken after service. OCGA 9-11-6 (e). legislature The recognizes that section of the Civil Practice legal mail, Act that filings accomplished by are often so it accommo- dates this common practice by three-day period a to be allowing specifically added to prescribed periods.

This case illustrates legislature setting wisdom of the a easily calculable, clear and objective provid- requirement, rather than ing subjective for a “reasonable time” standard which would invite litigation. import The court’s of “a reasonable time” into the statute carries with it the allowance and need for the trial court to exercise discretion, all the considering particular circumstances of a case. statutory uncertain, This renders the varying ap- lien law plications and, here, in judicial opinion: judge differences the trial under the circum- not unreasonable that two months was

reasoned disagrees a law.” stances, “as matter of and this court prompt purpose lien is assure materialman’s law improves payment real material which to furnishers 653 (1) (56 Gignilliat property. Co., v. Lumber West 841) (1949). up property, however. We tie real is meant to SE2d contribute compliance It not procedural litigable a issue of to the latter when we create every the notice of commencement instance where “at the lien is not filed the time enforce posthaste. promptly, delay, action,” It taken three was filed in has Here straightforward, years finality as to whether and-a-half to achieve enforceable, and but for bond common materialman’s lien is bought lien, it would which was to free the real period. subject passed long Over have to this encumbrance been delay pressed by year since of the notice has the defense judi- significant defenses, Ford’s amounts affirmative surely brought question. This cial been resources have to bear legislature, sets a was not the requirement when our constitution intention of inexpensive speedy, efficient, resolution “for the disputes VI, IX, .” Par. I. . . Ga. Const. Art. Sec. March Decided

Rehearing denied March Gregory Joy, George appellants. Smith,

S. A. Tye Ferguson,

John THE

75228. BOWMAN et al. v. STATE. Judge. Carley, jointly Madia tried Bowman and Michael Hirsh were charged knowingly “did, before a on accusations which *4 authority, upon premises and of Feminist remain receiving [FWHC], Women’s . . from Health Center . after properly representative ... a of said owner identified authorized premises depart premises. of said 7-21 from 16- said See OCGA (b) (3). appeal guilty Appellants returned verdicts. judgments the the and the sentences were entered conviction jury’s trial verdicts. general grounds. support enumerate the appellants urge only

enumeration, there a lack of sufficient premises “knowingly” so as evidence were of FWHC