MOORE PLUMBING v. Tri-South Contractors, A02A0406.

• Citation: 567 S.E.2d 697,256 Ga. App. 58
• Decision Date: 07 June 2002
• Docket Number: No. A02A0406.,A02A0406.
• Court: United States Court of Appeals (Georgia)
• Parties: MOORE & MOORE PLUMBING, INC. v. TRI-SOUTH CONTRACTORS, INC.

567 S.E.2d 697

256 Ga. App. 58

MOORE & MOORE PLUMBING, INC. v. TRI-SOUTH CONTRACTORS, INC.

No. A02A0406.

Court of Appeals of Georgia.

June 7, 2002.

Reconsideration Denied June 21, 2002.

Wood & Perry, Jere F. Wood, Roswell, for appellant.

Webb, Tanner & Powell, Robert J. Wilson, Lawrenceville, for appellee.

MILLER, Judge.

Moore & Moore Plumbing, Inc. appeals from the trial court's order compelling arbitration pursuant to a contract between Moore and Tri-South Contractors, Inc. On appeal Moore contends that the trial court erred by (1) ordering the parties to comply with the arbitration clause in the contract and (2) dismissing the case without prejudice after ordering the parties to submit to arbitration. We discern no error and affirm.

The record reveals that Tri-South, a general contractor, entered a subcontract agreement with Moore for the construction of several apartments. Under the agreement, Moore was responsible for, among other things, providing "all labor and materials necessary to install [a] complete plumbing system for 208 apartment units, clubhouse, trash compactor, and maintenance facility/car wash." The agreement also provided several options to Tri-South in the event that it was not satisfied with Moore's work:

If in the opinion of the Contractor, the Subcontractor neglects or fails to supply a sufficient number of workmen of the proper skill, or materials of the proper quality, or fails in any respect to prosecute the work required by this Agreement with promptness and diligence, or the work of the Subcontractor is not executed in accordance with plans and specifications, or is such as to interfere with or delay the work of the Contractor or other Subcontractors, and Subcontractor fails to remedy ... such conditions within 24 hours after the posting of a written notice by registered mail or dispatch of telegram (any such notice to be effective as [sic] the time of posting or delivery to the telegraph company) directed to [the Subcontractor's address] specifying such of the foregoing as is applicable, the Subcontractor authorizes the Contractor as follows: (a) To use any of Subcontractor's equipment and to consume any materials on the job until it is completed. (b) To complete the job, and procure such equipment, labor and material as is necessary therefore [sic], and Subcontractor agrees to pay the cost of same plus 15% of such cost to compensate General Contractor for overhead and profit. (c) To withhold any monies which may be due Subcontractor for work or labor in connection with this job or any other job for which Subcontractor may be furnishing labor and material, and at Contractor's election such monies shall be forfeited as liquidated damages for such default. (d) To contract with others for the completion, either in whole or in part of such work as [sic] Subcontractor's cost and expense.

(Bold in original.)

There was also an arbitration provision in the contract:

In the event that the parties are unable to settle any dispute, relating to their rights under this Contract, which is not otherwise provided for herein, the Contractor and the Subcontractor shall each appoint one arbitrator and those arbitrators shall elect a third arbitrator, and the decision of such arbitrators as to any matter in dispute shall be final and conclusive upon the rights of both parties.... The cost of any such arbitration shall be borne equally between the parties.

After being paid on its first two draw requests, Moore submitted a third draw request for over $30,000 for plumbing work that Moore had done up to June 25, 2000. This request was initially approved by Tri-South, but before Tri-South paid Moore it sent, via certified mail, a letter to Moore dated June 29, 2000. In the letter, Tri-South informed Moore that Moore was behind schedule in completing its work and that Tri-South was giving Moore the requisite 24 hours notice pursuant to the contract to remedy the deficiencies. The letter outlined the options available to Tri-South if Moore did not remedy the conditions within 24 hours, including its option to take over the job and "withhold any monies which may be due Subcontractor for work or labor in connection with this job or any other job for which Subcontractor may be furnishing labor and material...."

In a second letter dated July 6, 2000, Tri-South informed Moore that Moore was still behind schedule on its work on the same building that was unfinished as of Tri-South's June 29 letter to Moore. When Moore's third draw request became due on July 15, Tri-South did not pay it. Tri-South then fired Moore from the job on July 25 and went on to complete the work through another subcontractor. Moore claims to have rescinded the contract at that time.

After Moore sent a letter to Tri-South requesting...