Hartline-Thomas, Inc. v. H. W. Ivey Const. Co., Inc.

• Decision Date: 27 January 1982
• Docket Number: No. 62713,HARTLINE-THOMA,INC,62713
• Parties: v. H. W. IVEY CONSTRUCTION COMPANY, INC.
• Court: Georgia Court of Appeals

Page 296

289 S.E.2d 296

161 Ga.App. 91

HARTLINE-THOMAS, INC. v. H. W. IVEY CONSTRUCTION COMPANY, INC.

No. 62713.

Court of Appeals of Georgia.

Jan. 27, 1982.

William A. Wehunt, Atlanta, for appellant.

Joe G. Davis, Jr., Frank L. Wilson, III, William T. McKenzie, Atlanta, for appellee.

POPE, Judge.

Appellant Hartline-Thomas, Inc., seeking recovery of $17,292.80, brought this contract action against appellee H. W. Ivey Construction Co., Inc. Appellee filed a motion for summary judgment on the basis of accord and satisfaction. Appellant brings this appeal from the trial court's grant of that motion.

Appellee was the general contractor for the construction of a garage facility for the City of East Point. Appellant and appellee entered into a subcontract under the terms of which appellant was to perform all painting and coating work required under the general contract "specified in but not limited to Section 9G of the Specifications." Following the completion of performance under the subcontract, a dispute arose concerning certain work which had been performed by appellant--appellee contending the work had been specified under the terms of the subcontract, and appellant contending that it had been extra work in addition to that required by the subcontract.

As is here pertinent Section 9G of the contract specifications provided that two (2) coats of "Sanders 'Permacrete' " were to be applied to exterior surfaces at a thickness of a given number of square feet per gallon. In addition to incorporating the above specifications the subcontract provided: "Sub-contractor shall make all alterations, furnish the material for all extra work, or omit any work Owner, Architect or Contractor may require, without nullifying this agreement, at a reasonable addition to, or reduction from, the sub-contract price, and pro rata to the same. No changes are to be made, however, except from written order from Contractor, and Contractor shall not be liable to Sub-contractor for any extra labor, materials, or equipment furnished without such written order." (Emphasis supplied.) The subcontract also provided: "This Sub-contract contains the entire agreement between the parties, and all additions thereto or changes therein shall be in writing and shall not be binding unless same are in writing." (Emphasis supplied.)

The evidence of record shows without dispute that appellant applied two coats of permacrete on the exterior surfaces of the project. Appellant contends that the application of the second coat was extra work performed pursuant to an oral agreement made between it and the project's architect. The oral agreement was apparently meant to alter the subcontract so as to provide for the application of only one coat of permacrete at a thickness of 10 mils. ¹ Test results taken after this application indicated a thickness of between 6 and 10.5 mils. Also subsequent to the first permacrete application, a different subcontractor was required to replace parts of the exterior surface because the material used did not meet contract specifications. Following this replacement of a portion of the exterior, appellant applied the second coat of permacrete. Appellant contended that the second coat was necessitated by the foregoing replacement of a portion of the exterior and was, in the light of its oral agreement, extra work for which it was entitled to compensation in addition to that provided in the subcontract. Appellee countered that, notwithstanding the replacement of a portion of the exterior, the second application of permacrete would have been required because the first coat did not meet the required thickness.

"... [P]leadings will be construed favorably toward the pleader when ruling upon a motion for summary judgment by a defendant against a plaintiff. Likewise, all inferences from the evidence introduced (if any) will be interpreted favorably toward making an issue of fact. [Cits.] The cardinal rule of the summary judgment procedure is that the court can neither resolve the facts nor reconcile the issues, but can only look to ascertain if there is [a genuine issue as to any material fact.]" Bagley v. Firestone Tire etc. Co., 104 Ga.App. 736, 739, 123 S.E.2d 179 (1961); Code Ann. § 81A-156(c). However, " '[w]hen a motion for summary judgment is made..., an adverse party may not rest ... (on) his pleading, but his response ... must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' " Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604, 203 S.E.2d 173 (1974); Code Ann. § 81A-156(e). Appellant contends that material questions of fact remain on the issue of its oral agreement to apply a second coat of exterior permacrete on the project.

Appellant asserts that because of its oral agreement with the architect, its application of the second coat of permacrete constituted a new contractual arrangement which was separate and distinct from the subcontract; however, this assertion is not supported by any facts of record. The undisputed facts in this case show that the subcontract specified the application of two (2) coats of permacrete on the exterior surfaces of the project. Indeed, appellant applied two coats of permacrete on the exterior surfaces of the project. The subcontract provided that a specification...