Progressive Elec. Servs., Inc. v. Task Force Constr., Inc.
| Decision Date | 18 June 2014 |
| Docket Number | No. A14A0355.,A14A0355. |
| Citation | 760 S.E.2d 621,327 Ga.App. 608 |
| Court | Georgia Court of Appeals |
| Parties | PROGRESSIVE ELECTRICAL SERVICES, INC. et al. v. TASK FORCE CONSTRUCTION, INC. |
OPINION TEXT STARTS HERE
Scott Eric Anderson, John Flanders Kennedy, for Appellant.
William Albert White, McDonough, for Appellee.
Progressive Electrical Services, Inc. (“Progressive”) and Timmy L. Bush appeal the trial court's grant of summary judgment and award of attorney fees in an action filed against them by Task Force Construction, Inc. (“TFC”) asserting claims of breach of contract and indemnification. For the reasons set forth below, we affirm the grant of summary judgment.
We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Miller v. City Views at Rosa Burney Park GP, LLC, 323 Ga.App. 590, 591, 746 S.E.2d 710 (2013). Viewed in that light, the record shows that on or about April 29, 2009, Bush executed a “Subcontract Agreement” with TFC (the “Agreement”) on behalf of Progressive. Under the Agreement, Progressive was to provide labor, tools, equipment and insurance necessary to furnish and install an electrical package for the project known as the Sudie A. Fulford Community Learning Center in Swainsboro, Georgia (the “Project”).
Although Bush ostensibly signed the Agreement in his representative capacity as the president of Progressive, the Agreement contained the following provision designed to bind him in his individual capacity to its terms (the “Signature Provision”):
Signing Individual. Each and every individual who signs this [Agreement] or any Attachment or exhibit thereto on behalf of [Progressive] hereby warrants and agrees that such individual is duly authorized 1) to act on behalf of [Progressive]; 2) to enter this [Agreement] on behalf of [Progressive]; and 3) to bind [Progressive] to the terms of [the Agreement]. Each and every individual signing on behalf of [Progressive] also further agrees that, notwithstanding anything contained herein or on any signature line to the contrary, each such individual signing on behalf of [Progressive], in addition to signing in a representative capacity, is also signing [the Agreement] in his or her personal and individual capacity and each such individual signing on behalf of [Progressive], by signing below, hereby individually and personally agrees to be bound by all of the obligations of [Progressive] in [the Agreement] (including, but not limited to, the Attachments hereto).
(Emphasis supplied.)
The Agreement provided that Progressive was to be paid $275,000 for completion of its services, subject to any valid written change orders. Under the Agreement, TFC could make changes to the work to be performed and the materials to be furnished through a written change order signed by both parties, but no changes were valid “except upon written Change Order from [TFC] and signed by authorized representatives of [TFC and Progressive].” The Agreement further expressly provided that
[TFC] shall not be liable to [Progressive] for any additional cost of management, supervision, labor, materials, supplies, equipment, tools, machinery, plant, services, engineering and testing without such written Change Order. No officer, employee or agent of [TFC] is authorized to direct any changed or extra work by oral order. Only written approval from [TFC's] President, Larry Sailors, or such Project Manager as [TFC] may specifically designate in writing as having authority to make change orders, can authorize changes.
Additionally, Progressive agreed to pay promptly any costs for material or labor furnished by third parties on the Project. In connection with its work on the electrical package, Progressive entered into a separate contract with Hagemeyer North America, Inc. (“Hagemeyer”) for the purchase of materials, and Hagemeyer supplied materials to Progressive under that contract. For reasons that are unclear, TFC ultimately paid Progressive only $245,250 in connection with the Project, and Progressive failed to pay Hagemeyer approximately $120,200 due and owing for materials supplied. Hagemeyer brought suit to recover the amounts owing under its contract with Progressive, naming Progressive, TFC, and Great American Insurance Company (“GAIC”), the surety on the Project's payment bond (the “Payment Bond”), as defendants. GAIC ultimately settled the suit with Hagemeyer for $116,000, and TFC, as principal on the Payment Bond, reimbursed GAIC in the amount of $118,463.69 (the “Payment”), which included reimbursement of GAIC's attorney fees and costs.
Under the Agreement, Progressive agreed to indemnify TFC
from all claims, losses, fines, penalties, assessments and damages (including by not limited to reasonable attorney's fees) arising out of[, inter alia, Progressive's] breach of any term [of the Agreement], including costs, investigation expenses, expert expenses and attorney's fees incurred by [TFC] in the investigation and defense of such claims or allegations. TFC relies upon this provision in seeking to recover the amount it paid to GAIC, less any amounts TFC owes to Progressive under the Agreement, as amended by any valid change orders. The trial court granted TFC's subsequent motion for summary judgment against Progressive and Bush, jointly and severally.
1. Progressive and Bush assert that the trial court erred in awarding damages jointly and severally against Bush because he did not sign the Agreement in his individual capacity. Bush signed the Agreement on the signature line for the Subcontractor, as follows:
Title: Pres.
None of the parties disputes that this signature was sufficient to bind Progressive to the terms of the Agreement, but Progressive and Bush dispute that Bush has any individual obligation under the contract. Moreover, they assert that because Bush's name as an alleged guarantor is not included in the Agreement and the signature block does not indicate that he was signing as an individual guarantor, the Signature Provision, which they contend is an attempt at creating a guaranty, violates the Statute of Frauds.
(a) Progressive and Bush are correct that a single signature in a representative capacity generally does not bind the signing party individually. In Georgia, “an agent who, acting within the scope of his authority, enters into contractual relations for a disclosed principal does not bind himself, in the absence of an express agreement to do so.” (Citation and punctuation omitted; emphasis supplied.) Primary Investments, LLC v. Wee Tender Care III, Inc., 323 Ga.App. 196, 198(1), 746 S.E.2d 823 (2013). But the Signature Provision here contains such an express agreement to bind Bush individually, providing that by signing on behalf of Progressive, Bush also “individually and personally [agreed] to be bound by all of the obligations of [Progressive]” under the parties' contract, “notwithstanding anything contained [in the Agreement] or any signature line to the contrary.” Accordingly, we find that under the unambiguous language of the Signature Provision, Bush's single signature bound him in his individual capacity, along with Progressive, under the Agreement. See Gigandet v. Lighting Galleries, Inc., 191 Ga.App. 536, 536–537, 382 S.E.2d 600 (1989) (physical precedent only).1
And although Bush and Progressive argue that such a provision creates a trap allowing for “unbridled liability to be unleashed on unsuspecting victims,” this argument ignores the well-settled legal principle that a party
has the duty to read a contract before signing it and by signing, the party is bound by its terms “unless [he] can show that an emergency existed at the time of signing that would excuse [his] failure to read it, or that the opposite party misled [him] by an artifice or device which prevented [him] from reading it, or that a fiduciary or confidential relationship existed between the parties upon which [he] relied in not reading the contract.
(Citation omitted.) Buckner v. Buckner, 294 Ga. 705, 708(1), 755 S.E.2d 722 (2014). Bush has presented no evidence of any emergency, fraud, or confidential relationship to justify any failure on his part to read the Agreement before he signed it. The Signature Provision appears on the same page as the signature line, spaced apart from the preceding provisions of the contract, and with the heading “Signing Individual” in boldface type. Under these circumstances, Bush must be charged with knowledge of the Signature Provision, even if he did not read it, and he is therefore bound, individually, to the terms of the Agreement.
(b) Additionally, we find no violation of the Statute of Frauds. Under OCGA § 13–5–30(2), “[a] promise to answer for the debt, default, or miscarriage of another” “must be in writing and signed by the party to be charged.” And Georgia courts have interpreted this language “to mandate ... that a guaranty identify the debt, the principal debtor, the promisor, and the promisee.” (Citations omitted.) Dabbs v. Key Equip. Finance, Inc., 303 Ga.App. 570, 572, 694 S.E.2d 161 (2010).
But the Signature Provision in this case (Emphasis omitted.) Rankin v. Smith, 113 Ga.App. 204, 206(1), 147 S.E.2d 649 (1966). See also OCGA § 10–7–1.2 Rather, Bush agreed to assume the same obligations that Progressive had under the Agreement, including, but not limited to, the obligation “to furnish all labor, materials, tools, equipment and insurance necessary to furnish and install a complete Electrical package” on the Project, to pay any materialmen or subcontractors promptly, and to indemnify TFC against any losses arising out of any breach by Progressive under the Agreement. Therefore, Bush is a principal to the contract, not a guarantor.
Even though TFC's...
To continue reading
Request your trial
-
Zambetti v. Cheeley Invs., L.P., A17A1052
...one of indemnity,7 and "[c]ontracts of indemnity generally fall outside the Statute of Frauds." Progressive Elec. Svcs. v. Task Force Constr., 327 Ga. App. 608, 613 (1), 760 S.E.2d 621 (2014), citing Copeland v. Beville, 93 Ga. App. 442, 443 (1), 92 S.E.2d 54 (1956).Finally, we find no subs......
-
Emory Univ., Inc. v. Neurocare, Inc., 19-14160
...voluntary assumption of the underlying litigation and voluntary payment through settlement. Neurocare cites Progressive Electrical Services, Inc. v. Task Force Construction, Inc., for the proposition that the voluntary payment doctrine is "not a defense" but rather places the burden on the ......
-
Everidge v. Wells Fargo Bank, N.A., CASE NOS.: 5:12-CV-497 (LJA)
...caused by conduct of [Plaintiff] which made [Defendants'] performance useless or impossible." Progressive Elec. Servs., Inc. v. Task Force Const., Inc., 760 S.E.2d 621, 626 (Ga. Ct. App. 2014) (citation omitted). As discussed, Plaintiff was extremely delinquent at the time the Home was dest......
-
Auto-Owners Ins. Co. v. CW Masonry, Inc.
...summary judgment de novo and construe the evidence in the light most favorable to the nonmovant." Progressive Elec. Svcs. v. Task Force Constr ., 327 Ga. App. 608, 609, 760 S.E.2d 621 (2014). Viewed in that light, the record shows that July 8, 2009, CWM entered into a subcontract agreement ......
-
2014 Georgia Corporation and Business Organization Case Law Developments
...signature read "Authorized Signature individually and for the Company." In Progressive Electrical Services v. Task Force Construction, 327 Ga. App. 608, 760 S.E.2d 621 (2014), the signature block did not indicate that the signer was bound individually, but the defendant was nonetheless held......
-
Construction Law
...764 S.E.2d at 878.14. Id. at 276, 764 S.E.2d at 878.15. Id. at 276-77, 764 S.E.2d at 879.16. Id. at 277, 764 S.E.2d at 879.17. Id.18. 327 Ga. App. 608, 760 S.E.2d 621 (2014).19. Id. at 608-09, 760 S.E.2d at 623.20. Id. at 611, 760 S.E.2d at 624. 21. Id. at 609, 760 S.E.2d at 623 (emphasis s......