Resurgens Plaza South Associates v. Consolidated Electric Supply, Inc. , 215 Ga. App. 818 ( 1994 )

Smith, Judge.

This action for foreclosure of a materialman’s lien arose out of interior finish work performed in an office building owned by Resurgens Plaza South Associates (“Resurgens”). Summit Commercial Contractors, Inc., the general contractor employed by Resurgens, subcontracted with DCG Electrical Construction, Inc. (“DCG”) to perform electrical work on several projects in the building, including the “M.D.S. Tenant Buildout” at issue here. DCG in its turn ordered materials from Consolidated Electric Supply, Inc., d/b/a B & W Electric Supply (“Consolidated”) to perform the electrical work. When DCG failed to pay for the materials, Consolidated filed a lien against the real property on February 19, 1991, and later brought an action to foreclose on the lien. After a jury verdict in favor of Consolidated, Resurgens appealed in Case No. A94A1280. Consolidated cross-appealed in Case No. A94A1281.

1. In Case No. A94A1280, Resurgens contends the trial court erred in denying its motions for directed verdict and for judgment n.o.v.

“In determining whether the trial court erred by denying (appellant’s) motions for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict and judgment n.o.v. is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict.” (Citations and punctuation omitted.) Parks v. Howard, 197 Ga. App. 405, 407 (4) (398 SE2d 308) (1990); Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992). There were substantial conflicts in the evidence presented here.

The parties disputed whether the underlying lien was filed within three months after the final delivery of goods to the project, thus satisfying the requirements of OCGA § 44-14-361.1 (a). The key invoice at issue is defendant’s Exhibit 155, Consolidated invoice 108088, showing two items identified only by a product number of the manufacturer, Boyd.¹ A cross-referenced manufacturer’s invoice 009204 from Boyd identifies them further as “Prometheus” model wall brackets in polished brass. The Boyd invoice shows the order was placed on October 10, 1990, and the wall brackets were delivered on December 10, 1990.

Resurgens in essence contends .that the delivery made on December 10, 1990, was not part of the underlying contract, but a separate agreement between DCG and a tenant, thus providing no support for the claim of lien and showing that Consolidated failed properly to allocate charges between the two separate agreements. It bases these contentions on defendant’s exhibit 158, identified as a statement from the electrical subcontractor, DCG, and allegedly referring to the same two wall lighting fixtures. The DCG statement reads only: “MDS/ Furnished and installed (2) extra wall sconces,” with amounts charged for material and labor. The wall sconces are not identified by product number or name, and no date of order or delivery is stated.

According to Lisa Shirley, the property manager for Resurgens, the DCG statement was issued pursuant to a request by the owner’s construction supervisor, Jerry Schaeffer, to DCG. Schaeffer did not testify. Shirley also opined that the DCG statement was based on a separate contract between the tenant and DCG, because the request was made by the tenant after the space was built out, sometime in November or December.²

A directed verdict was not proper based on the contention that the DCG statement was for the same items as Consolidated invoice 108088 and Boyd invoice 009204, and thus showed the existence of a separate contract, for several reasons. First, if the tenant’s request was not made until November or December, as Shirley testified, the October order memorialized in the Boyd and Consolidated invoices predates' the tenant’s request and therefore cannot reflect the same materials. Second, the DCG statement refers to “wall sconces” without identifying them by manufacturer or product number, while the Boyd invoice refers to “Prometheus wall brackets” with a particular product number. Finally, the DCG statement gives a unit price of $392.50 for each “wall sconce,” while the Consolidated invoice gives a unit price of $695 for each “Prometheus wall bracket.”

Given these unexplained inconsistencies, it cannot be said that Resurgens presented uncontradicted evidence that the delivery made on December 10, 1990 was part of a separate contract with the tenant. Contrary to the dissent’s contention, the issuance of a certificate of substantial completion, release of retainage, or other activity under the construction contract does not bar a claim of lien. See Sasser & Co. v. Griffin, 133 Ga. App. 83, 84-85 (1) (210 SE2d 34) (1974). The testimony and documents should have been, and were, weighed by a jury, and we should not disturb its findings on this issue.

2. In Case No. A94A1281, Consolidated contends the trial court erred in its charge to the jury on the issue of payment allocations to various accounts of the subcontractor, DCG. Consolidated contends the duty of a materialman to inquire as to the appropriate destination of a particular payment is limited to circumstances where the subcontractor fails to indicate the proper account for allocation. Therefore, it contends, the trial court erroneously failed to instruct the jury that Consolidated was only required to seek further information about the source of a particular payment if DCG failed to designate an account for allocation.

However, a review of the trial court’s instructions to the jury shows that it clearly stated the requirements that Consolidated credit all invoices according to the instructions of DCG when it made payments and that it contact DCG for directions as to how to apply a payment if no instructions came with the payment. This requirement was repeatedly mentioned in later portions of the instructions. While some details of the charge could have been more clearly worded, viewing the charge as a whole as we are required to do, Dept. of Transp. v. Lawrence, 212 Ga. App. 72, 73 (441 SE2d 81) (1994), we find no error.

3. In its final enumeration of error, Consolidated contends the form of the verdict was erroneous in that it allowed the jury to return a verdict in an amount less than the full amount sued for. However, no objection was made to the form of the verdict at trial; in fact, counsel for Consolidated apparently drafted the verdict form. Consolidated therefore waived its right to object on appeal. Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 289 (7) (431 SE2d 115) (1993).

Judgments affirmed.

Pope, C. J., Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn and Ruffin, JJ., concur. McMurray, P. J., dissents.

1 We need not consider the second invoice for goods delivered within the three-month period, because the first creates a disputed issue of fact for the jury.

2 We note that hearsay standing alone cannot support a verdict, even if unobjected to. See Finch v. Caldwell, 155 Ga. App. 813 (273 SE2d 216) (1980). No individual with direct personal knowledge, such as Schaeffer himself, testified to the existence of a separate contract as opposed to a change order.