These companion cases arise from a dispute in which Rollins, Inc., sued Carrier Corporation alleging damages for breach of contract and other claims related to Carrier’s agreement to install a more than $2 million heating, ventilation, and air-conditioning (“HVAC”) system at Rollins’s headquarters. Carrier counterclaimed for unpaid invoices. The case went to trial, and the jury awarded Rollins $350,000 on its claims and awarded Carrier $88,000 on its counterclaim. Both parties appealed, and the cases have been consolidated for our review. In Case No. A12A0481, Carrier alleges that the trial court erred in denying its motions for a directed verdict; refusing to give certain jury charges; and awarding sanctions for Carrier’s failure to comply with discovery orders. In Case No. A12A0482, Rollins appeals from the judgment against it on Carrier’s counterclaims, alleging that the trial court erred in its award of prejudgment interest. We affirm in Case No. A12A0481 and reverse in Case No. A12A0482.
“A jury verdict, after approval by the trial court, and the judgment thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law.”
Viewed in the light most favorable to the jury’s verdict,
Case No. A12A0481
1. On appeal, Carrier argues that the trial court erred in denying its motion for a directed verdict because Rollins’s complaint was filed outside of the HVAC contract’s one-year limitation period.
A trial court may grant a motion for directed verdict “only when no conflict exists in the evidence and the evidence presented, with all reasonable inferences therefrom, demands a particular verdict.”
The HVAC contract provides that “[a]ny suits arising from the performance or non-performance of this Agreement, whether based upon contract, negligence, strict liability or otherwise, shall be brought within one (1) year from the date the claim arose.”
Rollins filed an arbitration claim on February 17, 2009, and filed the cоmplaint in this case on March 30, 2009. Carrier argues that although the term “the date the claim arose” is not defined in the HVAC contract, the time should be measured from the date of “substantial completion” of construction, which occurred about two years before Rollins filed suit. Specifically, Carrier argues that substantial completion occurred in March 2007, when its installation personnel left the job site, and that, therefore, Rollins’s complaint was time-barred.
Rollins counters that its action was not time-bаrred because Carrier personnel continued to work at Rollins’s headquarters, attempting to assess and fix the malfunctioning system, through at least December 2008, when Carrier sent its notice of termination. Rollins further argues that “substantial completion” is a statutory, rather than contractual, concept, that the term does not appear in the HVAC contract, and that it therefore has no bearing on the issue of the contractual limitation.
Pursuant to the terms and conditions of the contract, Carriеr agreed to provide Rollins with a “complete operational system”
“When the question is raised as to whether an action is barred by a statute of limitations, the true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.”
Evidence supports the jury’s conclusion that Rollins’s HVAC system was not a complete operational system because, for example, Rollins never accepted the phase of the contract covering its executive suites. Rollins’s senior vice president, Michael Knottek, who signed the contract with Carrier, testified that there were “constantly problems with the thermostats in the executive
Bruce Burdon, general manager for Carrier’s commercial business, also testified that the system was not complete: “We were at the final stages of completion of the project, and we were ... in the executive area.” In a letter to one of Rollins’s executives dated September 24, 2008, Burdon proposed a plan of action and acknowledged problems with “system reliability associated with the control sequencing of the backup system,” and the need to “maintain set point at all times.” Another letter frоm Burdon to Knottek dated November 14, 2008, and referring to the September 24, 2008 letter, lists action items that have been “completed” and requests payment of invoices.
Rollins, which already had paid more than $2 million to Carrier, refused to pay $61,000 in invoices, arguing the system was still not complete or functional.
Burdon’s testimony proved that the system was only in the “final stages of completion” and not, per se, complete. Further, Carrier’s own letters mentioned above acknowledge that the system was not, in its viеw, “complete” prior to November 2008. Moreover, Rollins did not accept the executive phase of the project, and Carrier continued to work until terminating its relationship with Rollins in December 2008. Until that time, Rollins could not have maintained a successful cause of action, as Carrier still was performing on the contract. Given that Rollins sought arbitration on February 17,2009, and filed suit on March 30, 2009, it filed suit within the limitation period, and the trial court did not err in denying Carrier’s motion for a directed verdict on this ground.
2. Carriеr argues that the trial court erred in refusing to give its requested jury instruction regarding the date of “substantial completion” of the project, and in refusing to charge the jury on the contract’s one-year period of limitation.
“In reviewing an allegedly erroneous jury instruction, we apply the ‘plain legal error’ standard of review.”
It is well established that jury instructions must be read and considered as a whole in determining whether the charge contained error. Moreover, a trial court does not err in refusing to give a requested charge thаt is not legally accurate and adjusted to the evidence. A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence.14
Carrier’s requested charge, in pertinent part, was:
[W]hen a contract has a contractual period of limitations, like the one (1) year found in the March 11,2005 contract, the Plaintiff cannot recover for any cause of action based on the contract that it did not bring within the contractuаlly prescribed period.... The period of limitation on a construction contract commences on the date the work was substantially complete. I charge you that substantial completion is defined as the date when construction was sufficiently completed, in accordance with the contract ... , so that the owner could occupy the project for the use for which it was intended.15
3. Carrier contends that the trial court erred in denying its motion for a directed verdict on Rollins’s claim for damages for breach of written warranty. Carrier argues that under the HVAC contract, “obligations to repair, replace, or issue credit for any defective parts, components or service shall be Customer’s exclusive remedy,” and that Rollins failed to provide written notice of any defective parts that Carrier refused to replace or otherwise correct.
The general verdict form used by the jury, however, conflаtes the issues of breach of contract and breach of warranty. This court will not speculate on the findings of fact supporting a jury’s verdict.
4. Carrier next alleges that the trial court erred in refusing to give a requested jury charge based on Kent v. Hunt & Assocs.
fully complied with its obligation under the contract, both as to the materials used and the manner of doing the work, then [Carrier] is not to be accountable for unsatisfactory results____ [W]here a construction contract provides that work shall be performed in accordance with certain details and specification, mutually agreed upon by both parties, and the work is done in compliance with the terms of that contract, the Plaintiff cannot recover.21
On appeal, Carrier argues that thе court erred in failing to give the requested charge because three engineers testified that the HVAC system was installed in a workmanlike manner as called for in the contract.
A court is not required to “instruct in the exact language of a request, even though the request may be correct as an abstract principle of law which is directly applicable to a material issue.”
5. In its final enumeration, Carrier alleges that the trial court erred in awarding attorney fees as sanctions for Carrier’s failure, despite court orders, to produce its president, Geraud Darnis, for deposition. For the reasons that follow, we affirm.
“Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.”
On December 2, 2010, the trial court issued a joint scheduling order providing that “the following depositions must be taken on or by January 10, 2011 [:] . . . [Geraud] Darnis.”
(a) Carrier arguеs that an award of sanctions under OCGA § 9-11-37 (b) must be preceded by either the grant of a motion to compel under OCGA § 9-11-37 (a)
The general scheme of OCGA § 9-11-37 ... is that ordinarily sanctions can be applied only for a failure to comply with an order of the court. Thus when the discovery procedure itself requires a court order or permits an order[,] failure to obey the order can be punished immediately by any of the sanctions listed in Rule 37 (b).30
This court has upheld sanctions in instances where a party has violated orders, including discovery scheduling orders, other than those pursuаnt to OCGA§ 9-11-37 (a) or § 9-11-26 (c).
(b) Carrier contends that it should not be required to pay attorney fees because it opposed the deposition on the basis that Darnis had no relevant personal knowledge of the case. OCGA § 9-11-37 (b) (2) provides that in lieu of or in addition to other sanctions permitted by the statute, “the court shall require the party failing to obey the order ... to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.”
(c) Finally, Carrier contends that the amount awarded as attorney fees and expenses, $19,247.86, is excessive, because sanctions should be calculated only from January 3,2011, the date Darnis failed to aрpear for his last scheduled deposition, rather than the first noticed deposition. We disagree.
The measure of recovery under OCGA § 9-11-37 (b) is “reasonable expenses, including attorney’s fees, caused by the failure” to obey court orders. In support of its argument, Carrier cites Cohen v. Nudelman,
Case No. A12A0482
6. Rollins appeals from the judgment entered on the jury’s verdict in favor of Carrier on its counterclaim for unpaid invoices, urging in two related enumerations of error that the trial court erred in granting Carrier prejudgment interest at 18 percent pursuant to OCGA § 7-4-16. Finding error, we reverse.
OCGA §7-4-16 provides that “[t]he owner of a commercial account may charge interest on that portion of a commercial account which has been due and payable for 30 days or more at a rate not in excess of IV2 percent per month [18 percent per annum].” However, “[i]t is the law of this State that a recovery of pre-judgment interest pursuant to OCGA § 7-4-16 requires a pre-trial invocation of the applicability of that provision.”
Carrier posits that OCGA § 7-4-16 was invoked because Rollins’s portion of the pretrial order mentions the statute. Carrier also argues that it invoked the statute because
In the instant case, Rollins’s mention of OCGA § 7-4-16 in the pretrial order appears under the heading “[s]pecial authorities relied upon by [Rollins] relating to peculiar evidentiary or other legal questions.” Carriеr’s corresponding section in the pretrial order makes no mention of the statute. Carrier’s damages section in the pretrial order requests only unspecified “prejudgment and postjudgment interest,” listing no specific interest rate. Further, Carrier’s counterclaim and two amended counterclaims all ask only for “interest at the legal rate.” OCGA § 7-4-2 (a) (1) (A) provides that “[t]he legal rate of interest shall be 7 percent per annum” unless otherwise established by contract. Carrier’s invoices do not specify a rate of interest accruing, as OCGA § 7-4-16 contemplates, when accounts are 30 days or more past due.
We have consistently held that “the request must specify the interest rate sought.”
Further, where the rate of interest sought is ambiguous, an award of the maximum rate is not authorized. In Spears,
“interest as allowed by Georgia law for commercial accounts” as part of its prayer for relief. By doing so, [the plaintiff] invoked OCGA § 7-4-16, but it did not specify the exact rate ... it was not clear whether [the plaintiff] was seeking 1.5 percent interest per month, the maximum allowable rate for commercial accounts, or some lesser rate which also would have been proper under the statute. In the absence of such specificity, the trial court erred in entering judgment against [the defendant] for the maximum rate.42
We find similar ambiguity here. Carrier’s invoices do not specify OCGA§ 7-4-16; do not define the interest sought as that applicable to commercial accounts; and do not list a specific rate of interest. This ambiguity is further exacerbated by Carrier’s specific requests for interest at the “legal rate” (7 percent) in its counterclaims. “If the rate allowed under OCGA § 7-4-16 is sought before trial, the trial court is authorized to grant prejudgment interest at that rate.”
As we have not granted a retrial based on Carrier’s appeal, we need not address Rollins’s other enumeration of error.
7. We reverse and remand in Case No. A12A0482 to the trial court for proceedings not inconsistent with this opinion.
Notes
(Punctuation and footnote omitted.) Defusco v. Free,
Horan v. Pirkle,
Rollins argues that this letter agreement, which contains no period of limitation, means the HVAC contract’s one-year period оf limitation does not apply, and instead is governed by OCGA § 9-3-24’s six-year statutory period of limitation. However, this letter predates the March 11, 2005, HVAC contract. “[W]here parties enter into a final contract^] all prior negotiations, understandings, and agreements on the same subject are merged into the final contract, and are accordingly extinguished.” (Citations and punctuation omitted.) Wallace v. Bock,
(Citation omitted.) Clarendon Nat. Ins. Co. v. Johnson,
(Citation omitted.) Id.
F. A. F. Motor Cars v. Childers,
While OCGA § 9-3-24 provides that “[a]ll actions upon simple contracts in writing shall be brought within six years after the same become due and payable,” it is well settled that limitation clauses reducing the time permitted to assert claims from six years to one year are enforceable. Southern Telecom v. Level 3 Communications,
(Emphasis supplied.)
(Emphasis supplied.)
See Golden Peanut Co. v. Bass,
(Citation and punctuation omitted.) Wallace, supra at 747 (2).
(Citations omitted.) Perkins v. M&M Office Holdings,
(Citation, punctuation and footnote omitted.) Horton v. Hendrix,
(Footnote omitted; emphasis in original.) Johnson v. Leibel,
(Emphasis supplied.)
See Mull v. Mickey’s Lumber &c.,
Alternative Health Care Systems v. McCown,
(Citations omitted.) Id.
Bettis v. Comfort Control,
(Emphasis supplied.)
(Citation and punctuation omitted.) Harper v. Samples,
See Golden Peanut Co., supra at 227 (1).
See Buford-Clairmont Co. v. RadioShack Corp.,
(Punctuation and footnote omitted.) Mott v. Southeast Permanente Med. Group,
(Emphasis supplied.)
Wills v. McAuley,
Joel v. Duet Holdings,
Id. at 706.
(Citation and punctuation omitted; emphasis supplied.) Id. at 706-707.
See Gropper v. STO Corp.,
Ga. Cash America v. Strong,
(Emphasis supplied.)
(Citation and punctuation omitted.) City of Atlanta v. Paulk,
2
Id. at 523 (5).
Because we conclude that the sanctions at issue were within the discretion of the trial court under OCGA § 9-11-37 (b), we neеd not address Carrier’s argument as to OCGA § 9-11-37 (d).
(Citations omitted; emphasis supplied.) Gold Kist Peanuts v. Alberson,
(Citations omitted.) Spears v. Allied Engineering Assocs.,
Scovill Fasteners v. Northern Metals,
Supra.
(Citation omitted; emphasis supplied.) Id. at 879 (2).
(Citations omitted; emphasis supplied.) Id. at 878 (2).
Although attorneys for both parties stipulated that the trial court would decide the applicable rate of interest on any amounts awarded to Carrier, we have held that “notwithstanding the seeming breadth of the stipulation, it cannot be construed in such a manner as to fix or change the law.” (Citations and punctuation omitted.) GoldKist Peanuts, supra at 256 (2).