331 Ga. App. 404
Ga. Ct. App.2015Background
- Sekisui SPR Americas, LLC subcontracted with Southern Products to perform sewer replacement work (Embassy Drive Project) for the City of College Park; Southern was the prime contractor under terms the City authorized using a Clayton County Water Authority contract.
- The project scope grew and Sekisui submitted invoices exceeding $314,000; the City paid Southern Products, but Southern failed to pay Sekisui for the last invoices and later became insolvent.
- Sekisui sued the City asserting a statutory remedy under OCGA § 36-91-91 (failure to require a payment bond under OCGA § 36-91-90) and alternative theories (quantum meruit, unjust enrichment, implied obligation to pay), and sought attorney fees; the trial court granted Sekisui summary judgment.
- The City appealed, arguing (1) Sekisui failed to give required ante litem notice, (2) the emergency exception to the bond requirement applied so no bond was required, (3) Sekisui’s alternative quasi-contractual claims are barred, and (4) factual disputes existed as to damages.
- The Court of Appeals reversed, holding Sekisui was not entitled to relief because the City’s emergency exemption applied and Sekisui’s alternative remedies were foreclosed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ante litem notice requirement under OCGA § 36-33-5 | Sekisui did not need to comply because its claims are contractual/statutory, not torts | City argued Sekisui failed to give ante litem notice required for suits against municipalities | Court: OCGA § 36-33-5 applies only to tort claims for personal injury/property damage; no ante litem notice required for Sekisui’s contract/statutory claims |
| Whether City was required to obtain a payment bond under OCGA § 36-91-90 | Sekisui: bond required because project cost exceeded $100,000 | City: emergency exception under OCGA § 36-91-22(e) applies; minutes ratified emergency replacement of collapsed sewer main | Court: emergency exception applies; City complied by describing emergency in council minutes; no bond required |
| Availability of quasi-contractual remedies (quantum meruit, unjust enrichment) against the City | Sekisui sought recovery under unjust enrichment/quantum meruit/implied obligation to pay | City: subcontractor cannot recover from public owner absent statutory remedy; those remedies are precluded | Court: quasi-contractual remedies barred; subcontractor limited to statutory remedies (and here § 36-91-91 inapplicable due to emergency) |
| Lien or other recovery given statutory remedy unavailable | Sekisui: could seek other relief or damages from City | City: City paid prime contractor; no funds remain to lien; statutory remedy not available | Court: No funds to attach by lien; Sekisui has no viable remedy against City; summary judgment for Sekisui reversed |
Key Cases Cited
- Vaillant v. City of Atlanta, 267 Ga. App. 294 (summary judgment standard)
- City of College Park v. Ga. Interlocal Risk Mgmt. Agency, 313 Ga. App. 239 (context for Sekisui’s claims)
- City of Statesboro v. Dabbs, 289 Ga. 669 (ante litem notice statute limited to torts)
- Neely v. City of Riverdale, 298 Ga. App. 884 (contract claims not subject to ante litem notice)
- Hussey, Gay & Bell v. Ga. Ports Authority, 204 Ga. App. 504 (subcontractor precluded from unjust enrichment against owner)
- McArthur Elec., Inc. v. Cobb County School Dist., 281 Ga. 773 (lien on owner funds as remedy when statutory remedy inadequate)
- J. Kinson Cook, Inc. v. Weaver, 252 Ga. App. 868 (subcontractor cannot recover in quantum meruit absent direct contract)