Ballenger Corp. v. Dresco Mechanical Contractors, Inc.
| Citation | 156 Ga.App. 425,274 S.E.2d 786 |
| Decision Date | 06 January 1981 |
| Docket Number | 59989,60107 and 60170,Nos. 59988,60024,59990,s. 59988 |
| Parties | BALLENGER CORPORATION et al. v. DRESCO MECHANICAL CONTRACTORS, INC. et al. (two cases). JONES & FELLERS ARCHITECTS, ENGINEERS & PLANNERS, INC. v. BALLENGER CORPORATION et al. (two cases). DRESCO MECHANICAL CONTRACTORS, INC. et al. v. BALLENGER CORPORATION et al. (two cases). |
| Court | United States Court of Appeals (Georgia) |
Edward H. Wasson, Jr., Atlanta, for appellants Ballenger Corp. et al. in Nos. 59988 and 59990.
C. James Jessee, Jr., David A. Handley, James C. Huckaby, Jr., James B. Ritchie, Atlanta, for appellees Dresco Mechanical Contractors, Inc. et al. in Nos. 59989 and 60024.
David A. Handley, James C. Huckaby, Jr., James B. Ritchie, Atlanta, for appellant Jones & Fellers Architects, Engineers & Planners, Inc. in Nos. 59989 and 60024.
Edward H. Wasson, Jr., C. James Jessee, Jr., Atlanta, for appellees Ballenger Corp. et al. in Nos. 59989 and 60024.
C. James Jessee, Jr., James B. Ritchie, Jr., Atlanta, for appellants Dresco Mechanical Contractors, Inc. et al. in Nos. 60107 and 60170.
Edward H. Wasson, Jr., David A. Handley, Atlanta, for appellees Ballenger Corp. et al. in Nos. 60107 and 60170.
This opinion results from no fewer than six appeals and cross-appeals following a five-month trial on Phase I of an action severed for trial in three phases. The record below is voluminous, the transcript of trial proceedings consisting of more than 14,000 pages. The facts salient to these appeals are as follows:
I. Statement of Facts.
The actions below arose from the construction of a large hospital complex in Rome, Georgia, known as Project No. GBA(H)-7, Northwest Georgia Regional Hospital (hereinafter referred to as the "Project"). The Project was constructed for and is owned by the Georgia Building Authority (Hospital) (hereinafter "Building Authority") and was publicly bid in late 1970. The contract was awarded to Ranger Construction Co. which became general contractor for the Project, The Travelers Indemnity Co. (hereinafter "Travelers") providing the necessary performance and payment bonds. Subsequently, the name of Ranger Construction Co. was changed to Ballenger Corp. (hereinafter "Ballenger"). Jones & Fellers Architects, Engineers & Planners, Inc. (hereinafter "Jones & Fellers") acted as supervising architects for the Project per an agreement entered with the Building Authority. On March 15, 1971, Ballenger entered into a subcontract with Dresco Mechanical Contractors, Inc. (hereinafter "Dresco") for construction of the mechanical and utility portions of the Project. United States Fidelity & Guaranty Co. (hereinafter "USF&G") provided the performance and payment bonds on the subcontract.
The Project was a large health care facility consisting of seventeen buildings to be completed in two phases. Construction began in March of 1971 and was originally to be completed within 900 days, that period later extended for an additional 865 days. Early in the performance period, the Project became fraught with a number of problems, including the improper functioning of the steam distribution and chill water systems running between all buildings and difficulties with the insulation of heating and air conditioning ducts, which work was performed pursuant to the subcontract between Dresco and Ballenger. Numerous disputes arose between the parties. These disputes generally followed the following course: Jones & Fellers would inspect Dresco's work and issue condemnations requiring Dresco to correct the work. Dresco would frequently protest the condemnations, and the Building Authority would investigate and determine the required level of performance. On many condemnations, corrective work was ordered. On some such occasions, Dresco performed the additional work; on others, Dresco refused further performance, and Ballenger was required to correct the designated problems. These four-way disputes, between Jones & Fellers, Dresco, Ballenger and the Building Authority became quite common with Dresco generally contending that Jones & Fellers provided deficient plans and specifications and that Ballenger had impeded Dresco's performance and with Jones & Fellers and Ballenger contending that Dresco's performance was defective.
On August 2, 1974, Ballenger (then Ranger Construction Co.) filed suit against Dresco and its surety, USF&G, for breach of contract seeking recovery of $1,590,936.07 damages plus interest, costs and attorney fees. On November 11, 1974, Dresco answered generally denying any recovery under the subcontract and filed a counterclaim against Ballenger, Travelers and Jones & Fellers. The counterclaim consisted of four counts alleging (i) bad faith and breach of contract by Ballenger and Travelers in withholding certain payments due Dresco for work performed and in withholding and concealing a reduction in retainage payment from the owner, (ii) negligence of Ballenger and Travelers in the direction and supervision of Dresco and negligent inspection and preparation of plans and specifications by Jones & Fellers, and (iii) recovery in quantum meruit against Ballenger and Travelers for work performed. Ballenger and Travelers and Jones & Fellers filed answers to the counterclaim generally denying any liability to Dresco.
Subsequently, Ballenger and Travelers filed cross-claims against Jones & Fellers alleging negligent performance by Jones & Fellers of its design and supervision duties and seeking recovery over against Jones & Fellers for any liability of Ballenger or Travelers in favor of Dresco. Jones & Fellers in turn filed claims against Ballenger (for negligent supervision and coordination of construction), against Travelers (for recovery over on its cross-claim against Ballenger), and against Dresco (for negligent construction).
On December 2, 1977, Dresco amended its counterclaim of November 11, 1974 to add Count V alleging further negligence by Jones & Fellers. On December 21, 1977, Dresco again amended its counterclaim adding Count VI alleging certain intentional acts of bad faith by Ballenger and Travelers designed to injure Dresco and causing Dresco additional losses of $500,000; Dresco further sought to recover $1,000,000 in exemplary damages. On January 5, 1978, Dresco amended Count III of its counterclaim to allege Ballenger's and Travelers' interference with the contractual relation between Dresco and its insulation subcontractor. On January 11, 1978, the trial court ordered that the jury trial proceed in phases, the first consisting of all of the aforementioned claims except those claims alleged in Count VI of Dresco's amended counterclaim, which claims were to comprise the second phase of the trial.
Phase I of the case proceeded from January 11, 1978, through June 15, 1978, when the jury returned verdicts on all issues submitted. On July 5, 1978, the trial court ordered final judgment as follows in accordance with Code § 81A-154(b): (i) that Dresco recover $505,414.37 as general damages and $150,000.00 as attorney fees jointly and severally from Ballenger and Travelers; (ii) that Ballenger recover $50,000.00 from Jones & Fellers; (iii) that Jones & Fellers recover nothing from Dresco, Ballenger or Travelers; (iv) that Ballenger recover nothing from Dresco or USF&G (v) that Dresco recover nothing from Jones & Fellers; (vi) that Travelers recover nothing from Jones & Fellers; and (vii) that Count VI of Dresco's counterclaim be severed for separate trial.
On August 3, 1978, Dresco filed a motion for judgment notwithstanding the verdict and, in the alternative, for new trial solely as to Dresco's counterclaim against Jones & Fellers. These motions were overruled by order of the trial court entered February 25, 1980.
On August 4, 1978, Ballenger and Travelers filed a notice of appeal to this court (docketed as Case No. 59988) from the trial court judgment entered July 5, 1978. In response, Jones & Fellers filed a timely cross-appeal (docketed as Case No. 59989).
Thereafter, Ballenger and Travelers obtained various orders of the trial court extending the time within which to file a transcript of the proceedings below. On December 11, 1979, Dresco moved to dismiss the appeal in Case No. 59988 for unreasonable delay in filing the transcript of proceedings. This motion was denied by the trial court on February 25, 1980.
Finally, on March 10, 1980, Ballenger and Travelers filed a second notice of appeal (docketed as Case No. 59990) enumerating identical errors and containing argument identical to that supporting Case No. 59988. In response, Jones & Fellers once again filed a cross-appeal (docketed as Case No. 60024) virtually identical to its cross-appeal in Case No. 59989.
On March 25, 1980, Dresco and USF&G filed a notice of appeal (docketed as Case No. 60107) and an identical notice of cross-appeal (docketed as Case No. 60170). In addition, Dresco and USF&G have filed motions in this court to dismiss the appeals in Case Nos. 59988 and 59990.
The issues presented by each of these motions, appeals and cross-appeals are addressed below.
II. Case Numbers 60107 and 60170.
Dresco has filed motions with this court to dismiss the appeals of Ballenger and Travelers alleging that (i) though Ballenger and Travelers filed a timely notice of appeal in Case No. 59988, that appeal should be dismissed for unreasonable delay in the preparation and filing of the trial transcript, and that (ii) the notice of appeal in Case No. 59990 was tardily filed. Dresco's first six enumerations of error are similarly directed, alleging error regarding the trial court's rulings on motions to dismiss the appeals and motions for extensions of time within which to file the trial transcript. In response, Ballenger and Travelers contend that Dresco's timely alternative motion for judgment...
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