The appellee, Norman J. Bass Construction Company (hereinafter "Bass Construction"), brought this action against the appellant, the City of Savannah, to recover payment due it as a subcontractor on a city public works project. Bass Construction sought to recover under OCGA 36-82-102
, on the ground that the City failed to obtain a bond "in the manner and form required" by 36-82-102
The City moved to dismiss Bass Construction's action, contending that Bass Construction was a nonresident contractor; that it had not registered with the State Revenue Commissioner as required by OCGA 48-13-31
, nor executed and filed with the Revenue Commissioner the bond required by 48-13-32
; and that therefore Bass Construction was not "entitled to maintain an action to recover payment for performance on the contract in the courts of this state." OCGA 48-13-37
In response to the motion, Bass Construction contended that 48-13-37
only prohibited actions to recover on a contract and was thus inapplicable to this action under 36-82-102
to recover for the City's failure to obtain a proper bond, and that it was not a nonresident contractor.
The trial court denied the City's motion to dismiss, ruling that Bass Construction's action was not an action to recover on a contract and was not barred by 48-13-37
. The City moved the court to reconsider the denial. The trial court denied the motion to reconsider. Within ten days, the trial court certified that order for immediate review, and within ten days of that certification, the City filed an application for interlocutory appeal in the Court of Appeals. OCGA 5-6-34
(b). The Court of Appeals dismissed the City's application for interlocutory appeal on the ground that the filing of a motion for reconsideration did not extend the time for obtaining a certificate of immediate review of the denial of the motion to dismiss.
We granted certiorari and the City's application for interlocutory appeal to consider two issues: whether an order denying a motion for reconsideration can be the subject of an application for appeal under 5-6-34
(b); and whether a nonresident contractor who does not register or obtain a bond can seek recovery for a municipality's failure to obtain a bond.
1. As for the procedural issue, we hold that an order denying a motion for reconsideration is an interlocutory order that, just as any other interlocutory order, can be the subject of an application for interlocutory appeal if a certificate of immediate review is obtained from the trial court. Rollins Communications v. Henderson, Few &c., 140 Ga. App. 504 (1) (231 SE2d 412) (1976)
. This rule, first established in Rollins, has been followed by the Court of Appeals in a number of cases. See Aetna Cas. &c. Co. v. Cantrell, 197 Ga. App. 672 (1) (399 SE2d 237) (1990)
; Hightower v. Krystal Co., 204 Ga. App. 823
, 824 (420 SE2d 762
) (1992); Clos v. Pugia, 204 Ga. App. 843 (420 SE2d 774) (1992)
. Any dicta to the contrary in Brooks v. Carson, 194 Ga. App. 365
, 366 (1) (390 SE2d 859
) (1990), is overruled. 3
2. Next, we address whether Bass Construction's action was subject to dismissal under 48-13-37
. Contrary to Bass Construction's contention, 48-13-37
does not preclude only a contract action by the nonresident contractor to recover payment for performance under the contract. Instead, 48-13-37
precludes any action in which the relief sought is the recovery of payment for performance under the contract. See Clover Cable v. Heywood, 260 Ga. 341 (392 SE2d 855) (1990)
. In Clover Cable, the subcontractor brought not only a contract claim to recover for performance under its contract but also a tort claim. Id. at 342. We held that the subcontractor's tort claims were barred by 48-13-37
because "in asserting [these] claims, [the subcontractor] seeks 'to recover payment for performance on the contract,' within the meaning of OCGA 48-13-37
." Clover Cable at 345 (8). By its action against the City under 36-82-102
, Bass Construction seeks to recover payment due it for work it has performed under its subcontract. The action thus "seeks to 'recover payment for performance on the contract' within the meaning of OCGA 48-13-37
." Clover Cable at 345. That Bass Construction bases the City's liability for the payment upon the City's alleged failure to obtain a proper bond is irrelevant for purposes of 48-13-37
For these reasons, we reverse the trial court's ruling that 48-13-37
did not apply to Bass Construction's action against the City. On remand, the trial court will be free to address Bass Construction's contention that it was not a nonresident contractor. See ADC Constr. Co. v. Hall, 191 Ga. App. 33 (381 SE2d 76) (1989)
McCorkle, Pedigo & Johnson, David H. Johnson, for appellee.