Cert. applied for.
Payment bond. Fulton Superior Court. Before Judge Baxter.
Fincher Denmark Williams & Minnifield, Steven M. Fincher, Winston A. Denmark, Emilia C. Walker, for appellant.
Holland & Knight, Keith M. Wiener, A. André Hendrick, Cody S. Wigington, for appellee.
Sekisui SPR Americas, LLC, a subcontractor that worked on a sewer project for the City of College Park (" the City" ), sued the City when the general contractor failed to pay Sekisui for work performed, alleging that the City was liable because it had failed to ensure the [331 Ga.App. 405] contractor obtained a payment bond in violation of OCGA § 36-91-90. In addition to raising a cause of action under OCGA § 36-91-90 et seq., Sekisui also raised claims of quantum meruit, unjust enrichment, implied obligation to pay, and sought attorney fees. The parties filed cross-motions for summary judgment, and the trial court granted Sekisui's motion and denied the City's motion. The City appeals, contending that the trial court erred in denying its motion to dismiss the case for failure to comply with the ante litem notice requirements for suits against municipalities. The City also contends that the trial court erred in granting summary judgment to Sekisui because the undisputed evidence showed that Sekisui was not entitled to relief for a violation of OCGA § 36-91-90, Sekisui was precluded from pursuing other forms of relief, and questions of fact remained as to damages.
Since Sekisui does not have a viable claim against the City, we reverse.
Summary judgment is appropriate when the moving party demonstrates that no genuine issues of material fact remain and that the facts, construed favorably to the nonmoving party, demand judgment as a matter of law. On appeal, we review the trial court's grant of summary judgment de novo.
(Footnote omitted.) Vaillant v. City of Atlanta, 267 Ga.App. 294 (599 S.E.2d 261) (2004).
So viewed, the evidence shows that during the summer of 2005, the City began discussing the need for public works construction on sewer lines in the city, including the repair of the main sewer line on Embassy Drive that had apparently collapsed and needed emergency repair. Southern Products submitted a quote to install a sewer bypass near the creek adjacent to the intersection of Riverdale Road and Embassy Drive. On August 5, 2005, the City approved the quote and directed Southern Products to begin as soon as possible.
On August 8, Southern Products sent a letter requesting that the City use its existing Clayton County Water Authority Annual Contract (the " CCWA Contract" ) in order to replace approximately 1,049 [331 Ga.App. 406] linear feet of the ten-inch sewer pipe near Embassy Drive (the " Embassy Drive Project" ). Southern Products estimated that this project would cost $204,481.50. In the August 8 letter, Southern Products offered to absorb some of the costs associated with maintaining the bypass system during any delay with the start of the sewer line replacement.
The City sought permission from Clayton County to use the CCWA Contract to complete the Embassy Drive Project. Clayton County authorized the City to use the CCWA Contract to establish the terms, unit pricing, and conditions of work in reaching an agreement with Southern Products, but notified the City ...