Mayer Electric Supply Co. v. DeKalb County

Smith, Judge.

Mayer Electric Supply Company, Inc., a materialman on a public works project, brought suit against DeKalb County when it was not paid and the general contractor’s surety proved insolvent. The trial court granted the county’s motion for judgment on the pleadings, and Mayer appealed. We reversed, relying in part on this court’s holding in J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 124 (1) (430 SE2d 13) (1993), that the schedule of real estate accompanying the surety’s affidavit was so facially irregular that the county was required to have inquired into the surety’s solvency, and its failure to do so rendered it liable to the materialman upon the surety’s insolvency.

The case is now before the court pursuant to the Supreme Court’s remand, after granting certiorari, for reconsideration in light of the Supreme Court’s reversal of this court’s opinion in DeKalb County v. J & A Pipeline Co., 263 Ga. 645 (437 SE2d 327) (1993).

In J & A Pipeline, the Supreme Court held that if “the county takes a payment bond from the general contractor or an affidavit from the surety which does, on its face, comport with the statutory requirements [as to “manner” and “form”], the subcontractors’ and materialmen’s direct action remedy will be defeated notwithstanding the subsequent inefficacy of the bond or the subsequent discovery of the falsity of the affidavit.” Since in this case, as in J & A Pipeline, the affidavit required under OCGA § 36-82-102 was taken “in the manner and form required” by the Code section, the materialman’s direct action remedy was defeated.

Decided January 20, 1994. Bryant, Davis & Cowden, Larry S. Bryant, Cynthia L. Weese, for appellant. Patrick F. Henry, Jr., Johnson & Montgomery, Albert S. Johnson, for appellee.

Accordingly, upon reconsideration in light of the Supreme Court’s opinion in J & A Pipeline, the prior judgment of this court in this case is vacated, and pursuant to the judgment of the Supreme Court, as expressed in the holding in J & A Pipeline, as applied to this case, the judgment of the trial court is affirmed.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.