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Lien, etc. Fulton Superior Court. Before Judge Pye.
1. Under the provisions of the Civil Practice Act (Code Ann. 81A-156 (h)) the grant of a summary judgment on one count of a three-count petition is appealable, though the remaining counts are still pending in the trial court.
Ted Levy, an architect, brought suit in three counts against G. E. C. Corporation as owner of an estate for years in certain realty, A. T. Ehlers as president of G. E. C. Corporation, L. B. Branan, Jr. as the contractor who made improvements on the realty, and Dorothy M. and R. H. Cording, as owners of the reversion or remainder in the realty, alleging in Count 1 that prior to May 4, 1967, the Cordings had owned the realty, but on that date conveyed to G. E. C. Corporation an estate for 99 years in it, and that the Cordings, Ehlers and Branan had, prior to May 4, 1967, entered into an agreement whereby Branan and Ehlers were to work up a proposal for the improvement of the property, which, if satisfactory to the Cordings, would result in the conveyance by them to G. E. C. of the estate for years. Branan would then construct the project as contractor, and from its completion it would pay to the Cordings an annual percentage rental as the consideration for the conveyance to it of the estate for years.
It is also alleged that in the late spring or early summer of 1966, and in accordance with the arrangement, Ehlers and Branan employed Levy as architect to work up the plans, specifications, etc., for developing and improving the property. Upon his recommendation they determined to construct 118 units of Garden Apartments. Schematic design studies, design development documents and working drawings and specifications, consisting of plans, elevations and specifications illustrating the size and character of the project, the kinds of materials to be used, types of structures to be constructed, mechanical and electrical systems to be used, etc., and the necessary bidding information were prepared and delivered to Ehlers and Branan so that these might be used in making necessary financial arrangements, and they were so used, as well as for obtaining building permits and in developing the property. However, plaintiff alleges that after delivery of the plans to Ehlers, Branan and G. E. C. Corporation, they caused the plans to be copied by a draftsman employed by Branan, and that Levy's name was removed therefrom and another engineer's name substituted in its place, with some minor and inconsequential changes in the plans.
Levy was not asked for anything further, and did nothing more in the furnishing of plans, etc., or services, but in early June 1967, he learned that the defendants had started construction of the apartment project, using the plans and specifications which he had supplied, and on June 14, 1967, he filed his claim for lien in the amount of $48,600. It was recorded on the same day. On October 16, 1967, he filed this suit seeking in Count 1 the foreclosure of the lien.
In Count 2 he alleged that the defendants Ehlers, Branan and G. E. C. Corporation had converted to their own use the drawings, plans, specifications and sketches which plaintiff had prepared for use in improving the property and that these were of the value of $49,000, and judgment was asked against these defendants in that amount.
In Count 3 he alleged that the defendants Ehlers, Branan and G. E. C. Corporation had wrongfully appropriated the plans, drawings, specifications, etc., without plaintiff's permission, consent and without compensating him, and that while in their possession they had copied them, thereby infringing upon plaintiff's common law copyright and interest in them, all to his damage of $49,000, and sought judgment against these defendants for that sum.
Plaintiff thereafter voluntarily dismissed as to the Cordings, leaving all three counts against Ehlers, Branan and G. E. C. Corporation.
Defendants moved for summary judgment as to Count 1 and presented, inter alia, the deposition of Mr. Levy in which he testified he had delivered the plans, drawings, specifications, etc., to the defendants "some time in the fall of 1966." There was testimony in his deposition that the drawings, plans, etc., supplied were preliminary in nature. Defendants in their answer and cross claim alleged that the sum total of these delivered by Levy were "one pamphlet of preliminary specifications of a general nature, four drawings described as (1) large scale wall sections, (2) floor plan, (3) elevation, and (1) --------, marked 'Preliminary Details to be used as a Guide,' all dated October 1, 1966, together with an old drawing prepared by V. F. Gaddy and R. L. Cordes for Capital Properties, Inc. dated January 13, 1966, which was an old site map of the Cordings property," for which Levy was paid $509.
There had been no express agreement as to his compensation, and Levy had proceeded upon the idea that the charge would be as for "standard architect's fees." He asserted that payment for his work was not due until the defendants decided to go ahead with the work or to abandon the project.
The trial court sustained the motion for summary judgment, holding that the plans, drawings, etc., supplied, having been altogether of a preliminary nature, were not such as were contemplated under the provisions of Code Ann. 67-2001, 67-2002, and that in any event the claim for lien had not been filed within the time provided in the statute, nor had the suit to foreclose been filed within the provided time.
From that judgment plaintiff appeals.
1. Appellees assert that since there has been no disposition of Counts 2 and 3 of the petition and these are still pending in the trial court, the appeal must be dismissed because of the lack of a final judgment.
Were it not for the provisions of Code Ann. 81A-156 (h), providing for an appeal from the grant of a summary judgment on any issue, or as to any party, we should agree. In this connection see McLeod v. Westmoreland, 117 Ga. App. 659.
We do not favor partial or piecemeal appeals of cases. It has long been the policy of our law that this was not to be permitted. However, it is within the province of the General Assembly to make or change public policy, and when it has done so, we have no option but to follow.
The motion to dismiss is denied.
2. Pretermitting the matter of whether the plans, drawings, sketches, specifications, etc., being preliminary in nature, are such as are contemplated by Code Ann. 67-2061, 67-2002, for which an architect may claim or assert a lien, we move to the matter of whether the claim was filed within the time required.
Under Mr. Levy's own testimony, as well as his pleadings, he supplied the plans, etc., in the fall of 1966. Fall ends and winter begins at the close of the third week of each December. Consequently, the latest that the plans could have been furnished was December 22, 1966. The claim for lien was not filed until June 14, 1967, which is more than three months from the last possible date of furnishing.
It is urged that since the defendants did not begin construction on their improvement, and thus did not begin use of the plans for that purpose until about the first of May 1967, the filing of the claim was in ample time. We cannot agree. Neither the beginning nor the ending of construction controls the time when the claim of lien for furnishing plans for the improvement of the real estate must be filed. While we find no decision as to when this must be done by an architect, we perceive no difference in the requirement as to him and that as to one who has furnished materials for improving the land.
As to the latter it is settled that the claim of lien must be filed "within three months from the date on which he completed delivery of the materials furnished." Jones v. Kern, 101 Ga. 309 (28 SE 850); Calhoun Brick Co. v. Pattillo Lumber Co., 10 Ga. App. 181 (73 SE 23); Pippin v. Owens, 29 Ga. App. 789 (2) (116 SE 549); Crane Co. v. Hirsch, 61 Ga. App. 632 (7 SE2d 83); Hill v. Dealers Supply Co., 103 Ga. App. 846 (120 SE2d 879).
Since the claim for lien was not timely filed, we do not reach the question of whether suit was timely instituted for force losing the lien.
The grant of the summary judgment was proper.
Judgment affirmed. Felton, C. J., and Whitman, J., concur.
Joseph S. Crespi, C. W. Milam, for appellees.
Heyman & Sizemore, Wm. H. Major, Maurice N. Maloof, for appellant.
Friday May 22 18:40 EDT

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