Stock Building Supply Inc. v. Platte River Ins. Co.

Genuine issues of material fact remained in a sub-contractor's suit against the surety for a construction project arising out of the general contractor's failure to complete the project and failure to fully pay the sub-contractor.

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These cases arise from a contract to build a shopping center “the Project”. Madison Retail-Suwanee, LLC, “Madison” the Project’s owner, hired Cannon/Estapa General Contractors, Inc. “Cannon” as the general contractor. Stock Building Supply “Stock” sub-contracted with Cannon to supply labor, materials, and services for the Project. Cannon did not complete the Project, and at the time Cannon ceased working, Madison had paid Cannon less than the full contract price. Cannon also failed to pay Stock the full amount it owed Stock under the sub-contract. Consequently, in 2007 Stock filed a timely lien against the Project and perfected it by obtaining a judgment against Cannon for the amount due under its sub-contract with Stock. Platte River Insurance Company “Platte”, the surety for the Project, issued a bond to discharge the lien. Stock then filed an action against Platte to collect the judgment in the amount of $93,865.27.

Platte answered the complaint, raising numerous affirmative defenses, including that Stock was estopped from enforcing the lien and that Platte was not liable under the lien based on a full payment defense.1 Platte also asserted a counterclaim for damages against Stock. Both parties moved for summary judgment. The trial court a denied Platte’s motion for summary judgment on judicial estoppel grounds, and b found there were genuine issues of material fact regarding the lien amount and Platte’s full payment defense. This Court granted interlocutory review, and this appeal and cross-appeal followed. In case number A15A2301, Stock argues that it was entitled to recover all of its costs under the lien, including overhead, profit, and insurance costs. Stock also argues that Platte failed to establish its full payment defense. In its cross-appeal, case number A15A2302, Platte argues that Stock is judicially estopped from enforcing the lien because it failed to include the lien as an asset during its bankruptcy proceeding. For the reasons set forth below, we affirm the trial court’s orders in both appeals.

Stock Building Supply Inc. v. Platte River Ins. Co.

Genuine issues of material fact remained in a sub-contractor's suit against the surety for a construction project arising out of the general contractor's failure to complete the project and failure to fully pay the sub-contractor.

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