Ranger Const. Co. v. Robertshaw Controls Co., 61594

• Decision Date: 19 March 1981
• Docket Number: No. 61594,61594
• Citation: 158 Ga.App. 179,279 S.E.2d 477
• Parties: RANGER CONSTRUCTION COMPANY et al. v. ROBERTSHAW CONTROLS COMPANY et al.
• Court: Georgia Court of Appeals

Page 477

279 S.E.2d 477

158 Ga.App. 179

RANGER CONSTRUCTION COMPANY et al. v. ROBERTSHAW CONTROLS COMPANY et al.

No. 61594.

Court of Appeals of Georgia.

March 19, 1981.

Rehearing Denied April 3, 1981.

Certiorari Denied May 19, 1981.

Edward H. Wasson, Jr., Michael F. Swick, Atlanta, for appellants.

C. James Jessee, Jr., E. T. Nance, Jr., Atlanta, for appellees.

DEEN, Presiding Judge.

Dresco Mechanical Contractors, Inc. ("Dresco") entered an agreement with Ballenger Corporation, f/k/a Ranger Construction Company ("Ballenger") to provide mechanical work relating to the construction of the Northwest Georgia Regional Hospital located at Rome, Georgia, for which project Ballenger was the general contractor. The Travelers Indemnity Company ("Travelers") acted as surety on Ballenger's payment bond; United States Fidelity & Guaranty Company ("USF&G") was surety on Dresco's performance bond naming Ballenger as obligee.

Subsequently, Dresco contracted with Robertshaw Controls Company ("Robertshaw") to provide and install the automatic temperature and humidity control systems for several buildings at the hospital complex. Some five years later, Robertshaw filed suit in the State Court of Fulton County against Ballenger and Travelers alleging that it had completed performance in accordance with that contract, that Dresco had paid Robertshaw in part, but that a balance of $45,137.00 remained payable to Robertshaw, and that Robertshaw had given Ballenger and Travelers notice of Dresco's default and had demanded payment of said amount, which payment presumably was refused.

Ballenger and Travelers then filed a third-party complaint against Dresco and USF&G alleging that any liability of Ballenger and Travelers to Robertshaw was secondary to that of Dresco and USF&G and seeking subrogation to Robertshaw's rights and indemnification from Dresco and USF&G for any liability that might be found under Robertshaw's complaint. Dresco and USF&G filed motions to dismiss the third-party complaint raising the defenses of prior suit pending, res judicata, conclusiveness of judgment and collateral estoppel based upon claims allegedly adjudicated in the earlier case of Ballenger Corp., f/k/a Ranger Construction Co. v. Dresco Mechanical Contractors, Inc., et al., Civil Action No. B-96990 in the Superior Court of Fulton County. See, Ballenger Corp. v. Dresco Mech. Contractors, 156 Ga.App. 425, 274 S.E.2d 786 (1980). Robertshaw was not a party to that litigation.

In support of these motions to dismiss, Dresco and USF&G submitted the affidavits of Carole M. Foster, court reporter in the earlier action, and C. James Jessee, Jr., their attorney, to which were attached certified copies of pleadings, extracts from the prior trial transcript and the order and judgment entered in the earlier suit. In opposition to the motions, Ballenger and Travelers submitted the affidavits of W. S. Ellison, manager of Ballenger's Atlanta office, and Edward H. Wasson, Jr., their attorney.

At the hearing on the motions, the parties stipulated that the motions to dismiss would be treated as motions for summary judgment and that evidence to be considered by the court would include the affidavits and exhibits tendered by the parties. The court subsequently ruled that the prior suit and the instant suit related to the same subject matter, and that Code § 3-601 thus required that the present third-party complaint be dismissed. From this order and judgment granting Dresco and USF&G summary judgment as to the third-party complaint, Ballenger and Travelers lodge this appeal.

Initially, we note that the extracts from the previous trial's transcript that are included in the record before us include some forty-eight pages of a transcript earlier noted by this court to consist of over 14,000 pages of testimony and exhibits. Ballenger Corp. v. Dresco Mech. Contractors, supra, at 425, 274 S.E.2d 786. Naturally for the purposes of the instant case, we may pass only upon that evidence contained in the present record, and we are therefore forced to assume that the extracts before us contain all references in the earlier litigation to the claim here subject to our review. From these extracts we surmise that Ballenger initially tendered an exhibit in the earlier trial (Plaintiff's Exhibit 128) summarizing its claims against Dresco which included the claim here asserted by Robertshaw, but subsequently withdrew that exhibit and tendered a revised exhibit (designated by another number) deleting the Robertshaw claim. Ballenger subsequently moved "that the court enter an order that (the Robertshaw) claim may be tried in that separate action (the instant lawsuit) ... and permit that issue to be resolved in that litigation." Ballenger argued that since Robertshaw's work had not at that time been accepted by the owner, the sums claimed therefor were not yet due and the rights of Ballenger and Dresco relative to that claim could not, therefore, be adjudicated in that action. After hearing numerous other arguments, including Dresco's tender of Exhibit 128, the court overruled Ballenger's motion. In seeking clarification as to the court's ruling, counsel for Ballenger...