Bollers v. Noir Enters. Inc.

The defendants' statement accompanying their summary judgment motion that they breached the contract when they failed to pay plaintiff and that there was a balance due was not an admission in judicio.

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Neil and Byrl Bollers appeal from the trial court’s orders granting partial summary judgment to Noir Enterprises, Inc. on its breach of contract claim arising out of the construction of the Bollers’ home. The Bollers also appeal the denial of their own motion for partial summary judgment. In addition, Countrywide Home Loans, Inc., an intervenor in the action, appeals the denial of its motion for partial summary judgment against Noir. “To prevail at summary judgment, the moving party has the burden to demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant’s favor, warrant judgment as a matter of law.” Footnote and punctuation omitted. Savu v. SunTrust Bk. , 293 Ga. App. 683 668 SE2d 276 2008. Here, the evidence showed that Noir and the Bollers entered into a “Construction Management Agreement” on June 26, 2004. Under that agreement, Noir agreed to “do and coordinate all aspects of preconstruction including but not limited to client relations, developing project budgets and scope of work, permit acquisitions, and working with subs for feasibility assessment, concept development, design and preconstruction management.” The management fee was set at $7,500, payable in three installments, and the parties “mutually agreed” that this fee “will be subtracted from the total construction management fee to construct the residential home.”

On November 12, 2004, the Bollers entered into a separate “Construction Agreement” with Noir to build their family home. This agreement contained a merger clause providing that it “supersedes any and all previous agreements, either oral or in writing, between the parties with respect to the subject matter of the agreement.” The Construction Agreement also specified that any changes or modifications to the agreement would be invalid unless in writing and signed by all of the parties. The contract price for the home was originally $777,000, but in April 2005, the parties signed an addendum reducing the price to $658,159.

Bollers v. Noir Enters. Inc.

The defendants' statement accompanying their summary judgment motion that they breached the contract when they failed to pay plaintiff and that there was a balance due was not an admission in judicio.

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