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Smith v. Dill's Builders, Inc.

Court of Appeals of Georgia

June 12, 2015

SMITH et al.
v.
DILL'S BUILDERS, INC

Contract. Irwin Superior Court. Before Judge Cross.

Judgment reversed and case remanded.

The Dove Law Firm, Andrew M. Dove, for appellants.

Mixon & Mixon, Warren L. Mixon, for appellee.

MILLER, Judge. Andrews, P. J., and Branch, J., concur.

OPINION

Page 445

Miller, Judge.

Dill's Builders, Inc. (" DBI" ) filed suit against Sharon T. Smith and Meiko A. Camp (collectively, " the Defendants" ) to collect the balance due on a contract to build a new home. The trial court granted summary judgment to DBI, finding that Smith's affidavit in response to DBI's motion was insufficient to establish genuine issues of material fact. The Defendants appeal, contending that (1) summary judgment was premature as to Camp because the trial court failed to resolve pending jurisdictional issues, and (2) summary judgment was not warranted because genuine issues of material fact remain as to whether DBI adequately performed under the contract. For the reasons that follow, we reverse and remand.

On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine if there exists a genuine issue of material fact and whether

Page 446

the undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the movant to judgment as a matter of law.

(Citation omitted.) Capital Color Printing v. Ahern, 291 Ga.App. 101, 102 (661 S.E.2d 578) (2008).

Viewed in the Defendants' favor, the evidence shows that on January 21, 2006, Smith and her daughter, Camp, executed a written contract with DBI for the construction of a new house. In executing the contract, Smith and Camp approved the drawings and specifications prepared by DBI. The contract price was $167,795, and the contract provided that the house would be completed within six months of the start date. On the same date that the contract was executed, Smith signed a blank change order, which Smith alleged was later completed by DBI.

During construction, Smith complained to DBI about discrepancies between the plans and the usable square footage of the house, as well as the workmanship of the construction. Following completion of the house in October 2006, Smith and DBI conducted a walk-through, and Smith noted several issues that needed to be fixed. DBI promised [332 Ga.App. 492] to have the problems repaired, but failed to do so. After Smith refused to pay the balance on the contract, DBI sent Smith a demand ...


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