Perfect Image, Inc. v. M & M Elec. Constructors, Inc., s. A89A0798
| Decision Date | 19 May 1989 |
| Docket Number | A89A0799,Nos. A89A0798,s. A89A0798 |
| Citation | 191 Ga.App. 605,382 S.E.2d 405 |
| Parties | PERFECT IMAGE, INC. v. M & M ELECTRICAL CONSTRUCTORS, INC. DIODATI v. PERFECT IMAGE, INC. |
| Court | Georgia Court of Appeals |
Johnson & Montgomery, Nisbet S. Kendrick III, Atlanta, for Perfect Image.
Charles H. Edwards, Atlanta, for M & M Elec.
Rogers, Magruder, Hoyt, Sumner & Brinson, James P. Orr, Rome, for Diodati.
M & M Electrical Constructors, Inc., (hereafter referred to as M & M) brought suit against Perfect Image, Inc., to collect an account indebtedness allegedly owed by Perfect Image for services rendered. Perfect Image denied liability but also filed a third-party complaint against Ray L. Diodati, d/b/a R & R Developers, seeking to hold him liable for any recovery which M & M might obtain in the main action. The case was tried before a jury, which returned a verdict in favor of M & M and against Perfect Image for the entire principal amount sought in the complaint, plus interest and attorney fees. On the third-party claim, the jury returned a verdict in favor of Perfect Image and against Diodati, but only to the extent of the principal and interest awarded to M & M. Perfect Image appeals from the judgment entered on the former portion of the jury's verdict, while Diodati appeals from the judgment entered on the latter portion.
Perfect Image had leased certain premises from Diodati on which to operate a commercial printing business. Diodati was required by the terms of the lease to make certain specified improvements to the premises to prepare them for occupancy by Perfect Image. The president of Perfect Image, Norman Friedman, was particularly concerned about certain specialized electrical work required for the operation of his printing equipment, and he consequently obtained Diodati's permission to "handle the electrical work and get the bids and supervise [this] work himself...." One of the electrical contractors from which Friedman solicited a bid was M & M, which specialized in performing electrical work for the printing industry and had evidently performed satisfactory work for Perfect Image in the past. M & M's bid was too high, however; and a company known as H & S Electrical Plumbing, Inc. (hereinafter referred to as H & S) was ultimately hired to do that portion of the electrical work which was the landlord's responsibility under the plans and specifications referenced by the lease. However, M & M was separately hired by Friedman to do certain additional electrical work which was necessary to get his company's printing equipment installed and working.
While electricians from both M & M and H & S were on the job site performing their respective tasks, Friedman encountered an electrical problem involving the wiring to a computer. He summoned an H & S employee to examine the wiring and was assured by that employee that the wiring was correct. Doubting that assessment, Friedman went to Diodati and requested his permission to have an M & M employee look into the problem. Diodati agreed, telling Friedman to "have them check it and fix it and send me the bill...." There was evidence that, during a subsequent discussion, Diodati told Friedman that if his electrician "found anything [else] wrong with my electrician's work to go ahead and correct it and I would pay him." In connection with these instructions, Diodati additionally told Friedman that he (Diodati) was withholding a $4,000 retainage against H & S which could be used to cover the expense of such corrective work.
In the ensuing weeks, M & M's electricians replaced or altered much of the wiring which had been installed by H & S. Friedman, who was present at the job site throughout this period, testified that M & M's supervisor approached him so frequently to discuss this work that he told him: Friedman stated that, notwithstanding this admonishment, the supervisor
After about three weeks of this, Friedman decided to talk to Diodati about the potential expense of M & M's corrective work because, in his words, he "had an uneasy feeling that maybe [Diodati] didn't realize how much work was being done." According to Friedman, Diodati responded by telling him not to worry because he was also withholding a retainage against H & S on another job H & S was doing for him.
M & M ultimately submitted an itemized invoice to Friedman for the repair and replacement work it had done on H & S's installations, and Friedman forwarded the bill to Diodati with a cover letter asking him to pay it. Diodati testified that he was surprised by the amount of the invoice and contacted M & M's president directly to tell him he thought it was too high....
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...the prevailing party, and every presumption and inference is in favor of sustaining the verdict." Perfect Image v. M & M Elec. Constructors, 191 Ga.App. 605, 607-608, 382 S.E.2d 405 (1989). Construed under this standard, there was evidence supporting the verdict that Donnell and Nora Lathon......
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