Harbor Construction Company, Inc. entered into a “Teaming Agreement” with I. L. Fleming, Inc. to perform federal construction projects. Fleming did not pay one of its subcontractors $203,800, and the subcontractor obtained payment under a surety bond guaranteed by Harbor and its principals, R. C. Harbourne and Emma Harbourne collectively, “Harbor”. Harbor reimbursed the surety company and then sued Fleming, Inc. and two individual defendants, I. L. Fleming and Cheryl A. Fleming collectively, “Fleming” for repayment of the bond under the parties’ indemnity agreement, and for “interest, attorney fees, costs, and other damages as provided by law.”1 In a cryptic order drafted by Harbor, the trial court granted summary judgment to Harbor for $203,800, then provided that “the payments of Fleming are applied in toto to Count 1 as Fleming urged.” The court also awarded attorney fees of $20,405 and interest of $17,369, “plus $3.33 a day from June 2, 2009 until satisfied.” Fleming appeals, and for the reasons that follow, we reverse. On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Ford v. Bank of Am. Corp. , 277 Ga. App. 708 627 SE2d 376 2006. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id.
1. On page ten of its brief, Harbor now concedes that Fleming has repaid Harbor the principal sum of $203,800, a fact his attorney also “consented to” in the trial court, but only after the trial court issued its first order in November 2009 granting summary judgment to Harbor for $115,500.2 Until that concession, Harbor argued that, while Fleming had paid $203,800, of those payments only three checks totaling $88,300 listed R. C. Harbourne personally as a payee, and Mr. Harbourne was the party seeking relief in the complaint. Because Mr. Harbourne was the named plaintiff, he argued, any payments Fleming had made only to Harbor, Inc. or Emma Harbourne did not apply to this debt, and Fleming still owed him $115,500. In an affidavit, however, Fleming’s attorney asserts that all of Fleming’s payments were intended to apply to the bond repayment issue.
