Vratsinas Construction Co. v. Triad Drywall, LLC
321 Ga. App. 451
| Ga. Ct. App. | 2013Background
- Triad Drywall, LLC, a subcontractor, worked on the Ashley Park project under a Subcontract with Vratsinas Construction Company (VCC).
- The Subcontract contained a pay-if-paid provision requiring payment to Triad only after Owner payment to VCC.
- Owner’s solvency and eventual bankruptcy left VCC unpaid for substantial work; VCC paid Triad only after receiving Owner funds for earlier applications.
- Davenport, VCC’s project manager, allegedly told Triad’s Gadi Gal that VCC would pay from its own funds if necessary, despite the Owner’s finances.
- Triad submitted seven more payment applications; VCC refused those payments as the Owner had not paid, and the Owner stopped paying in September 2007.
- Triad filed suit in March 2009 seeking the remaining balance; the trial court denied summary judgment and submitted waiver to the jury, which Triad prevailed on at trial; the appellate court reversed on waiver, finding it was a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of pay-if-paid provision as a matter of law | Triad (VRA) argues waiver occurred through conduct | VCC argues no clear waiver; terms maintained | Waiver issue was decided as a matter of law for VCC |
| Mootness of Triad’s cross-appeal | Triad asserts issues contingent on new trial | No live issues post-reversal | Moot; dismissed |
Key Cases Cited
- Goldsmith v. Peterson, 307 Ga. App. 26 (Ga. Ct. App. 2010) (waiver defense must be clear and unmistakable; error to submit waiver to jury when established)
- Forsyth County v. Waterscape Servs., LLC, 303 Ga. App. 623 (Ga. Ct. App. 2010) (waiver and contract-right doctrines; standards applied)
- Oxford Motors Co. v. Niblack, 183 Ga. App. 771 (Ga. Ct. App. 1987) (question of waiver generally a jury issue when evidence conflicts; not in this case)
- Primetech Sys., Inc. v. Avion Sys., Inc., 286 Ga. App. 175 (Ga. Ct. App. 2007) (summ. judgment affirmed; no waiver as a matter of law for signatures)
- D. I. Corbett Electric, Inc. v. Venture Constr. Co., 140 Ga. App. 586 (Ga. Ct. App. 1976) (waiver analysis; clear and unmistakable intent required)
- Hill Roofing Co., Inc. v. Lowe’s Home Ctrs. Inc., 265 Ga. App. 822 (Ga. Ct. App. 2004) (standard of review for waiver questions)