Blackmon v. Pena, A17A1500

• Decision Date: 07 March 2018
• Docket Number: A17A1500
• Citation: 812 S.E.2d 112
• Parties: BLACKMON et al. v. PENA.
• Court: Georgia Court of Appeals

345 Ga.App. 7

812 S.E.2d 112

BLACKMON et al.

v.PENA.

A17A1500

Court of Appeals of Georgia.

March 7, 2018

Walker L. Chandler, Zebulon, for Appellant.

C. Robert Melton, Forsyth, for Appellee.

Self, Judge.

In this contract dispute, restauranteur Irma Pena sued contractor Kirk Blackmon d/b/a Atlanta Concrete Creations and Kirk Blackmon, Inc. d/b/a Georgia Sunroom (collectively, "Blackmon") for damages related to work Blackmon performed during the construction of an exterior patio and sunroom addition at Pena’s restaurant. Following a bench trial, the Superior Court of Spalding County entered a final judgment in Pena’s favor for breach of contract and negligent construction, and Blackmon appeals. For the reasons that follow, we affirm.

Evidence adduced at trial revealed that Pena had planned for some time to add a patio and sunroom to the Mexican restaurant she and her husband owned in Forsyth. Pena’s niece located Blackmon during an Internet search, telephoned him, and Pena ultimately met with him at the restaurant. One to two weeks after meeting with him, Pena signed two contracts with Blackmon on May 9, 2013, for the construction of an exterior patio and a four-season sunroom.¹ The contract prices for the sunroom and the exterior patio were $53,997 and $13,000, respectively, and construction was to begin "in 4–5 weeks" from May 9, 2013, and be completed in "3–5 weeks" (sunroom) and "1–2 weeks" (exterior patio). Pena gave Blackmon a deposit of $28,000 when she signed the contracts for the project, but did not hear from him for six to seven weeks thereafter. In fact, Blackmon did not obtain a building permit until July 1, 2013—more than two weeks after construction was slated to begin and, in the case of the patio, after the patio should have been completed.

According to Pena, after viewing photographs of Blackmon’s work,² Blackmon told her that the sunroom addition "was going to blend in with the existing building ... [a]nd that’s what I expected." As a result, Pena believed that Blackmon would install a gabled roof on the sunroom, as depicted in his marketing materials, to match the roof of the original restaurant. However, when work on the project commenced, Pena reported being dissatisfied with Blackmon’s work. With regard to the patio, Pena cited Blackmon’s use of warped wood on the pergola and the lack of any support for concrete pavers on the patio resulting in uneven flooring and puddling.

Concerning the sunroom, Pena stated that Blackmon used residential doors, rather than commercial doors with a push bar, for the emergency exits, and complained that the painting was "bad," the ceiling was too low, the flooring was "really bad," and the exterior stucco did not match the stucco on the original building as promised. At one point, Pena asked Blackmon and his subcontractor, Hiram "Shane" Stone, to rebuild the patio; they declined. Despite these concerns, particularly with the installation of a flat roof rather than a gabled roof as she envisioned,³ Pena neither asked Blackmon to stop work on the roof nor provided any concerns in writing. In fact, Blackmon always told her that he had not finished and that "[i]t’s going to be gorgeous, it’s going to look beautiful, you need to wait."

On September 23, 2013, Pena sent Blackmon a letter instructing him to stop work on the project.⁴ At that point, some ten weeks after construction was due to be completed, Pena testified that neither the exterior patio nor the sunroom were functional for serving customers. Pena retained a new contractor, Bobby Ivey, who removed and replaced the pergola and completed work on the exterior patio and the sunroom. In doing so, Ivey removed the residential doors Blackmon installed and replaced them with emergency exit doors and replaced the stucco. Ivey also removed and replaced the flat roof of the sunroom with a gabled roof.⁵

For his part, Blackmon denied that Pena asked for a gabled roof. Instead, he claimed Pena asked about a gabled roof but balked at the price. Regarding the quality of the work, Blackmon testified that, while an inspector required that he make certain changes to the electrical system, it and all other facets of his work ultimately passed inspection. Blackmon’s subcontractor, Stone, testified that he began working on the project in July 2013.⁶ Blackmon gave Stone a scope of work, which included blueprints and drawings, and Stone used pre-engineered materials ordered specifically for the project. The pre-engineered materials are designed to be waterproof, and Stone never received any complaint concerning leaks at the project. No one complained to Stone concerning the kind of roof being installed or attempted to stop him from performing work.⁷ When he was eventually instructed to leave the project in September 2013, Stone estimated that his work was "98 percent" complete and further testified that the project was substantially complete, including completion of the roof, windows, doors, trim, stucco, electrical system, and HVAC system. In fact, Stone testified that the only work remaining to be done was cosmetic work to the concrete floor. While the roof he built was a flat roof, Stone observed that the roof on the adjacent original restaurant was a gabled roof.

Neither Blackmon nor Pena requested that the trial court enter findings of fact and conclusions of law in accordance with OCGA § 9–11–52 (a). As a result, at the conclusion of the bench trial on November 4, 2016, the trial court filed a handwritten final judgment in favor of Pena "against [Blackmon] for breach of contracts and negligent construction in the sum of $38,084.08 plus costs." Because it concluded no fraud had been shown, the trial court declined to award punitive damages.

On November 23, 2016, Blackmon filed a "Motion for More Definite Order" pursuant to OCGA § 9–11–52 (c) in which Blackmon asked the trial court to "amend and clarify" its judgment. But before the trial court ruled on Blackmon’s motion, Blackmon filed a notice of appeal on November 29, 2016. On December 1, 2016, the trial court purportedly vacated its November 4, 2016 judgment and, following a hearing, entered a new final judgment containing findings of fact and conclusions of law on December 12, 2016, nunc pro tunc to November 4, 2016.⁸ Blackmon did not appeal from the trial court’s December 12, 2016 order.

1. As a threshold matter, it is plain that the trial court’s November 4, 2016 judgment constitutes a "final judgment." OCGA § 5–6–34 (a) (1) ("Appeals may be taken to the ... Court of Appeals from the following judgments and rulings of the superior courts ...: [a]ll final judgments, that is to say, where the case is no longer pending in the court below...."). Moreover, "[t]he filing of a notice of appeal serves to supersede a judgment and while on appeal, the trial court is without authority to modify such judgment." Aetna Cas. & Surety Co. v. Bullington , 227 Ga. 485 (1), 181 S.E.2d 495 (1971) ; BJL Enterprises v. Level One Contact , 314 Ga. App. 42, 45 (1), 722 S.E.2d 877 (2012). As a result, the trial court’s December 1, 2016 order "attempting to vacate the prior [November 4, 2016] judgment, though rendered during the same term of court, was a nullity, even assuming that the prior judgment could be set aside without any meritorious reason being given therefor."⁹ Bullington , 227 Ga. at 485 (1), 181 S.E.2d 495. See also Level One , 314 Ga. App. at 45 (1), 722 S.E.2d 877. It necessarily follows that the trial court’s December 12, 2016 order is, likewise, a nullity. See Bullington , 227 Ga. at 485 (1), 181 S.E.2d 495.

However, these subsequent orders do not necessarily render Blackmon’s appeal from the November 4, 2016 final judgment moot, see, e.g., In the Interest of R.W. , 186 Ga. App. 885 (1), 368 S.E.2d 824 (1988) ; D.P. v. State , 129 Ga. App. 680, 681 (1), 200 S.E.2d 499 (1973), although the absence of written findings of fact and conclusions of law "is ground for affirmance when they are necessary for resolution of the issue on appeal." Beeks v. Consultech, Inc. , 222 Ga. App. 473, 474, 474 S.E.2d 675 (1996). Blackmon’s opening brief to this Court contains five enumerations of error. To the extent the record permits, we will address each in turn.

2. Enumerations 1, 2, and 4 challenge certain specific findings of fact and conclusions of law in the trial court’s December 12, 2016 order. In view of our discussion in Division 1, supra, these enumerations present nothing for our review.¹⁰ See Beeks , 222 Ga. App. at 474, 474 S.E.2d 675.

3. In his third enumeration, Blackmon contends that the trial court "ignored" Pena’s failure to provide a written objection to his work, as required by the parties’ contracts, and instead allowed Blackmon to continue working on a roof Pena did not want. Similarly, Blackmon’s fifth enumeration contends that he "is entitled to have this case decided by this [C]ourt de novo ." It appears that the substance of these arguments is that this case involved contract enforcement for which Blackmon should have prevailed, and that the enforcement of contracts is a question of law subject to de novo review on appeal.¹¹ However, Blackmon never presented to the trial court any argument concerning the need for construction of the parties’ contracts.¹² Rather, he argued that Pena received the roof required under the parties’ contract and that she simply "just changed her mind about what she wanted."

Nevertheless, the proper inquiry in this case is whether there was any evidence to support the trial court’s conclusion that Pena was entitled to recover for a breach of the parties’ contracts. See Infinite Energy v. Cottrell , 295 Ga. App. 306, 307, 671 S.E.2d 294 (2008) ("On appeal from a bench trial, we construe the evidence favorably to the trial court’s judgment and affirm if any evidence supports it.") (emphasis supplied); Dabdoub v. Global Home Image , 291 Ga. App. 298, 299, 661 S.E.2d 669 (2008). To that end,

[o]n appeal, this court must not substitute its judgment for

...