Masonry Specialists of Georgia, Inc., appeals from the trial court’s grant of summary judgment in favor of United States Fidelity & Guaranty Company “USF&G” in this contract action. Masonry Specialists contends that material issues of fact remain for jury consideration, the controlling statute is unconstitutionally vague, and the trial court abused its discretion in refusing its request for a continuance. Finding no error, we affirm. To prevail on motion for summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact, and the undisputed facts warrant judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or by establishing from the record an absence of evidence to support the plaintiff’s claims. Footnotes omitted. Ceasar v. Shelton , 266 Ga. App. 271 596 SE2d 755 2004. Our review of the court’s judgment is de novo. Rubin v. Cello Corp. , 235 Ga. App. 250 510 SE2d 541 1998. So viewed, the record shows that, in January 2001, Masonry Specialists contracted with D & R Group “D & R” to provide masonry labor and materials as a subcontractor on a community center project D & R was building for the Gwinnett County Parks and Recreation Department. USF&G was the surety under payment and performance bonds issued in connection with the project; D & R was the principal on the bonds.1 D & R defaulted on the project in March 2001. Pursuant to its performance bond, USF&G hired another contractor to complete the project. Masonry Specialists did not work on the project after D & R’s default. Masonry Specialists filed a claim with USF&G under the payment bond for an outstanding balance of $26,682 on the masonry work it had performed for D & R. On November 19, 2001, USF&G denied Masonry Specialists’ claim on the basis that the cost of correcting the defects in the company’s masonry work exceeded the amount of the company’s claim.
The record shows that the community center was completed, occupied, accepted by the county, and formally dedicated by August 17, 2002. Fifteen months later, on November 26, 2003, Masonry Specialists filed suit against D & R for the outstanding balance of $26,682 under its subcontractor agreement or, in the alternative, under theories of implied contract, promissory estoppel, unjust enrichment, and bad faith breach of contract. The suit also asked for punitive damages and bad faith attorney fees. Masonry Specialists named USF&G as a co-defendant pursuant to the payment bond. USF&G answered and, in an amended response, raised the affirmative defense that the suit was filed outside the applicable statute of limitation period. Following a hearing on USF&G’s motion for summary judgment, the trial court found that the suit was time-barred and granted the motion, dismissing USF&G as a co-defendant. Masonry Specialists appeals from this ruling.
