Hope Elec. Enters., Inc. v. Schindler Elevator Corp.
| Decision Date | 19 November 2013 |
| Docket Number | No. A13A1586.,A13A1586. |
| Citation | 752 S.E.2d 5,324 Ga.App. 859 |
| Parties | HOPE ELECTRIC ENTERPRISES, INC. v. SCHINDLER ELEVATOR CORPORATION |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Vaughn, Wright & Boyer, Frederick L. Wright II, for Appellant.
Schreeder, Wheeler & Flint, J. Carole Thompson Hord, Atlanta, for Appellee.
Plaintiff/appellant Hope Electric Enterprises, Inc. (“Hope Electric”) appeals from the trial court's order granting partial summary judgment to defendant/appellee Schindler Elevator Corporation (“Schindler”) on Hope Electric's claim of wrongful termination of the parties' contract. For the reasons set forth below, we now reverse.
The record shows that in October 2007, Schindler entered into a contract with the Metropolitan Atlanta Rapid Transit Authority (“MARTA”) to act as the general contractor on a project to rehabilitate escalators in MARTA stations throughout the Atlanta area (the “Prime Contract”). In June 2008, Schindler subcontracted with Hope Electric to perform certain electrical work for a portion of the project (“Subcontract”), and Hope Electric began working on the project later that year.
Hope Electric apparently worked on the project without any documented incidents until April 2010. On April 16, 2010, MARTA issued a Construction Safety Inspection Report citing Hope Electric for leaving an electrical closet door open on a train platform (“Violation 1”). According to the report of Violation 1, there were “no men [Hope personnel] at location” and the corrective action taken at that time included providing the “Station Manager” safety cones to protect the wires on the floor and barricades to protect the doorway. Further, the report indicated that verbal instructions were given not to leave the door open. And, according to a letter sent to Hope Electric on August 27, 2010, Schindler's safety officer at the site conducted a safety review following the violation.
A few weeks later, on April 28, 2010, MARTA cited Hope Electric for removing a breaker from a live breaker panel without any MARTA personnel present (“Violation 2”). According to the report of Violation 2, Hope Electric was reprimanded at a progress meeting for this violation.
On August 9, 2010, a MARTA train operator whose train was stopped in the Georgia State station observed Hope Electric principal, Willie Hope, Jr., and another Hope Electricemployee, James Reid, crossing “live” MARTA train tracks during normal operating hours (“Wayside Violation”). The report of the Wayside Violation also indicates that Willie Hope did not have proper MARTA identification on his person and that he became belligerent when questioned by MARTA police who came to the site. Willie Hope admitted in a meeting later that day with MARTA personnel and Mark Lester, Schindler's project manager, that his access to this live track area was unauthorized, but refused to acknowledge that he had committed a safety violation.
During the meeting, MARTA revoked Hope Electric's access to the project sites and Schindler directed Hope Electric to cease all further work on the project until MARTA concluded its investigation. On August 27, 2010, Schindler sent a letter to Hope Electric stating that Schindler had discovered that electrical components at the Georgia Dome station were falling off the wall, apparently because they were not properly anchored. The letter also stated that this violation had been discovered since the Wayside Violation and referenced the other violations. The letter further notified Hope Electric that “[t]hese repeated problems are unacceptable” and directed that it repair the Georgia Dome station problems. However, the letter also reiterated that Hope Electric could not perform any work on the project, including repairing the Georgia Dome station components, until MARTA completed its investigation and determined the “required corrective action” for the Wayside Violation.
On August 30, 2010, MARTA sent a letter to Lester directing Schindler to immediately remove Hope Electric from the project based on the “severity of [the] recent [Wayside] infraction, coupled with the previous incidents[.]” On September 10, 2010, Schindler provided Hope Electric a copy of the August 30 MARTA letter. On September 20, 2010, Schindler sent a letter notifying Hope Electric of the immediate termination of the Subcontract. The letter also stated that Schindler had “no choice” but to terminate the Subcontract based on MARTA's August 30 letter.
Hope Electric subsequently filed a complaint against Schindler, alleging Schindler breached the Subcontract by, among other things, wrongfully terminating the Subcontract. Schindler moved for partial summary judgment on this claim, and the trial court granted Schindler's motion. Hope Electric timely filed the present appeal challenging that order. We agree with Hope Electric that the trial court erred by granting summary judgment to Schindler on the wrongful termination claim.
1. We turn first to the provisions of the Prime Contract and Subcontract which are relevant to our analysis.1 The primary provision of the Subcontract at issue here is Section 7.2.1, which provides as follows:
“If the Subcontractor repeatedly fails or neglects to carry out the Work in accordance with the Subcontract Documents or otherwise to perform in accordance with this Subcontract and fails within a ten-day period after receipt of written notice to commence and continue correction of such default or neglect with diligence and promptness, the Contractor may, by written notice to the Subcontractor and without prejudice to any other remedy the Contractor may have, terminate the Subcontract and finish the Subcontractor's Work by whatever method the Contractor may deem expedient....”
And Hope Electric had a specific duty to perform its work safely under Section 4.3.1 of the Subcontract.2
Schindler argues that these provisions authorized the termination of the Subcontract based on the “overwhelming evidence of four safety violations in five months time,” including the “very serious Wayside Violation.” 3 On the other hand, Hope Electric argues that a jury must decide whether it “repeatedly fail[ed] or neglect[ed] to carry out the Work in accordance with the Subcontract[;]” whether it “fail[ed] within a ten-day period after receipt of written notice to commence and continue correction of such default or neglect with diligence and promptness[;]” and whether its denial of access to the project site prevented it from taking any action to address the alleged deficiencies in its work. We agree with Hope Electric that a jury must decide these issues.
We start with the pivotal issue, which is whether Hope Electric “repeatedly” failed or neglected to carry out the work or perform in accordance with the Subcontract. “Repeatedly” is not defined or otherwise limited in the Subcontract, and there is nothing to indicate the parties did not intend for it to be given its “usual and common signification.” OCGA § 13–2–2(2). And in such cases, we often find it useful to turn to a dictionary to supply the plain and ordinary meaning of a word. Harkins v. CA 14th Investors, 247 Ga.App. 549, 550, 544 S.E.2d 744 (2001).
According to the American Heritage Dictionary, http:// ahdictionary. com/ word/ search, “repeatedly” is an adverb meaning “said, done, or occurring again and again.” However, this definition does not aid us much, as even a word of common understanding and usage may be ambiguous depending on the context in which it is used. See Archer Western Contractors, Ltd. v. Estate of Pitts, 292 Ga. 219, 225–226(2), 735 S.E.2d 772 (2012). An ambiguity results when there is “duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and it also signifies being open to various interpretations.” (Citation and punctuation omitted.) McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga.App. 595, 602(2)(b), 660 S.E.2d 397 (2008). E.g., Freund v. Warren, 320 Ga.App. 765, 769, n. 4, 740 S.E.2d 727 (2013).
As used in the Subcontract, we believe that the term “repeatedly” is such an indistinct and uncertain term. The Subcontract provides no reference point to determine what constitutes a “repeated”...
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