West v. Jamison, s. 73714

• Decision Date: 07 April 1987
• Docket Number: Nos. 73714,73715,s. 73714
• Citation: 182 Ga.App. 565,356 S.E.2d 659
• Parties: WEST v. JAMISON. JAMISON v. WEST.
• Court: Georgia Court of Appeals

Page 659

356 S.E.2d 659

182 Ga.App. 565

WEST v. JAMISON.

JAMISON v. WEST.

Nos. 73714, 73715.

Court of Appeals of Georgia.

April 7, 1987.

C. George Newbern, Valdosta, for appellant.

Jim Jamison, pro se.

BIRDSONG, Chief Judge.

Arbitration Award. In 1983 McDonough, Ltd. (a partnership) desired to construct a 48-unit apartment complex to be financed by the Farmers Home Administration. The partner charged with construction contacted Jamison, an architect, to develop preliminary drawings for the complex in accordance with other, earlier developments, constructed by McDonough, Ltd. and designed by Jamison. As testified to by Jamison, this involved Jamison's beginning the drawings and presenting these preliminary drawings to the owners prior to any contract being executed. After the initial drawings had been prepared and tentatively accepted by McDonough, Ltd., Jamison prepared a standard architectural contract, signed it with his terms and forwarded the contract to McDonough, Ltd. for execution. Jamison agreed to do all necessary architectural work for a flat fee of $36,000. After submitting the preliminary drawings and the signed contract to West for approval, the project lay fallow for well over a year.

Jamison became aware that a controversy had developed with the zoning authority, the City of McDonough. As developed at the hearing, it appears that McDonough, Ltd. owned 6 acres of land upon which to develop the complex but apparently wished to use only 4.9 acres. Because of the topography of the land and the amount of acreage presented to Jamison for the design of the 48 units, Jamison had to make changes in the designs and density of the several buildings. These designs when presented to the Farmers Home Administration were accepted and financing was indicated as probable. However when the design was presented to the City of McDonough, the design was held not to meet the density requirements of the zoning of the city. Ultimately after litigation, the density projected by the designs was held not to violate zoning restrictions. West (the general partner of McDonough, Ltd.) then recontacted Jamison and sought to have Jamison redesign in great part the complex because the apartments would be redistributed on six acres rather than 4.9 acres. Jamison refused to wholly redesign the complex unless West paid as additional services for the redesign. When the parties could not come to an agreement, West fired Jamison as the architect of the project. In accordance with the provisions of the architectural contract, Jamison demanded arbitration and after the required procedures, the contract dispute was settled by an arbitrator.

The principal dispute between the owner and the architect involved the unilateral addition by West in the pre-signed contract submitted to West by Jamison of a payment provision that the payment for architectural services would not become effective until and unless the construction was actually commenced. We note that such an addition was in contradiction of Article 6 of the contract. It is disputed whether the parties ever agreed to this addition to the contract. Jamison argued before the arbitrator that the contract was generally to be upon the same terms as those which had been used in prior arrangements between the parties and there had never been such a provision for construction to antecede payment for architectural services. Jamison also contended that this clause had not been placed in the contract until after the dispute had arisen between McDonough, Ltd. and the City of McDonough, placing the commencement of construction in doubt. At a meeting at which the resumption of the work was discussed, Jamison and West confronted each other with the added provision concerning commencement of construction. Although Jamison contended he never agreed to the addition of that clause, immediately below that clause is yet another sequentially numbered clause admittedly agreed to by both parties, that if additional services were rendered without the commencement of construction, West would pay for such services as out-of-pocket expenses. This added provision, however, is not necessarily in contravention of Article 6. There were certain services rendered and West paid Jamison $4,636.77 for such additional services. West contended before the arbitrator that by agreeing to the last clause for payment for additional services even in the absence of commencement of construction, Jamison likewise agreed to the immediately preceeding clause declaring the contract null and void if no construction was commenced.

Part of the payment schedule in the contract contemplated periodic payments based upon performance and provided for 25 percent to be paid at the completion of the Schematic Design Phase, 20 percent at completion of the Design Development Phase, 35 percent at completion of the Construction Documents phase and 20 percent during the construction phase. It is clear from the contract that all of the design drawings had to be completed and accepted prior to the beginning of construction. The responsibility during construction was to make necessary design revisions and to see that the work proceeded in accordance with the designs. Prior to the delay, Jamison had submitted a bill to West for payment of $27,000 for completion of 75 percent of the work under the contract.

After conducting a hearing at which West was present and was represented by counsel and Jamison represented himself pro se, the arbitrator entered an award in favor for Jamison for the entire amount of the architectural fee. It appears that the award was based upon the total fee of $36,000, plus a termination fee of $1,800, contractually provided interest at .015 percent for eight months in the amount of $3,979.59, and arbitration costs in the amount of $863.26 less the prepayment of $4,636.77 for additional services, such award being calculated by the arbitrator in the amount of $38,006.08. West declined to pay the fee determined to be due by the arbitrator. Jamison then petitioned the superior court for judgment upon the arbitration award pursuant to the provision of OCGA § 9-9-92. The superior court confirmed the award of the arbitrator. West has filed his appeal and Jamison has filed a cross-appeal contending the court erred in not awarding post judgment interest. Held:

West...