MCDONOUGH CONSTRUCTION COMPANY et al. v. MCLENDON ELECTRIC COMPANY.
33606
Supreme Court of Georgia
NOVEMBER 7, 1978.
242 Ga. 510 | 250 S.E.2d 424
HILL, Justice.
This case involves a single procedural issue: the proper construction of
That subcontract contained a clause which the parties agree (for purpose of argument only) establishes as a condition precedent to payment by the general contractor to the subcontractor “written acceptance of [the work] by the Architect and Owner, or their authorized representatives, and full payment therefor by the Owner.” When the owner refused to accept the electrical work or to fully pay the general contractor, the subcontractor filed suit against the general contractor and the owner.1 The subcontractor sought a general judgment for the amount due on the contract from both defendants and a lien on the property.
The subcontractor alleged in its complaint that it had fully performed the subcontract and that all conditions precedent had been performed or had occurred. The general contractor denied this allegation without elaboration. At trial, after the subcontractor rested its case, the defendants moved to dismiss on the basis that the subcontractor had failed to prove compliance with conditions precedent. The motion to dismiss was denied on several grounds. Thereafter the trial court rendered judgment for the subcontractor against the general contractor, and for the owner against the subcontractor. Following
On certiorari the general contractor and the owner argue that the Court of Appeals erred in holding a general denial of allegations of performance of conditions precedent to be an admission. The owner also argues, correctly, that in the absence of a judgment against the general contractor, a lien cannot be foreclosed on the owner‘s property.
In construing this provision, the Court of Appeals followed three federal decisions that stand for the principle that failure to specifically deny allegations of compliance with conditions precedent contrary to
The purpose of modern pleading is to facilitate determination of the truth; construing a denial as an admission does not comport with this goal. See Cochran v. McCollum, supra; Bryant v. Bryant, 236 Ga. 265 (223 SE2d 662) (1976). Our CPA is patterned after the Federal Rules. In Conley v. Gibson, 355 U. S. 41, 48 (78 SC 99, 2 LE2d 80) (1957), the United States Supreme Court stated “The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of a pleading is to facilitate a proper decision on the merits.”
In neither federal nor Georgia practice is Rule 9 (
Supporting this construction is the fact that under the Civil Practice Act a complainant can plead a claim for breach of contract without alleging performance or occurrence of conditions precedent. Management Search, Inc. v. Kinard, 231 Ga. 26 (199 SE2d 899) (1973); Phoenix Ins. Co. v. Aetna Cas. &c. Co., 120 Ga. App. 122 (6) (169 SE2d 645) (1969). In such a case, in order to prevail at trial the complainant would be required to prove performance or occurrence of conditions precedent. See Management Search, Inc. v. Kinard, supra. Where a complainant alleges generally that all conditions precedent have been performed or have occurred and the defendant denies that allegation only generally and the complainant fails to insist upon the right to a specific and particular denial of complainant‘s general allegation, the general allegation stands denied by the general denial and the requirement of proof of performance of conditions precedent remains in effect just as it would if there had been no allegation in the complaint as to conditions precedent. It follows that the interpretation of Rule 9 (c), FRCP, in the three federal decisions relied upon by the Court of Appeals is not a rule of necessity and we find that interpretation to be contrary to the intent of the Civil Practice Act.
“Rule 15 is one of the most important of the rules that deal with pleadings. It re-emphasizes and assists in attaining the objective of the rules on pleadings: that pleadings are not an end in themselves, but are only a means to the proper presentation of a case; that at all times they are to assist, not deter, the disposition of litigation on the merits.” 3 Moore‘s Federal Practice § 15.02[1], p. 15-13. “The first part of Rule 15(b) provides that if issues are tried with the express or implied consent of the parties, ‘they shall be treated in all respects as if they had been raised in the pleadings.‘... Rule 15 (b), of course, is applicable to defenses as well as to claims, and to the extent to which it applies, Rule 15 (b) operates as an exception to the rule that defenses not pleaded are waived. The fact that a defense, even an affirmative defense, has not been formally pleaded is immaterial if the issue was tried by express or implied consent... [T]he lack of an amendment does not affect the judgment in any way. In effect, therefore, the parties may by express consent, or by the introduction of evidence without objection, amend the pleadings at will... Implied consent usually is found where one party raises an issue material to the other party‘s case, or where evidence is introduced without objection... It should be noted that Rule 15 (b) is not permissive in terms: it provides that issues tried by express or implied consent shall be treated as if raised by the pleadings.” 3 Moore‘s Federal Practice § 15.13[2], pp. 15-157, 15-165, 15-169, 15-170, 15-174, 15-175, 15-177. See also 6 Wright & Miller, Federal Practice and
The liberal rules of notice pleading found in the CPA are to be applied to defendants as well as plaintiffs. Davis v. Metzger, 119 Ga. App. 750 (168 SE2d 866) (1969). To hold otherwise would be to speak with a forked tongue. This is not to say that a complainant or defendant cannot demand that the opposing party comply with special provisions of the CPA requiring specificity. But the demand must be timely. The important thing to remember is that under the CPA a party is to be given notice and the opportunity to amend defective pleadings where such notice will facilitate decision on the merits. The CPA does not penalize a party irrevocably for one misstep in pleading.
The court wishes to note that the Rule 15 (b) analysis, above, was authored by Justice Hall.
For the foregoing reasons, the judgment of the Court of Appeals is reversed and this case is remanded to that court for further proceedings not inconsistent with this opinion. Upon remand the subcontractor shall be permitted to renew its argument that the contractual provision here in issue is not a binding condition precedent.
Judgment reversed. All the Justices concur, except Bowles and Marshall, JJ., who dissent.
Jones, Bird & Howell, Arthur Howell, III, Slutzky, Wolfe & Bailey, Stanley K. Slutzky, III, Danny C. Bailey, for appellants.
Stokes & Shapiro, J. Ben Shapiro, Jr., David R. Hendrick, Sally A. Blackmun, for appellee.
BOWLES, Justice, dissenting.
I cannot agree with the majority opinion in this case. I feel that the result will add to the onerous burden of pleadings which was intended to be minimized by the adoption of the Civil Practice Act.
Because the Act is patterned after the federal rules, and this particular section duplicates the federal rule, federal decisions construing this provision should be given great weight in the interpretation of the Georgia Act. As the Court of Appeals said in Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442) (1962), “The Summary Judgment Act of 1959 is substantially identical with Rule 56 of the Federal Rules of Practice and Procedure, 28 U.S.C.A. Rule 56. Therefore, it is appropriate that we resort to ‘Federal Cases’ as to its construction.” See also E. Freeman Leverett, Comments on the Georgia Civil Practice Act of 1966, 3 Ga. State B. J., 295 (1967). The federal cases, including those cited in the majority opinion, hold that where the plaintiff has generally pleaded that all conditions precedent had been met, the defendant cannot generally deny that allegation. If he does so, he will be deemed to have admitted the allegation as being true. 5 Wright & Miller, Federal Practice and Procedure: Civil § 1304, p. 432 (1969); Ginsburg v. Ins. Co. of North America, 427 F2d 1318 (6th Cir. 1970); Lumbermens Mutual Insurance Co. v. Bowman, 313 F2d 381, 387 (10th Cir. 1963); Weir v. United States, 310 F2d 149, 155-56 (8th Cir. 1962). State courts with similar rules which have followed the federal rule include Clary v. Alexander County Bd. of Ed., 286 N. C. 525 (212 SE2d 160) (1975); Henschel v. Hawkeye-Security Ins. Co., 178 NW2d 409, 418 (S. Ct. Iowa 1970); Treasure State Industries v. Leigland, 151 Mont. 288 (443 P2d 22) (1969). Thus, under this procedure the issues are narrowed from the outset, as a portion of the burden of pleading specifically or affirmatively is placed upon the defendant. The burden of proof is not shifted but
This was the interpretation of the trial judge and of the Court of Appeals. Now the majority says that this is “contrary to the intent of the Civil Practice Act” and writes its own rule. I am not able to thus interpret the intent of the legislature. Indeed, the spirit and intent of good faith pleading required under
This result makes a simple rule complicated. The majority opinion readily admits that the claimant-plaintiff can require the defending party to comply with the rule but adds that he must make a motion in order to get him to do so. Why add the requirements of a
I respectfully dissent. I am authorized to state that Justice Marshall joins in this dissent.