American Honda Motor Co., Inc. v. Williams & Associates, Inc.
| Decision Date | 11 May 1993 |
| Docket Number | A93A0929,Nos. A93A0928,s. A93A0928 |
| Court | Georgia Court of Appeals |
| Parties | AMERICAN HONDA MOTOR COMPANY, INC. v. WILLIAMS & ASSOCIATES, INC. et al. WILLIAMS & ASSOCIATES, INC. et al. v. AMERICAN HONDA MOTOR CO., INC. |
Bowman S. Garrett, Jr., Atlanta, Thomas A. Soderberg, Decatur, for appellant.
Jones, Cork & Miller, H. Jerome Strickland, Thomas C. James III, Robert C. Norman, Jr., Macon, for appellees.
Case No. A93A0928 is an appeal by appellant/defendant American Honda Motor Company, Inc. (Honda) of the order of the superior court granting motion for partial summary judgment on Counts 4, 5, 6, 7 and 8 and certain portions of Count 3 of the amended counterclaim of Honda to appellees/plaintiffs, Williams & Associates, Inc. et al. (Williams). Honda also appeals Section 1 of the order of the superior court which denied Honda's motion for partial summary judgment on the issue of responsibility for soil testing. Case No. A93A0929 is a cross-appeal by appellee Williams of Section 1 of the order of the superior court which denied summary judgment to it on the issue of responsibility for soil testing.
Williams entered into a construction contract with Honda to perform certain construction of a Honda distribution and training center (project), including site preparation; Williams subcontracted the site preparation work to At-Less Construction Company. This contract did not include the laying of the concrete slab for the warehouse, which apparently was done by Suitt Construction Company pursuant to the terms of a separate contract. Honda contracted with Heery & Heery Architects and Engineers, Inc. (Heery) to provide design and construction management services for the project. Honda also contracted with Soil & Material Engineers, Inc. (S & ME) to provide geotechnical consulting and to perform certain soil tests on the project during design and construction thereof; S & ME agreed to perform tests necessary to determine whether soil on site was "suitable" or "satisfactory" in accordance with contract definitions. In April 1984, At-Less filed suit against Williams, Heery, and Honda apparently after the fill dirt that had been asserted as being satisfactory under the contract could not be dried for timely use on the project. Williams filed cross-claims against Honda and Heery relating to problems encountered by Williams and At-Less as to surcharge soil materials. (Surcharge soil is placed temporarily on fill dirt to aid soil compacting.) When this litigation was initiated the project was not complete and Williams continued to work thereon for approximately another year. The project design required excavation of large quantities of soil from one area and extensive structural fill of other areas on which buildings were to be erected. The contract specified that only satisfactory fill was to be used and it established classification standards for determining whether soil was deemed satisfactory. The contract required certain tests to be performed on any soil which was proposed to be used as structural fill; during the course of discovery it was learned that such tests had not been performed as required. There is no dispute that S & ME was the entity which was to perform the tests on the fill material; however, Honda contends that a substantial dispute exists as to whose responsibility it was to initiate the testing procedure and who had ultimate responsibility to see that the tests had been carried out. Honda claims Williams had this and other responsibilities; Williams contends it was the responsibility of Heery and/or S & ME to determine what soil was to be tested and when, and that it had no contractual obligation to initiate such testing. This dispute led to the filing of cross-motions by the parties for partial summary judgment on the issue of responsibility for soil testing. The trial court denied both motions. Held:
1. Appellant Honda's first, third, fourth, fifth, and sixth enumerations violate OCGA § 5-6-40, which pertinently provides that each enumeration of error "shall set out separately each error relied upon." When such a violation occurs, this court may elect to review any or none of the errors which were asserted in a single enumeration. See, e.g., Parsons v. Chatham County Bd. of Commrs., 204 Ga.App. 130, 132(3b), 418 S.E.2d 459; Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga.App. 839, 841(b), 418 S.E.2d 119; Robinson v. State, 200 Ga.App. 515, 518(2), 408 S.E.2d 820; West v. Nodvin, 196 Ga.App. 825, 830(4c), 397 S.E.2d 567; see Ga. Const. of 1983, Art. VI, Sec. I, Par. IV. In the exercise of our judicial discretion, we elect to review as to each of the above enumerations only the error, repetitively asserted in each, that the court erred in holding Williams had no independent duty to disclose the information known to it, with respect to the soil conditions, other than those described by Civil Practice Act § 9-11-26(b)(4).
2. The following facts are pertinent to the issue of Williams' duty to disclose information as to unsatisfactory soil conditions on the project. Honda in essence contends that Williams had a duty to disclose information as to the unsatisfactory classification of the soil, according to contract standards, used as structural fill underneath the eastern side of the warehouse building. That work appears to have been performed in July and August of 1983, under the daily observation and apparent inspection of Honda's testing service S & ME and Heery. S & ME and Heery approved that work as having been performed in accordance with contract specifications and Williams and At-Less received payment for that work.
In the summer of 1984, after litigation had commenced, a geotechnical expert from Georgia Tech was hired by the litigation counsel for Williams to analyze the surcharge soils with which a problem had been encountered. The condition of the surcharge soils apparently was then at issue in the pending litigation, it being contested whether such soils were "satisfactory" or "unsatisfactory" for use under the contract. If the surcharge soils were "satisfactory" then with proper drying they would be available for use as structural fill in the project without necessitating Williams and At-Less to transport satisfactory fill dirt from other locations.
On July 5, 1984, the geotechnical expert reported to Williams' counsel and other Williams' representatives that four samples had been taken from the surcharge soil material and tested. He concluded that each of these samples should have been classified as "unsatisfactory" under the contract, and that there was a relationship between surcharge soil which was unsatisfactory and the drying problems that had been encountered. However, the expert also stated that, as he had not witnessed the taking of the samples, he could not be sure they were representative of the surcharge soil and more samples would have to be taken and tested, although he harbored a question whether the surcharge was suitable.
On July 7, 1984, additional samples were taken in the presence of a Williams employee, including four samples of soils taken from an area where soil material previously had been cut or excavated and may have been used as surcharge, and one sample from an excavated ditch in an area where fill material was thought to have been removed and near where the warehouse was being constructed. Tests were conducted on these additional samples and another meeting was held on July 26, 1984, with the attorneys, the same employee and Mr. Williams. No written report of the test was obtained but the expert had obtained test result information by telephone. At this meeting the expert noted that in the S & ME report of March 13, 1983, it had been stated that an Atterberg Limits test had been performed on the site soil material--this is the type of test necessary to determine whether the soil was satisfactory under the contract specifications. The expert further explained that a building could be built on unsatisfactory soil, as defined in the contract specification, if properly designed for that soil. The president of Williams was unaware of the specific locations of the individual samples taken by the expert or the specific logic for the selection of these particular samples, and this was not discussed at the meeting. At this meeting the expert advised that a soil scientist should be employed to identify the types of soil and the vertical and horizontal extent of those soils in their original in situ state before excavation in order, inter alia, to determine the extent of the unsatisfactory soil material on site. Of the 21 soil samples taken and tested, 19 of them tested unsatisfactory according to the expert's analysis. However, Honda's agents had previously reported the surcharge soil as satisfactory, and Mr. Williams expressly stated: "As of July 26, 1984, I and everyone else at Williams to my knowledge had absolutely no awareness of the fact that the surcharge soil had not been tested and classified by [S & ME]" and he did not understand why the expert's description of the test results indicated the surcharge to be unsatisfactory. Williams received a written report of the expert's findings in late December 1984, after the foundation of the warehouse had been completed; this report was delayed due to the expert's diagnosis of having cancer in August 1984. The report explained that six of the samples in question were "thought to be" representative of fill placed under the eastern part of the warehouse, and that one of these tested "satisfactory" and the others "unsatisfactory." By the time of this report, Williams had substantially completed all of its work on the job at the Honda site, and without question all of the concrete slab placement had been completed by Suitt Construction Company in all of the building areas. Ultimately the expert's physical condition improved...
To continue reading
Request your trial
-
DJ Mortg., LLC v. Synovus Bank
...contract provisions are involved, the jury should find the facts." American Honda 750 S.E.2d 807 Motor Co. v. Williams & Assoc., 208 Ga.App. 636, 644(5), 431 S.E.2d 437 (1993) (citation omitted).(B) Waiver of requirement to hold assignments in escrow. The bank argues that, even if the 2009 ......
-
Univ. of Ala. Bd. of Trs. v. New Life Art, Inc.
...as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” Am. Honda Motor Co. v. Williams & Assocs., Inc., 208 Ga.App. 636, 431 S.E.2d 437, 443 (1993) (quotations and alteration omitted).23 The most relevant evidence for this analysis would be the part......
-
Albany Oil Mill, Inc. v. Sumter Elec. Membership Corp.
...summary judgment must be affirmed if right for any reason, whether stated or unstated. See, e.g., American Honda Motor Co. v. Williams & Assoc., 208 Ga.App. 636, 642(2), 431 S.E.2d 437 (1993). It is the grant itself that is to be reviewed for error, and not the analysis employed. See Fudge ......
-
Renden, Inc. v. Liberty Real Estate Ltd. Partnership III
......Perlis Realty Co., 198 Ga.App. 165, 166, 400 S.E.2d 644. ...528, 531, 373 S.E.2d 243; accord American Honda, . Page 818. etc., Co. v. Williams & ......