Walton v. Datry

• Decision Date: 06 November 1987
• Docket Number: 74998,Nos. 74936,s. 74936
• Citation: 363 S.E.2d 295,185 Ga.App. 88
• Parties: WALTON v. DATRY.
• Court: Georgia Court of Appeals

Page 295

363 S.E.2d 295

185 Ga.App. 88

WALTON v. DATRY.

Nos. 74936, 74998.

Court of Appeals of Georgia.

Nov. 6, 1987.

Rehearings Denied Nov. 25, 1987.

Certiorari Denied Jan. 13, 1988.

Neil L. Heimanson, Atlanta, for appellant.

A. Joseph Nardone, Jr., Decatur, for appellee.

BEASLEY, Judge.

On May 8, 1985, Eric Datry, d/b/a Interface Construction Consultants (general contractor) and Edwin Walton (landowner) entered into a contract to renovate Walton's veterinary office. The contract was on an American Institute of Architects document A-11 entitled: "Standard Form of Agreement Between Owner and Contractor where the basis of payment is the cost of work plus a fee. 1978 Edition." Datry in turn engaged Tip Top Roofer, Inc., (subcontractor) to perform roofing repairs and replacement for a contract price of $9,998.

Disputes arose among the three parties regarding performance and payment under the contract, engendering two lawsuits which in turn resulted in the two appeals we now consider. The first suit (now case no. 74998) was brought by Walton against Datry and set forth claims for breach of contract, accounting, breach of warranty, fraud and punitive damages. Datry answered and counterclaimed for breach of contract, quantum meruit, attorney fees and slander.

In the second action (case no. 74936) Tip Top filed suit against Walton and Datry alleging that because the contract price for the roofing work had not been paid, Datry was indebted for that amount to Tip Top and Tip Top is entitled to a special lien on Walton's property.

Walton filed its answer along with a counterclaim and a crossclaim against Datry. Datry also answered and counterclaimed and brought a five-count crossclaim against Walton. The fifth count alleged that work done by Tip Top was performed at the instance of Datry on behalf of Walton pursuant to a contract between Datry and Walton which provided for reimbursement of costs incurred by, as well as indemnity for losses and expenses sustained by, Datry; and that Datry was entitled to a judgment over against Walton for any amount found to be due Tip Top.

Case No. 74936

Because it involves basically procedural issues, we first consider Tip Top's action against Walton and Datry, and their counterclaims and crossclaims.

After the last answer was filed October 22, 1986, the case was scheduled for trial on December 8 but by consent of the parties was continued. Trial was reset for February 9, 1987. Proposed pretrial orders were filed but not signed by the court. Both Walton and Datry moved to continue the case and on February 9, Walton renewed his motion for continuance. Walton amended his proposal for pretrial order by disclosing additional witnesses on February 10. On that same day Datry filed a motion for the limitation, formulation and simplification of issues. Attached thereto was Datry's motion for summary judgment in the direct suit plus citations to depositions taken in that case.

Datry's motion was granted; the trial court ruled that the written contract was for "cost plus" with no maximum, rather than for a "fixed price" as contended by Walton, and determined that Walton was precluded from offering evidence of prior or contemporaneous representations contradictory to its terms. The trial court also limited the issues between Walton and Datry solely to whether Datry had a claim over against Walton; the remaining issues were left for trial in the other lawsuit between Walton and Datry (case no. 74998).

The case was then called for trial and the motions for continuance denied. A jury was selected and then excused until the next day. Walton orally moved to dismiss Datry's counterclaim on the ground that Datry had admitted not paying Tip Top and under the terms of the contract could not recover against Walton. This motion was overruled.

The parties entered into a consent judgment whereby Tip Top obtained a judgment against Datry for the price of the roofing work. It also obtained a special lien against Walton's property for that amount and both defendants agreed to indemnify and hold Tip Top harmless as to any claims arising out of the controversy between Walton and Datry.

The parties consented to the dismissal of the jury and for the matter to be determined by the trial court. After a hearing, the trial court entered an order which recited that Walton and Datry had entered into a construction contract which as determined by the ruling on Datry's motion in limine was a "cost plus" rather than a "fixed price" contract; that pursuant to the contract a new roof was put on Walton's premises the cost of which was included in the contract; that under Article 8 of the contract Walton was to pay Datry the cost of work; that this included under "article 8.1.5" the cost of all materials, supplies and equipment incorporated in the work and under "article 8.1.12" all losses and expenses, "not compensated by insurance or otherwise, sustained by the contractor in connection with the work, provided they have resulted from causes other than the fault or neglect of the contractor, including settlements made with the written consent and approval of the owner." The trial court further found that "reimburse" includes "indemnify or made whole" that "reimburse" is a synonym for "indemnify" which means "to save harmless; to secure against loss or damage." The court reasoned that, since Datry had confessed judgment in favor of Tip Top and Walton had confessed a special lien against his property in favor of Tip Top, the expense of Tip Top's judgment against Datry was a part of the cost to be reimbursed to Datry by Walton. It also found for Datry on the remaining portion of his crossclaim against Walton and entered judgment in his favor.

Walton appealed, enumerating as error: 1) the overruling of his motion for continuance; 2) the sustaining of Datry's motion in limine (motion to limit, formulate and simplify the issues); 3) the entry of judgment in favor of Datry; 4) the denial of Walton's oral motion to dismiss.

1. Because USCR 5 provides that discovery must be commenced promptly and completed within six months after the filing of the answer unless the time has been extended or shortened by court order, Walton urges that it was error to refuse to grant his continuance for additional discovery where six months had not elapsed. Walton's argument concerning his motion for continuance has been decided adversely to his contention by our Supreme Court in Alexander v. Macon-Bibb County etc. Auth., 257 Ga. 181, 184(5), 357 S.E.2d 62 (1987): "This rule does not, as appellant suggests, require that he be given 6 months in which to complete discovery."

2. Walton urges that Datry's written motion in limine was filed on the day of the trial in violation of Walton's right to 5 days' notice under OCGA § 9-11-6(d) which specifies: "A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by this chapter or by order of the court." It is also argued that the inclusion of materials from the other case converted the motion into one for summary judgment requiring service 30 days before a hearing. OCGA § 9-11-56(c).

Motions in limine, which evolved outside the ambit of the Civil Practice Act, invite the court's determination as to admissibility of evidence preliminary to its introduction. Pierce v. State, 173 Ga.App. 551, 552(2), 327 S.E.2d 531 (1985); Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285, 260 S.E.2d 20 (1979). In a broad sense the term refers "to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." Luce v. United States, 469 U.S. 38, 40 n. 2, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). A motion in limine may be made either in writing or orally at time of trial. Gosnell v. Waldrip, 158 Ga.App. 685, 686, 282 S.E.2d 168 (1981). It is used in two ways: "1) The movant seeks not a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during the trial, of a certain item of evidence or area of inquiry until its admissibility can be determined during the course of the trial outside the presence of the jury. [Cits.] 2) The movant seeks a ruling on the admissibility of evidence prior to the trial." State v. Johnston, 249 Ga. 413, 415(3), 291 S.E.2d 543 (1982).

Here the extrinsic proof offered did not convert the motion into one for summary judgment because such proof is part and parcel of the showing necessary to obtain the preliminary exclusion of evidence via a motion in limine. Neither OCGA § 9-11-12(b) nor OCGA § 9-11-56(c) apply.

With regard to OCGA § 9-11-6(d), we are disinclined to apply it to a motion in limine which frequently is oral, not written, and often is made at the commencement of trial. This would have a negative effect on written motions, for to apply the code section strictly would penalize one who submitted a written motion rather than an oral one which has no time requirement. Moreover, since the issue can always be raised during the trial, a prospective movant need only wait until just before the evidence is sought to be elicited and then make an oral objection. In that instance the party opposing the motion has even less time to prepare a counter showing.

However, even if OCGA § 9-11-6(d) is applicable a violation is not cause for reversal unless harm be shown. Burger Chef Systems v. Newton, 126 Ga.App. 636, 639(1), 191 S.E.2d 479 (1972). The purpose of subsection (d) is to prevent a party from being surprised on the day of the hearing by an affidavit he is not in a position to answer. Fairington, Inc. v. Yeargin Constr. Co., 144 Ga.App. 491(1), 241 S.E.2d 608 (1978). See Southwest Ga. Prod. Credit Assn. v. Wainwright, 241 Ga. 355, 356(1), 245 S.E.2d 306 (1978).

Walton cannot assert he was surprised by the issue...