This dispute arose when APAC-Southeast, Inc., a provider of asphalt, assigned its subcontract with Bruce Albea Contracting, Inc. to C. W. Matthews Contracting Co., Inc. before the completion of a road project for the Georgia Department of Transportation. Although the subcontract specified that it could not be assigned, and although Matthews did not finish the project, APAC sued Albea and its sureties, Western Surety Company and Continental Casualty Company, for breach of contract and under a payment bond. The trial court granted APAC summary judgment against all three defendants for over $1.2 million plus interest. On appeal, defendants argue that the trial court erred when it granted APAC summary judgment because APAC’s breach by reason of assignment negates its claim against both Albea and its sureties. Defendants also assert that the trial court erred when it awarded pre-judgment interest. We agree that APAC has no breach of contract claim, but affirm because defendants are jointly and severally liable under the payment bond and because the issue of interest was not disputed in the trial court. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. . . . The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Citations omitted. Lau’s Corp. v. Haskins , 261 Ga. 491 405 SE2d 474 1991. So viewed, the record shows that Albea was the general contractor on a public works project to widen Highway 27 in Heard and Troup Counties when it entered into a subcontract dated February 2004 under which APAC would provide the project with asphalt paving. The subcontract provided that APAC could not assign the subcontract without Albea’s written consent. That same month, Albea and its sureties executed a $24 million payment bond providing that they were jointly and severally liable for “all persons doing work or furnishing skill, tools, machinery, or materials under or for the purpose of” the Highway 27 project.
In the course of the parties’ performance, prices for asphalt, fuel, and oil increased dramatically. Albea withheld payments in a dispute over the quantities of asphalt APAC had installed, and APAC threatened to escalate the payments due to it.
