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MATERIALMAN'S LIEN - TRANSFER FROM DISTRICT TO CIRCUIT COURT: MCGEE D/B/A FMC MOBILE V. DILLARDS

McGee d/b/a FMC Mobile v. Dillards, [Ms. 2160581, Dec. 1, 2017] __ So. 3d __ (Ala. Civ. App. 2017). This decision by Presiding Judge Thompson (Moore, J., concurs; Donaldson, J., concurs in the result; and Thomas and Pittman, JJ., concur in the rationale in part and concur in the result) affirms a judgment of the Mobile Circuit Court releasing a materialman’s lien filed by McGee on the Dillards’ home. McGee asserted he was due payment from the Dillards for work allegedly completed on the home. Ms. *2. McGee filed a materialman’s lien in Mobile Probate Court four days after he allegedly completed the work. Ms. *7. The court noted that perfection of a mechanics or materialman’s lien requires “(1) provide statutory notice to the owner; (2) file a verified statement of lien in the probate office of the county where the improvement is located; and (3) file suit to enforce the lien.” Ms. *9-10, citing § 35-11-210, et seq., Ala. Code 1975.

After the Dillards filed suit against McGee in circuit court seeking a declaration releasing the lien, McGee filed an action in small claims court seeking a little less than $3,000 in damages from the Dillards. Ms. *10. However, McGee failed to file an action in circuit court to enforce the lien. The action McGee filed in district court did not seek enforcement of the lien and even if it had, the statute requires an action to enforce a lien be filed in circuit court where the amount in question exceeds $50. Ibid.

Finally, the court noted that even though the circuit court had purported to consolidate McGee’s district court action with the action filed by the Dillards to remove the lien, the circuit court’s order in that regard was a nullity because “Alabama law requires that ‘the circuit clerk or a judge of the court where the case was filed shall transfer the case to the docket of the appropriate court, ....’” Ms. *12, quoting § 12-11-9, Ala. Code 1975 (emphasis in original).

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