Pascoe Steel Corp. v. Turner County Bd. of Ed., 53428

• Decision Date: 05 April 1977
• Docket Number: No. 53428,No. 3,53428,3
• Citation: 142 Ga.App. 88,235 S.E.2d 554
• Parties: PASCOE STEEL CORPORATION v. TURNER COUNTY BOARD OF EDUCATION
• Court: Georgia Court of Appeals

Page 554

235 S.E.2d 554

142 Ga.App. 88

PASCOE STEEL CORPORATION v. TURNER COUNTY BOARD OF EDUCATION.

No. 53428.

Court of Appeals of Georgia, Division No. 3.

April 5, 1977.

Rehearing Denied April 22, 1977.

Waldrep & Williams, Ronald M. Mack, Columbus, for appellant.

Reinhardt, Whitley & Sims, Bob Reinhardt, Ralph F. Simpson, Tifton, Hugh D. Wilson, Ashburn, for appellee.

MARSHALL, Judge.

Appellant, Pascoe Steel Corporation, plaintiff below, brings this appeal from the grant of a directed verdict in favor of the Turner County Board of Education at the conclusion of Pascoe's evidence. Prior to presentation of evidence on the merits, Pascoe moved for grant of summary judgment and upon denial of that motion presented evidence before a duly empaneled jury. At the conclusion of its evidence, Pascoe moved for a directed verdict, which was denied. The board of education then moved for a directed verdict, which was granted. By its evidence, Pascoe showed that it had sold a prefabricated steel building to one Strickland, a general contractor, for delivery to the grounds of the board of education for construction of a building purchased by the school board. Pascoe further showed that it had fully performed its agreement with Strickland, but had never been paid by Strickland for the building material. Demand upon the school board had likewise proved fruitless. The superintendent of schools admitted that the board had contracted with Strickland for the building; that the building had been constructed; that the board did not obtain the performance bond required by Code §§ 23-1705 and 1706; that the board had paid the contractor, Strickland, but had never dealt with nor paid the supplier, Pascoe Steel. Appellant enumerates as error the denial of its motions for summary judgment and for a directed verdict, and the grant of the directed verdict in favor of the school board. Held :

1. In the first enumeration of error, Pascoe Steel complains that the trial judge erred in denying its motion for summary judgment. There is no provision for review of the denial of a summary judgment in Code Ann. §§ 81A-156(h) or 6-701(a) 2(A), except by direct appeal with a certificate of the trial judge and an application for review to the appropriate appellate court. See Ga.L.1975, p. 757. In the absence of the proper procedures for appeal of the denial of summary judgment, we cannot consider the first enumeration of error. Marietta Yamaha, Inc. v. Thomas, 237 Ga. 840, 842(2), 229 S.E.2d 753 (1976). Furthermore, after verdict and judgment, it is too late to review a judgment denying summary judgment. Mullinax v. Singleton, 139 Ga.App. 704, 705, 229 S.E.2d 518 (1976); Hiller v. Culbreth, 139 Ga.App. 351, 228 S.E.2d 374 (1976).

2. In its second enumeration, Pascoe complains of the denial of its motion for directed verdict after it had rested upon completion of its evidence. This contention likewise is without merit. At the close of the plaintiff's evidence, only the defendant can move for a directed verdict. CPA 50(a); Code Ann. § 81A-150(a); Anderson v. Universal CIT Credit Corp., 134 Ga.App. 931, 216 S.E.2d 719 (1975); Allied Van Lines v. Hanson, 131 Ga.App. 506, 206 S.E.2d 108 (1974); Inabinet v. State Farm Mut. Auto. Ins. Co., 124 Ga.App. 514, 184 S.E.2d 514 (1971); Kay Enterprises v. Shawmac,124 Ga.App. 225, 183 S.E.2d 503 (1971). At best, Pascoe's motion for directed verdict was premature because the opposing party had not yet presented any evidence.

3. In its third enumeration of error, Pascoe Steel asserts that the trial judge improperly granted the motion for a directed verdict in favor of the board of education.

As material to this controversy, Code § 23-1705 provides in pertinent part that no contract with a public board for the doing of any public work shall be valid for any purpose unless the contractor shall give a payment bond payable to the public board for the use and protection of persons supplying materials in prosecution of the public work. Ga.L.1910, p. 86; 1916, pp. 94, 95; 1956, p. 340; 1975, pp. 810, 811. Code § 23-1706, in pertinent part, provides that if the performance bond is...