Leisure Lines, Inc. v. DeKalb County

Beasley, Presiding Judge.

Leisure Lines, Inc. (LLI), a distributor and installer of playground equipment, filed suit against DeKalb County for compensation due it as a subcontractor on a county park improvement project. The issue was the county’s compliance with the statutory scheme imposing a duty on it to require a payment bond on a public works contract. See OCGA §§ 36-82-101; 36-82-102; 13-10-1.

The trial court dismissed the suit for failure to state a claim after concluding that the county was in full compliance with the statutory requirements for bonding. We reversed the dismissal, relying upon this court’s holding in J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 124 (1) (430 SE2d 13) (1993). Leisure Lines, Inc. v. DeKalb County, 210 Ga. App. XXXII (1993).

This case is again before this court pursuant to the Supreme Court’s remand, after the grant of certiorari, for reconsideration in light of the Supreme Court’s reversal of this court’s opinion in J & A Pipeline. DeKalb County v. J & A Pipeline Co., 263 Ga. 645 (437 SE2d 327) (1993). 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 material-men’s direct action remedy will be defeated notwithstanding the subsequent inefficacy of the bond or the subsequent discovery of the falsity of the affidavit.” Id. at 649 (2).

In this case, as in J & A Pipeline, the bond was taken “in the manner and form required” by OCGA § 36-82-102. Id. at 649 (2). Therefore, subcontractor LLI’s direct action against the county was defeated. No question of OCGA § 13-10-1 (f) applies in this case because the statute “was not in effect at the times relevant.” Id. at 650 (3).

Accordingly, the prior judgment of this court is vacated, and pursuant to the judgment of the Supreme Court, expressed in its holdings in J & A Pipeline and applied to this case, the judgment of the trial court is affirmed.

Decided June 3, 1994. Steven H. Ballard, for appellant. Albert S. Johnson, Patrick F. Henry, Jr., Robert H. Walling, Bernard Knight, for appellee.

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.