Williams Tile &Amp; Marble Company, Inc. v. Ra-Lin &Amp; Associates, Inc., 206 Ga. App. 750, 426 S.E.2d 598 (1992)
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Summary
Judgment affirmed in part and reversed in part. Pope and Johnson, JJ., concur.
Summary
Judgment affirmed in part and reversed in part. Pope and Johnson, JJ., concur.
Text
Shapiro, Fussell, Wedge & Smotherman, J. Ben Shapiro, Jr., Michael P. Davis, Daniel M. Jennings, for appellant.
Appellee-plaintiff was the general contractor for a building project and appellant-defendant was its terrazzo flooring subcontractor. Appellee brought suit, seeking to recover for appellant's alleged breach of its subcontract. The case was tried before a jury and a verdict in favor of appellee was returned. Appellant appeals from the judgment entered by the trial court on the jury's verdict.
1. Contending that the dispute with appellee was subject to arbitration, appellant moved to stay the judicial proceedings. The denial of this motion is enumerated as error.
Although the subcontract itself did not specifically provide for arbitration, appellant contends that, through incorporation by reference, arbitration became an applicable remedy thereunder. However, the general contract did not provide for arbitration as between appellee and the owner and, despite appellant's contentions to the contrary, it is clear that the architect's plans and specifications were incorporated into the subcontract by reference solely for the purpose of establishing the necessary materials for the terrazzo flooring and manner of their installation and not for the purpose of establishing arbitration as an available remedy under the subcontract. Where " 'plans and specifications are referred to in [a] contract for a particular specified purpose, such specifications can serve no other purpose than the one specified, and are foreign to the contract for all other purposes. In the absence of express provision in the contract, the specifications can neither restrict nor extend the scope of the contract to subjects other than those covered by the contract.' " Pittsburgh Plate Glass Co. v. American Sur. Co. of N. Y.,
It follows that the trial court correctly denied appellant's motion to stay the judicial proceedings. "A party is not required 'to submit to arbitration any dispute which he has not agreed to so submit. (Cits.)' [Cit.]" Pope v. Continental Augusta Woodlands,
Appellant's main contention is that the trial court erred in excluding evidence which would show that the deficiency in the terrazzo flooring was attributable to a breach of appellee's duty to prepare the surface before the terrazzo was applied. The contractual specifications did provide for the cleaning and preparation of the surface prior to installation of the terrazzo and, pursuant to the general contract, appellee certainly owed this duty to the owner. Under the clear and unambiguous terms of the subcontract, however, this duty was owed to appellee by appellant. Accordingly, the trial court certainly did not err in refusing to allow appellant to attempt to show that any improper preparation of the surface was a viable defense to appellant's liability for the deficiency in the terrazzo flooring.
A review of the record shows that appellant nevertheless was allowed to pursue its OCGA
3. Appellant enumerates as error the trial court's refusal to allow a witness, who was not a party to the general contract, to testify as to his own personal interpretation of the meaning of certain provisions thereof. Expert testimony may be admitted to explain technical terms in a contract. Daniel v. Maddox-Rucker Co.,
5. Appellant also moved for a directed verdict as to appellee's recovery of attorney's fees under OCGA
A review of the record shows the existence of a bona fide controversy as to whether the deficiency in the terrazzo flooring was attributable to appellant's breach of its subcontract or to reasons for which appellant would have no contractual liability to appellee. The existence of such a bona fide controversy would preclude a recovery of OCGA
App. 863, 868 (11) (
It follows that appellant's motion for a directed verdict as to its non-liability for OCGA
6. Appellant's remaining enumerations of error relate to evidentiary rulings by the trial court. Each enumeration has been considered and none has been found to warrant the grant of a new trial.
7. The judgment is affirmed in all respects except as to the award of attorney's fees.
Smith & Diment, Dana G. Diment, James J. Hopkins, for appellee.
1992
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