Brewer v. Williams
| Decision Date | 27 June 1983 |
| Docket Number | No. 65697,65697 |
| Citation | 167 Ga.App. 151,305 S.E.2d 891 |
| Parties | BREWER et al. v. WILLIAMS et al. |
| Court | Georgia Court of Appeals |
J. Timothy White, Gary D. Stokes, Atlanta, for appellants.
Timothy Williams and Sharon J. Strange, pro se.
This appeal is from a $15,000 jury verdict in favor of appellees in this action for damages resulting from an allegedly defective roof on a condominium purchased by appellees from appellants in September 1980. The complaint, as amended, sought recovery based upon breach of contract, negligence, and fraud. Named as defendants to the action were Bill Brewer & Associates, Inc., the contractor for the reconstruction of the condominium; and its principal, William S.A. Brewer.
The facts adduced at trial showed that the replacement roof in question was installed in May 1979. There was evidence, though disputed in part by appellants, showing that the roof developed numerous leaks and that Brewer contacted the installer on numerous occasions through the summer of 1980 regarding the leaks. There was also evidence showing that although some of the leaks had been repaired, the roof was generally unsuitable and defective.
Appellee Strange testified that she initially contacted Brewer about the condominium in June 1980. She testified that she was told by Brewer that a new roof had been installed as a part of the overall repair and reconstruction of the condominium. Both appellees testified that they first noticed leaks in the portion of the roof over their condominium approximately one month after closing.
The roof in question covers the entire building, which houses nine condominiums. Each condominium is owned in fee simple. An experienced roofing mechanic testified that the entire roof could be repaired properly for $15,300. He also testified that the segment of the roof owned by appellees could be repaired for $2,500, but that such a repair could not insure that water from leaks from other segments of the roof would not find its way into appellees' condominium.
The case was submitted to the jury under all three theories of recovery alleged in the complaint. The form of the verdict specified only two alternative choices and specified no breakdown between an award of compensatory and an award of punitive damages. Appellants made no objection to the form of the verdict returned.
1. Appellants challenge the trial court's denial of their motions for directed verdict and for judgment notwithstanding the verdict on the contract count of the complaint. This argument is based upon an attempt to distinguish Worthey v. Holmes, 249 Ga. 104, 287 S.E.2d 9, affirming 159 Ga.App. 262, 282 S.E.2d 919. However, this argument is wholly irrelevant to this case, because the real estate sales contract in question provided that "[a]ll repairs ... [would] be completed by seller in a good and workmanlike manner prior to closing." The closing documents specifically provided that the terms and conditions of the real estate sales contract would survive closing and would not merge upon delivery of the warranty deed. Appellees based their contract claim upon the contention that the repairs to the roof were not done "in a good and workmanlike manner," and there was ample evidence adduced at trial to support this claim. Consequently, the trial court ruled properly in submitting this issue to the jury.
2. Equally without merit is appellants' contention that the trial court erred in submitting appellees' negligence count to the jury. There was ample evidence indicating that work directly performed by Bill Brewer & Associates was a cause of the problems with the roof. Thus, the general rule that an employer is not responsible for the negligent acts of an independent contractor (OCGA §§ 51-2-4 and 51-2-5 (Code Ann. §§ 105-501, 105-502) ) does not eliminate recovery in this case on the basis of negligence. Furthermore, under the evidence in this case, the negligence of the roofing subcontractor might be imputed to the appellants as the violation of a duty imposed by contract (OCGA § 51-2-5(3) (Code Ann. § 105-502) ) or as having been ratified by appellants (OCGA § 51-2-5(6) (Code Ann. § 105-502) ).
3. Relying heavily upon Lively v. Garnick, 160 Ga.App. 591(1), 287 S.E.2d 553, appellants argue that appellees failed to make out at trial a proper case of fraud resulting from passive concealment of a known defect. See Wilhite v. Mays, 239 Ga. 31, 235 S.E.2d 532, affirming 140 Ga.App. 816, 818, 232 S.E.2d 141. However, unlike Lively, supra, and contrary to appellants' contention, there was ample evidence showing that Brewer knew of the alleged defects in the roof prior to appellees' purchase of their condominium. As there was additional evidence to support the contentions that...
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