Goette v. Ratiu, 61131
| Decision Date | 09 April 1981 |
| Docket Number | No. 61131,61131 |
| Citation | 279 S.E.2d 539,158 Ga.App. 245 |
| Parties | GOETTE et al. v. RATIU et al. |
| Court | Georgia Court of Appeals |
John W. Hendrix, Savannah, for appellants.
Charles W. Brannon, Jr., Albert N. Remler, J. Harris Lewis, John G. Kennedy, Savannah, for appellees.
Catherine Goette and Mary Bernard Goette, residing at 310 East Liberty Street, Savannah, Georgia, contend that in the restoration of adjoining property at 308 East Liberty Street, Savannah, Georgia, Ion Ratiu, their neighbor, together with his architect and his contractor, jointly and severally, damaged their property in performing the restoration. The houses supposedly shared a mutual and common wall and mutual and common chimneys as well as mutual and common sills and stringers beneath the floor joists under the buildings.
Plaintiffs have sued the above parties as defendants for damages, resulting to them by reason of the restoration work, which has occurred to their chimney flues, fireplaces, walls and plaster which allegedly resulted directly and proximately from the joint and several negligence of the defendants. They sought damages in the amount of $40,000 ($30,000 in general damages and $10,000 in punitive damages).
The defendants answered separately, denying in general plaintiffs' claims. The defendant contractor filed a cross claim against the defendant owner and the defendant architect. The defendant owner also filed a cross claim against the other co-defendants, contending that they were independent contractors with whom he had contracted for the renovation of the property and that he at no time sought to undertake to direct either of them in the manner or means in which the renovation was conducted and that if he is found to be liable to the plaintiffs, these defendants shall jointly and severally be liable in like sum to him although he denied any liability.
We are concerned here only with the defendant owner, Ratiu, in whose favor summary judgment has been granted. Motions for summary judgment on behalf of the defendant architect and defendant contractor contending the action was barred by the statute of limitation had previously been denied. The plaintiffs appeal. Held:
1. In the defendant Ratiu's answer he only admits that he is the owner of the adjoining property, claiming generally that he was out of the country during most of the time that construction was taking place and that he was informed of problems only after the work was completed and he physically moved into the premises. He does admit, however, that during the restoration that he noticed that the bricks had not been removed from the fireplaces in the living room and dining room "to restore them to their original size," and he sought to have the architect and contractor determine if they could be so restored, depending entirely upon these two professional men to do the entire job. He contends that he did not exercise any control nor retain the right to control either the architect, the contractor, or any of their employees. Copies of the standard form of agreement (AIA Document B131) between the owner and the architect and standard form agreement between the owner and contractor (AIA Document A111) were attached to his affidavit in support of his motion for summary judgment and interrogatories. He denied any knowledge of the common wall and at all times relied on the expertise of the two experts who had executed the agreements with reference to the renovation. He admits, however, that the hearths of the fireplaces were enlarged to accommodate larger substances.
The architect's contract was for a consideration of 10% of the construction cost for the standard services performed by an architect with an hourly agreement for such additional services that should be rendered. The architect was required to conform to the requirements of the owner who had the power of approval over the architectural design.
The agreement entered into with the contractor provided for compensation of 10% of the cost of the work not to exceed $37,518, and the contractor guaranteed the maximum cost to the owner not to exceed $41,269 except for changes in the work which would be adjusted by the cost of the work plus 10% contractor's fee. The owner by contract maintained his power of approval over the project.
The affidavit of one of the plaintiffs is that the contracts disclose that the owner approved blueprints, issued orders for the opening of the fire boxes, and had the power of approval over the architectural design and construction of the project. Plaintiff's affidavit infers that the fireplaces were never originally constructed as wood-burning fireplaces but...
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