Caroline Realty Inv., Inc. v. Kuniansky, 47262

• Decision Date: 12 October 1972
• Docket Number: No. 1,No. 47262,47262,1
• Citation: 127 Ga.App. 478,194 S.E.2d 291
• Parties: CAROLINE REALTY INVESTMENT, INC. v. Max L. KUNIANSKY et al
• Court: Georgia Court of Appeals

Page 291

194 S.E.2d 291

127 Ga.App. 478

CAROLINE REALTY INVESTMENT, INC. v. Max L. KUNIANSKY et al.

No. 47262.

Court of Appeals of Georgia, Division No. 1.

Oct. 12, 1972.

Syllabus by the Court

1. As the defendant corporation was not a legal entity at the time complained of and as there was no incorporation by estoppel, the grant of its motion for summary judgment was correct.

2. An express warranty by a seller-builder to a buyer of a building to repair defects in the building was by its terms applicable for only one year.

3. The defendant subcontractor failed to pierce material allegations of the complaint. It was error to grant defendant's motion for summary judgment.

4. The statute of limitation barred plaintiff's claim against this defendant subcontractor.

This appeal by the plaintiff, Caroline Realty Investment, Inc., is another allied case to Welding Products of Georgia v. Kuniansky, 125 Ga.App. 537, 188 S.E.2d 278; Welding Products of Georgia v. S. D. Mullins Co. and Welding Products of Georgia v. R. F. Burton Co., 127 Ga.App. 474, 193 S.E.2d 881, and stems from the collapse of the same roof. Plaintiff in this case is the owner of the building which distinguishes it from the Welding Products cases, for Welding Products was a sub-tenant. The defendant appellees are Kuniansky, builder-vendor, M.K. Construction Corp., R. F. Burton Company and S. D. Mullins Company. The trial court in effect granted to each of the defendants motions for summary judgment. The divisions of this opinion will be related to each individual defendant.

Moore & Morris, Charles E. Moore, Jr., W. Grady Morris, Atlanta, for appellant.

Shoob, McLain & Jessee, M. David Merritt, Greene, Buckley, DeRieux & Jones, James A. Eichelberger, Parks & Eisenberg, Poole, Pearce, Cooper & Smith, Walter G. Cooper, Atlanta, for appellees.

BELL, Chief Judge.

1. Defendant M.K. Construction Corp. This defendant was made a party on the allegation that it had contracted with the defendant Kuniansky for the construction of the building. In the answer to the complaint, M.K. Construction Corp. pleaded that it was not in existence at the time when the building was constructed in 1965 or 1966 and did not come into being as a legal entity until July 30, 1968, and affidavits and defendant Kuniansky's deposition factually support this defense. In addition there is in the record a copy of a warranty made at the time of the sale of the building from defendant Kuniansky to the plaintiff and it recites in part as follows: 'Max L. Kuniansky, as sole proprietor of M.K. Construction Company,' and the warranty was executed by Kuniansky. This defendant's showing prima facie reveals that it was not in existence as a legal entity at the times involved and therefore it cannot be liable to plaintiff. The plaintiff argues the doctrine of incorporation by estoppel and relies upon answers to interrogatories made by some of the other defendants who were subcontractors, that they dealt with the M.K. Construction Company. It has been held that the term 'company' imports a corporation until the contrary is shown. Holcomb v. Cable Co., 119 Ga. 466, 46 S.E. 671. The contrary has been shown by the evidence supporting the motion. No issue of fact has been raised on the theory of incorporation by estoppel as between plaintiff and this defendant. There is nothing in the record showing of any dealings between the plaintiff and this defendant in the capacity as a corporate entity or any holding out to the public as a corporation other than the use of the trade name M.K. Construction Company. Adams v. Overland-Madison Co., 27 Ga.App. 531, 109 S.E. 413. The evidence shows that the M.K. Construction Corporation was not in existence at the time germane to this suit. We affirm the grant of the motion for summary judgment.

2. Defendant Kuniansky. Plaintiff alleged negligent construction against this defendant, fraudulent concealment of known defects and also breach of an express warranty which Kuniansky gave to the plaintiff when the building was sold to the plaintiff. In his brief the plaintiff has tacitly admitted that the theory of recovery on the ground of negligence has been disposed of adversely to him by our decision in Welding Products of Georgia v. Kuniansky, 125 Ga.App. 537, 188 S.E.2d 278. As to the count of the complaint alleging fraudulent concealment of known defects, the plaintiff in its brief makes no argument or citation of authority. We therefore treat this theory of liability as abandoned. Whisenhunt v. Allen Parker Co., 119 Ga.App. 813, 168 S.E.2d 827.

Plaintiff argues only the issue of the breach of the express warranty. The warranty provided that the seller-builder Kuniansky, 'will for a period of one year from August 1, 1966, make all repairs to the said Marietta Boulevard property, including all improvements made by Max L. Kuniansky thereon which become necessary due to defects of any kind because of faulty material and/or faulty workmanship.' The roof collapsed in 1970. The plaintiff argues that this warranty, the one year limitation on the warranty, does...