concurring specially.
While I concur with the result reached, and all that is said in Division 2,1 do not agree with all that is said in Division 1, because I believe the opinion leaves the implication that whether or not the last work performed was “substantial” is a factor to consider in whether or not the work is “complete.”
OCGA § 44-14-361.1 (a) (1) & (2) provide that, in order for a subcontractor such as MCR to enforce a lien against the owner’s property, (1) there must be a “substantial compliance by the party claiming the lien with his contract for building, repairing, or improving; . . . .” and (2) the claim of lien must be filed of record “within three months after the completion of the work. . . .”
In Yates Paving &c. Co. v. Waters, 181 Ga. App. 537 (352 SE2d 791) (1987), this court considered the situation where four dates were put forward by the parties as the completion date, two of which made the lien filing beyond three months, one of which made it timely, and the last of which made the filing premature. We held that “[e]ven assuming the date alleged by appellant . . . was correct, the lienl *177would still be invalid, having been filed before the work was completed rather than within three months after the completion of the work, as required by OCGA § [44-14-361.1].” (Emphasis in original.) Id. at 539. While technically dicta because resolution of the issue before this court hinged upon conflicting testimony of the lien claimant/movant for summary judgment, Division 1 accepts the conclusion that “premature filing” does not satisfy the statute. Our disagreement is not here, but with the issue of whether the quantity of the last work performed is or can be determinative of “completion.”
Although MCR’s subcontract required it to supply concrete for the project, it was not a “materialman” as that term is used in the lien statute. As acknowledged in Division 1 of the opinion, MCR was a “subcontractor” who provided labor as well as materials for the work and was assigned portions of the work covered by the prime contractor’s agreement with the owner for completion, i.e., laying out the building, digging the footings, placing the forms for the concrete, pouring the concrete, finishing the concrete, assembling the pre-fab components of the motel, pouring and finishing the second floor slab, etc. Therefore, I do not believe the discussion in Division 1, regarding the “last furnishing of material” as in any way affecting the issue of the completion of the work under the subcontract is helpful.
In making the determination of timeliness of the filing of the claim, the relative amount of work last completed is not the issue, but whether, in the case of a subcontract such as present here, the work done last was part of the work encompassed by that subcontract. In Sears, Roebuck & Co. v. Superior Rigging &c. Co., 120 Ga. App. 412 (170 SE2d 721) (1969), Sears had contracted with American Incinerator to build an incinerator. American then subcontracted with Superior for actual erection which involved providing both labor and equipment. The claim of lien by Superior was filed on October 17, 1967, which Sears contended was too late. Superior billed for its work on a time basis and there was evidence that the last day for which time charges were made was July 14.
In differentiating materialmen’s claims, for which the last deliv-Iery of materials to the contractor or subcontractor is the determinate, we stated that “Superior was more than a mere supplier. The evidence . . . shows that Superior was engaged to do a certain specified job or work, to wit, to erect an incinerator. . . .” The question involved . . . is at what point in time did completion of Superior’s work bccur? That Superior made no charge for manhours after July 14, 1967, is some evidence that the work was completed on that date. But there is some evidence to the contrary. The affidavit of H. M. Jorgen-sen states . . . that he personally did welding on July 20, 1967, necessary to complete the job; and that on July 24, 1967, he inspected the |ob, cleaned up debris and made final adjustments.” The matter of *178when the job was complete was, under these facts, left for the jury’s determination.
Decided March 15, 1991. R. Michael Key, for appellants. Duncan, Thomasson, & Aeree, Marc E. Aeree, for appellee.While the issue of whether the quality of the work, referred to in OCGA § 44-14-361.1 (a) (1), meets the requirement of the contract is judged by “substantial compliance,” the issue of whether the pouring of the concrete on the stairwell here was included in the subcontract work which MCR was to perform does not depend on what percentage of the overall job that task equated.
I agree that the denial of the directed verdict to Troup was correct because the issue of “completion” of the work required by MCR’s subcontract was properly for the jury.
I am authorized to state that Judge Pope joins in this special concurrence.