Grubb v. Woodglenn Properties, Inc.

• Decision Date: 12 March 1996
• Docket Number: No. A95A2714,A95A2714
• Citation: 470 S.E.2d 455,220 Ga.App. 902
• Parties: GRUBB v. WOODGLENN PROPERTIES, INC.
• Court: Georgia Court of Appeals

Page 455

470 S.E.2d 455

220 Ga.App. 902

GRUBB v. WOODGLENN PROPERTIES, INC.

No. A95A2714.

Court of Appeals of Georgia.

March 12, 1996.

Reconsideration Denied March 28, 1996.

Certiorari Denied June 24, 1996.

Phillips & Reid, Gregory K. Morgan, Christopher H. Dunagan, Atlanta, for appellant.

Wright & King, Judy C. King, Duluth, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

Timothy A. Grubb appeals a final judgment in favor of the builder, Woodglenn Properties, Inc. ("Woodglenn"), for breach of contract for the construction of his house. Woodglenn sued Grubb under the contract to enforce a claim for final payment and payment for certain extras which Grubb had requested. The trial court entered judgment on the jury's verdict and awarded Woodglenn judgment in rem and a special lien.

At the outset we note that two different contracts controlled the parties' relationship. The new construction purchase and sale agreement ("construction agreement") was a contract between Grubb and Woodglenn and had a rider whose terms are the focus of the underlying litigation. The single closing construction loan agreement ("loan agreement") between the Grubbs, Woodglenn and Norwest Mortgage, Inc. ("Norwest") contained conditions at variance from the terms of the rider.

Under the terms of the construction agreement, Grubb agreed to pay $549,300 to Woodglenn for the construction of his residence. The contract provided that after construction began, Grubb could request modifications which Woodglenn would honor as long as Grubb paid all the additional costs for materials and labor. As construction progressed, Grubb made numerous requests for "extras." Grubb financed construction by obtaining a permanent loan from Norwest who, during construction, made periodic payments on behalf of Grubb to Woodglenn. Payments were controlled by the loan agreement with Norwest. To obtain a draw, Woodglenn would notify Norwest that it was requesting a draw, Norwest then would dispatch an inspector to assign a percentage completion and then Norwest would wire transfer funds to a designated account.

In November 1993, as construction was nearly completed, Grubb took possession of the house and denied Woodglenn permission to enter the premises. At this point, Woodglenn had substantially completed its contractual obligations under the construction agreement but was not able to finish several punchlist items due to Grubb's lock-out. Woodglenn requested final payment from Norwest and faxed a document to Norwest on November 19, 1993, to induce the release of the final draw. Norwest refused to release the final draw because Grubb specifically instructed it not to do so.

To obtain the final payment according to the rider to the construction agreement, Woodglenn had to satisfy four conditions precedent, only two of which are at issue here: "(iii) the forwarding by Builder to Purchaser of all warranties and guaranties provided by the Builder, subcontractors and material providers employed in the performance of the Work (as applicable), and (iv) a fully executed General Contractor's Affidavit and Final Lien Waiver from Builder." To obtain final payment according to the terms of the loan agreement, Woodglenn had to furnish completed waivers of liens and a certificate that lien waivers were executed by all parties furnishing labor and materials.

After several unsuccessful efforts to collect payment, Woodglenn filed a lien and then filed suit. Held:

1. We disagree with Grubb's contention that the trial court erroneously denied his motion for directed verdict and motion for judgment notwithstanding the verdict because Woodglenn failed to present evidence that it satisfied two of the four requirements of the above rider. Specifically, Grubb claims that there was no evidence: 1) that Woodglenn fully executed a general contractor's affidavit and final lien waiver and 2) that Woodglenn forwarded Grubb the warranty documents required by the contract.

"A directed verdict is proper only '(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict(.)' OCGA § 9-11-50(a)." Vickery Ins. Agency v. Chambers, 215 Ga.App. 48, 50, 449 S.E.2d 885 (1994). "In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the 'any evidence' test. [Cit.]" Southern R. Co. v. Lawson, 256 Ga. 798, 799(1)(a), 353 S.E.2d 491 (1987). The standard for granting j.n.o.v. is the same as for directed verdict. Russell v. State, 155 Ga.App. 555, 556(2), 271 S.E.2d 689 (1980).

Applying the above standard, in our view the evidence did not demand a verdict or judgment in favor of Grubb on the affidavit or warranty documents issues.

(a) Affidavit. Grubb seeks to capitalize on apparent inconsistencies between the loan agreement and construction agreement's requirements for final payment. He claims that because Woodglenn failed to provide a fully executed affidavit and final lien waiver, he was entitled to a directed verdict or...