*1 412 accepted Company, Ti- Publishing R. Don Kalle Press ‘7s/ individually.” granting strike, the motion to V. P. and
tle Exec. /s/ face, con- on was between Fort when contract “shows trial court that the held My- agreement strued as a matter of Ray Corporation Don defendant Motels ers News-Press individually obligated on said contract.” Kalle not R. was oral motion to strike, for as a motion to strike was couched summary judgment, judgment pleadings, and was con on the or presumably (f). A OCGA 9-11-12 strike, under strued as a motion to complaint allegation be has been held to motion to strike an (Jillson analogous v. state claim for failure to to a motion to dismiss 476)). App. Barton, A motion to dismiss Ga. 769 SE2d 139 granted be unless under for failure to state a claim is not to pleadings, sey (Mas plaintiffs light in a most favorable to the construed 830)), App. plaintiff Perkerson, can es v. Ga. that would entitle 895 129 it to relief the defen tablish no set of facts Properties, 242 Ga. v. 462 Atlanta Assoc. Westminster dant. Savings 252); Assn., 148 Ga. v. Atlanta Moultrie Federal 77); County, App. App. v. Monroe Harrell 489). 20); App. Eason, Christner v. accepted disregard We fact Kalle ad- are unable individually,” president vertising executive vice “and contract as give meaning possible can to those words other than relates no liability. may jury of the case It that under circumstances liability or trial Kalle, can that no was intended attach determine (or proper mo- function of a motion to strike but this is not a dismiss) pleadings, including contract, are con- tion where plaintiff resolved its favor. strued favor of the and all doubts Goolsby Regents System, v. Univ. 165). count, erred. trial court part. Carley part reversed in affirmed Beasley, JJ., concur. Polonsky, appellant. K.
Louis Wayne Watkins, Bond,
Kirk R. W. COMPANY, et INC. al. 69086. PRESTON CARROLL ASSURANCE COMPANY. MORRISON (326 SE2d Presiding Judge. Deen, Company, appellants, Con- Inc. and CFW Preston Carroll Inc., joint formed a venture and Company, struction contracted Clayton County Authority for the construction a waste Water May water effluent field. On entered into sev- Builders, (Simplicity), part eral subcontracts with Inc. appellee, of the work under the water contract. The Morri- Company, compensated surety, son issued Assurance *2 sake, payment $171,814 and Simplicity’s the amounts of bonds $79,699. and 25, 1980, appellants
On the the terminated various sub- to alleged multiple contracts due the latter’s breaches Subsequently, appellants requested ap- the contract. the the that pellee performance payment honor the and Sim- completing bonds plicity’s paying work and the bills outstanding for materials. On 28, 1980, March the appellants demanded the first initi- against Simplicity; ate suit appellants never heeded the demand. 4, 1981, unpaid supplier March of Simplicity filed suit against the appellants, Simplicity, respective their bonding and com- panies. appellants against turn asserted a ap- cross-claim pellee for its refusal the performance payment to honor bonds. eventually The appellee for summary judgment moved on the cross- claim, on the basis that discharged from its obligations under payment bonds because of the failure to file suit against Simplicity within surety’s three months of the mand, and appeal this followed from trial court’s of that motion. Held: 103-205)
OCGA 10-7-24 (formerly Ann. provides Code § § “[a]ny surety, guarantor, endorser, or any time after the debt on due, he is liable becomes may give writing notice to the cred- itor ... proceed to .; and, to principal. collect the debt from the . if the creditor or holder refuses or fails commence an action space (the of three months after such principal notice within being jurisdiction state), endorser, guarantor, surety this giving notice, subsequent as cosureties, well as all endorsers and all shall be discharged.” On April Court held that applies section to compensated as well as uncompensated sureties. Balboa Ins. Co. v. A. J. Kellos Constr.
In the instant it is undisputed appellants failed to proceed (which against Simplicity was within the jurisdiction) state’s within three months of the notice given by the appellee March more, 1980. Under authority, the above without the appellee would be entitled to summary judgment as matter a of law.
However,
appears
that,
it also
in failing
uncontroverted
to com-
any
mence
action
the principal following
the notice given
surety,
Houston
relied
Gen. Ins. Co. v. Brock
which the
compensated
apply to
sureties.
Title 103 does not
Court held that
surety
compensated
pointed
“the
law for
That
out that
Title
We note that
common law this state.
must
found
surety
princi-
largely
law of
of the common
a codification
many
surety
pal,
or similar
law are the same
of the rules of
uncompensated
compensated
Thus we will look
sureties.
persuasive
thereunder,
and the cases decided
compensated
governing
Whether
sureties.
as to the law
applied to
differ from the law to be
rules
case-by-case
basis.” Id. at
sureties must be decided on
discharge provision of
No
to Balboa held that the
463-464.
case
(now
10-7-24) applied
§
Code Ann. 103-205
OCGA
sureties,
law in this state
the enactment
common
compelled
neither
creditor
sue
such
request
discharged
principal
nor
at the
of the
Brown,
Howard v.
such an action.
the creditor’s failure to commence
(3) (54
(1847);
Clarkson,
SE
Thomas
expressly
Houston
Balboa court did not
*3
supra,
Co.,
denied
Gen. Ins. Co. v. Brock Constr.
cannot be
contrary.
holdings
of
therefore in-
are
crux
the instant case
two
particular dispute
determining
governs
volves
which rule
between
appellee.
and the
overruling
generally retroactive,
of a
is
but retroac-
decision
may
overruling
application
be de-
tive
of a decision
justifiably
unjust
re-
clined where
results would accrue to those who
45)
upon
Walker,
lied
rule. Walker
(1981).
Barron,
Co. N. Y. v.
See also Mutual
Ins.
Life
of
334) (1943),
Co.,
454,
Cas.
Flewellen v. Atlanta
463-464
pertinent
At
in this
Rehearing denied 1, Henry Angel, E. Turnipseed, appellants. William Jr., Slagle, Thompson, DeWitte B. Jefferson Judge, dissenting. Sognier, respectfully
I majority dissent. The determined that Su in preme Co., Court’s decision Balboa Ins. Co. v. A. J. Kellos Constr. 599) (1981) implicitly Ga. 393 overruled its earlier de in v. Brock cision Houston Co. Ga. 460 by retroactively, Balboa declining apply the indi rect effect of the majority’s opinion is to hold Court principle Balboa established a new of law. See Flewellen v. Atlanta 673) 709, Cas. 250 Ga. I disagree.
I nothing contrary find the decisions Balboa and Moreover, Houston. I find that the Balboa decision did not establish law, a new principle clearly but by was instead foreshadowed Houston that warning rules established “[w]hether seq.] now OCGA 10-7-1 et differ [former from the applied law to be must be decided on a case-by-case (Emphasis basis.” Id. supplied.) at agree
Therefore
cannot
majority’s
apply
with the
refusal to
Bal-
Flewellen,
retroactively.
boa
supra,
adopted
the test
Huson,
Chevron Oil Co. v.
harsh in paid one who to take steps additional collecting before from that paid, benefits which one has holding nevertheless the in Balboa is the law and we are constrained it. I follow would affirm the trial court’s appellee’s motion for summary judgment.
I am authorized to state that Presiding Judge Birdsong, Judge Carley Judge Beasley join this dissent.