THIRD DIVISION

MILLER, P. J.,

MCFADDEN and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

November 15, 2016

In the Court of Appeals of Georgia

A16A0722. DOUGLAS ASPHALT COMPANY v. MARTIN

MARIETTA AGGREGATES et al.

MCFADDEN, Judge.

Douglas Asphalt Company appeals the grant of summary judgment to Martin

Marietta Aggregates on Douglas Asphalt Company’s counterclaim for breach of

contract. It also appeals the trial court’s dismissal of its amended counterclaim. We

affirm the judgment to Martin Marietta Aggregates because Douglas Asphalt has

failed to point to evidence giving rise to a triable issue. We affirm the dismissal of the

amended counterclaim because Douglas Asphalt did not obtain leave of court before

filing it. 

1. Facts.
Martin Marietta Aggregates filed a suit on account against Douglas Asphalt

Company and Douglas Asphalt Paving, Inc. It alleged that Douglas AsphaltCompany

owed it $547,056 on an open account/line of credit under which Martin Marietta had

provided aggregate material to Douglas Asphalt Company on numerous occasions.

It further alleged that Douglas Asphalt Paving was the successor to Douglas Asphalt

Company and had assumed its debts. 

The defendants answered the complaint and Douglas Asphalt Company filed

a counterclaim, alleging that “pursuant to one or more agreements” between Douglas

Asphalt Company and Martin Marietta, Martin Marietta was required to provide

aggregate material within a specific schedule, but, on numerous occasions, it had

failed to do so. Douglas Asphalt Company did not specify the occasions on which

Martin Marietta allegedly failed to meet a specific schedule, but in the course of

litigation, it clarified that it sought damages for delays in regard to seven particular

projects that it identified as the Brantley County project, the Monroe County project,

the Crisp/Turner project, the Bacon/Ware project, the Appling project, the

Appling/Wayne project, and the Barco-Duval project. 

Martin Marietta moved for summary judgment on the counterclaim in June

2010. Among other arguments, Martin Marietta contended that it was entitled to

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summary judgment because the parties had not entered an enforceable agreement for

the sale of goods and that Douglas Asphalt Company never produced the contracts

that underlie its counterclaim. 

On November 28, 2012, more than three years after filing its answer and

counterclaim, Douglas Asphalt Company filed an amended counterclaim, seeking

relief on a theory of promissory estoppel. It alleged that it had relied to its detriment

on Martin Marietta’s promises to supply all rock on numerous Georgia Department

of Transportation contracts. 

Martin Marietta moved to dismiss the amended counterclaim as Douglas

Asphalt Company had not obtained leave of court before filing it. Douglas Asphalt

Company then moved for leave to file its amended counterclaim. 

In brief orders, the trial court granted Martin Marietta’s motion for summary

judgment on Douglas Asphalt Company’s counterclaim and its motion to dismissthe

amended counterclaim.After MartinMarietta dismissed its pending claims on the suit

on account, Douglas Asphalt Company filed this appeal. 

2. Summary judgment.

On summary judgment, Martin Marietta, which would not bear the burden of

proof at trial on Douglas Asphalt Company’s counterclaim, 

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need not affirmatively disprove [Douglas Asphalt Company’s] case;

instead, the burden on [Martin Marietta on summary judgment] 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 [Douglas Asphalt Company’s] case. If [Martin Marietta]

discharges this burden, [Douglas Asphalt Company as] the nonmoving

party cannot rest on its pleadings, but rather must point to specific

evidence giving rise to a triable issue.

BAC Home Loans Servicing, L.P. v. Wedereit, 297 Ga. 313, 316 (773 SE2d 711)

(2015) (citation omitted). 

Here, Douglas Asphalt Company alleged an unspecified number of breaches

of contractual terms relating to seven particular projects. It argues that two different

kinds of contracts between Martin Marietta and Douglas Asphalt Company governed

the seven projects. The first kind of contract was a job requirements contract, in

which Martin Marietta would submit a quotation to supply the materialsfor a specific

job. According to Douglas Asphalt Company, if Douglas Asphalt selected Martin

Marietta as a supplier, then Martin Marietta would prepare a sales order and

occasionally send an acknowledgment of order to Douglas Asphalt Company for its

files. Douglas Asphalt Company contends that the Crisp/Turner, Bacon/Ware,

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Appling, Appling/Wayne, and Barco-Duval projects at issue in this case were

governed by this type of job-specific agreement. 

The second kind of contract, according to Douglas Asphalt Company, was a

“plantrequirements agreement.”Underthis type of agreement, Martin Marietta would

provide Douglas Asphalt Company with a quotation for the price per ton of material

from its quarries for a certain period of time. According to Douglas Asphalt

Company, the BrantleyCounty and Monroe County projects at issue in this case were

governed by this type of agreement. 

Douglas Asphalt Company arguesthat both kinds of agreements are evidenced

by two types of documents: the quotation that Martin Marietta would provide to

Douglas Asphalt Company and either a sales order or acknowledgment of order that

Martin Marietta would supply once Douglas Asphalt Company had accepted the

quotation. It argued that under OCGA § 11-2-309, Martin Marietta had to deliver the

material within a reasonable time. It also argued that the parties’ course of conduct

established that a reasonable delivery time was one week.

To discharge its burden on summary judgment, Martin Marietta pointed out by

reference to the documents in the record that there was an absence of evidence of any

contracts relating to the seven projects at issue. Martin Marietta observed that in

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response to its request for documents evidencing the parties’ agreements, Douglas

Asphalt Company produced in discovery more than 100 quotations and sales orders.

But, Martin Marietta noted, Douglas Asphalt Company failed to link the quotations

and sales orders to any of the seven projects for which it sought damages. 

Undoubtedly the parties had a contractualrelationship stemming fromthe open

account/line of credit agreement upon which Martin Marietta initially filed suit. But

Douglas Asphalt Company’s breach of contract claim depends upon evidence that

Martin Marietta violated the contractual terms governing the seven projects at issue.

“[A]s the party alleging that a contract exists, [Douglas Asphalt Company would

have] the burden of proving its existence and its terms.” Swanstrom v. Wells Fargo

Bank, 325 Ga. App. 743, 744 (2) (754 SE2d 786) (2014) (citation omitted). Douglas

Asphalt Company alleged that Martin Marietta was required to provide aggregate

material within a specific schedule, but, on numerous occasions, it had failed to do

so. Yet it hasfailed to point to evidence of the contractual termsimposing the specific

schedules, or, in other words, the dates by which Martin Marietta had to deliver the

aggregate material for these seven projects. “A contract cannot be enforced if its

terms are incomplete, vague, indefinite[,] or uncertain.” Burns v. Dees, 252 Ga. App.

598, 601-602 (1) (a) (557 SE2d 32) (2001) (citation omitted). And although

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some details might be supplied under the doctrines of reasonable time

or reasonable requirements[,] . . . indefiniteness [is] not cured . . . where

the agreement relied upon was so vague, indefinite and uncertain as to

make it impossible for courtsto determine what, if anything, was agreed

upon, therefore rendering it impossible to determine whether there had

been performance.

Jackson v. Williams, 209 Ga. App. 640, 642-643 (1) (434 SE2d 98) (1993) (citations

and punctuation omitted) (finding construction agreement unenforceable where there

was no agreement regarding the material to use in construction, the precise location

of the construction, the time period for construction). Without pointing to evidence

of the contractually required delivery dates for the materials for the seven projects,

Douglas Asphalt Company cannot show that Martin Marietta failed to deliver the

materials in a timely manner; it has not pointed “to specific evidence giving rise to

a triable issue.” BAC Home Loans Servicing, 297 Ga. at 316. Douglas Asphalt

Company has failed to overcome Martin Marietta’s motion for summary judgment,

and the trial court did not err in granting the motion.

3. Amended counterclaim.

Douglas Asphalt Company has not shown that the trial court erred by

dismissing its amended counterclaim. OCGA § 9-11-13 (f) provides, “When a pleader

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fails to set up a counterclaim through oversight, inadvertence, or excusable neglect,

or when justice requires, he may by leave of court set up the counterclaim by

amendment.” Although Douglas Asphalt Company filed a motion seeking leave to

amend the counterclaim, it did not obtain such leave before filing the amended

counterclaim; the record contains no ruling on the motion. The trial court, therefore,

did not err in dismissing the amended counterclaim. Bellamy v. FDIC, 236 Ga. App.

747, 749-750 (b) (512 SE2d 671) (1999) (defendant’s new theories were additional

groundsfor compulsory counterclaim and, thus, were new counterclaims which were

barred without first obtaining leave of court); Cornelius v. Auto Analyst, 222 Ga.

App. 759, 762 (3) (476 SE2d 9) (1996) (OCGA § 9-11-13 (f) applies to both

compulsory and permissive counterclaims; although defendant sought leave to file

additional counterclaims, he did not obtain leave before filing them, so trial court

properly dismissed them); Conerly v. First Natl. Bank, 209 Ga. App. 601, 603-604

(3) (434 SE2d 143) (1993) (“The second counterclaimfiled here involved totally new

theories” based upon the same facts as the underlying complaint and first

counterclaim, so defendant had to obtain leave before filing it.).

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Judgment affirmed. McMillian, J., concurs and Miller, P. J., concurs in the

judgment only.

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