State Highway Dept. v. Charles R. Shepherd, Inc., 44207
| Decision Date | 30 April 1969 |
| Docket Number | No. 44207,No. 1,44207,1 |
| Citation | 119 Ga.App. 872,168 S.E.2d 922 |
| Parties | STATE HIGHWAY DEPARTMENT v. CHARLES R. SHEPHERD, INC |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The defendant's proof having pierced the allegations of the plaintiff's petition and the plaintiff having failed to offer any counter proof, summary judgment as to Grounds 1 and 3 of the defendant's motion should have been granted. However, the affidavit offered by the defendant in support of Ground 2 of its motion for summary judgment was insufficient to eliminate the necessity for a jury's determination and the trial judge correctly overruled that ground.
Charles R. Shepherd, Inc., filed its claim in the Dougherty Superior Court against the State Highway Department of Georgia. The claim, as amended, alleged that the plaintiff was entitled to recover a total of $131,449.23 from the defendant for the construction of a project known as Federal Aid Project, F-006-2(8). The claim sought to recover $39,075.74 for work performed under the contract, $38,606.60 for extra work for reinforcing the subgrade correcting work erroneously staked by the defendant, replacing unstable materials and performing drainage work; and the sum of $53,766.89 for additional yardage above that provided in the contract of material consisting of 'unclassified excavation and borrow' furnished at the rate of 32 1/2cents per cubic yard.
The defendant filed an answer in which the material allegations of the claim were denied. The defendant did admit that it owed $22,275.74 of the original claim of $39,075.74 and stipulations were entered to that effect.
After the filing of various interrogatories and pleadings, the defendant filed its motion for summary judgment and in support thereof attached affidavits of certain employees of the State Highway Department. The plaintiff made no response to this motion by affidavit or evidence or by filing any additional pleadings. The motion then came on for hearing at which time the trial court entered an order overruling it on each and every ground. It is from this order that the defendant filed this notice of appeal.
The motion for summary judgment consists of three grounds which attack three paragraphs of the plaintiff's claim. They will be considered in consecutive order.
Arthur K. Bolton, Atty. Gen., Richard L. Chambers, John A. Sligh, Jr., Asst. Attys. Gen., Atlanta, for appellant.
Robert A. Blackwood, Atlanta, for appellee.
1. Ground 1 of the motion for summary judgment sets out that there is no genuine issue as to any material fact regarding paragraph 5 of the plaintiff's complaint. Paragraph 5 alleges: 'There is due the plaintiff for the work performed under said contract as aforesaid the sum of thirty-nine thousand seventy-five and 74/100 ($39,075.74) dollars, which the Defendant has failed and refused to pay.' The defendant in its answer admitted that it was indebted to the plaintiff in the amount of $22,275.74 and tendered this amount to the plaintiff. Thereupon the parties stipulated that this amount had been paid to the plaintiff and that the plaintiff had accepted it; this money represented the indebtedness which the defendant admitted it owed the plaintiff. It was further stipulated that the plaintiff contended that the defendant was further indebted to the plaintiff. The defendant denied any further indebtedness.
The defendant contends that it did not owe the difference between the sum it tendered to the plaintiff and that amount claimed by the plaintiff, which was $16,800, since this amount was owed to the defendant as liquidated damages for the plaintiff's failure to complete the work on time. The Standard Specifications of the contract (which was also stipulated to by the parties) provided that for an original contract amount of $2 million or more, the amount of liquidated damages per calendar day would be $300. The contract was in excess of $2 million. The affidavit of the highway project engineer for the defendant related that he kept the time charges for the working days in conformity with the contract; that the actual contract time of 400 working days expired on June 9, 1960, that on June 10, he began charging liquidated damages on a calendar day basis and this continued until September 29, 1960; that the contractor was charged with 112 calendar days at $300 per day of liquidated damages, or a total of $33,600. The State Highway Engineer testified by affidavit that pursuant to his authority he reduced the charges against the contractor for the delays in completion of the project from 112 days to 56 days, and thus the total of liquidated damages was $16,800. Since there was no proof adduced to counter that introduced by the defendant, it is clear that as a matter of law, the defendant pierced the allegations of paragraph 5 of the plaintiff's claim.
Code Ann. § 81A-156(e). (Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238.) Crutcher v. Crawford Land Co., 220 Ga. 298, 304, 138 S.E.2d 580.
The trial judge erred in overruling Ground 1 of defendant's motion for summary judgment.
2. Ground 2 of the defendant's motion attacks paragraph 6 of the plaintiff's claim which provides:
The defendant contends that under the terms of the contract in order to receive compensation for extra work the contractor must notify the Highway Department of the intention to claim extra compensation before he begins the work and must afford proper facilities to the project engineer for keeping strict account of actual costs; that unless these two prerequisites are accomplished the contractor waives the claim for extra compensation. The defendant urges that the contractor did waive such claim because of the affidavit by the project engineer which stated: 'I never received any claim, nor to my knowledge did the State Highway Department of Georgia, receive a claim because of alleged extra work of reinforcing the subgrade, mixing and aerating the subgrade, correcting work erroneously staked by the State Highway Department employees, or replacing unstable materials and performing drainage work, nor was I, or any other engineer employed by the State Highway Department of Georgia, afforded proper facilities by the contractor, for keeping strict account of actual cost of work as required for force account agreements.'
On motion for summary judgment, the proof offered is construed most strongly against the movant and in favor of the party objecting to the motion. 'The party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence.' Holland v. Sanfax Corporation, 106 Ga.App. 1, 5, 126 S.E.2d 442. Giving the affidavit in question such construction, it is obvious...
To continue reading
Request your trial
-
Gurley v. EAST ATLANTA LAND CO., INC.
...sale, and establish that East Atlanta held superior title to all the world in the subject property. State Hwy. Dept. v. Charles R. Shepherd, Inc., 119 Ga. App. 872, 168 S.E.2d 922 (1969). It follows that Gurley would have been entitled to a jury trial, OCGA § 23-3-66, if the evidence presen......
-
Southeastern Highway Contracting Co. v. State Highway Dept.
...Dept. v. W. L. Cobb Construction Co., 111 Ga.App. 822, 825, 143 S.E.2d 500. As we pointed out in State Highway Dept. v. Charles R. Shepherd, Inc., 119 Ga.App. 872, 879, 168 S.E.2d 922, 927: 'Questions as to compensation for work actually performed but not allowed are not finally determined ......
-
Willis v. Integrity Nat. Life Ins. Co.
... ... material false representations as to the state of her husband's health in applying for the ... Robbins Home Improvement Co., Inc., 95 Ga.App. 882(2a), 99 S.E.2d 319; Mobley v ... ...
-
Burgess v. Clermont Properties, Inc., 53034
...summary judgment, if appropriate, shall be entered against him.' C.P.A. § 56(e) (Code Ann. § 81A-156(e)); State Hwy. Dept. v. Charles R. Shepherd, 119 Ga.App. 872(1), 168 S.E.2d 922. The fact of notice having been established and unrebutted no genuine issue remains on this 2. Burgess next c......