Keller Industries, Inc. v. Summers Roofing Co., Inc.
| Decision Date | 05 June 1986 |
| Docket Number | No. 71987,71987 |
| Parties | KELLER INDUSTRIES, INC. v. SUMMERS ROOFING COMPANY, INC. et al. |
| Court | Georgia Court of Appeals |
A.L. Mullins, Jr., Jane C. Barwick, Atlanta, for appellant.
David R. Autry, Atlanta, Charles C. Black, Austell, for appellee.
Defendant and third-party plaintiff, Elton Lewis d/b/a Lewis Remodeling ("Lewis"), entered into two contracts with third-party defendant, Keller Industries, Inc. ("Keller"), for the repair and improvement of Keller's manufacturing facility in Rome, Georgia. One contract called upon Lewis to repair Keller's roof and the other contract required Lewis to paint Keller's plant. Lewis undertook the performance of the painting contract on his own. Lewis entered into a subcontract with Summers Roofing Co., Inc. d/b/a Joe Summers Roofing ("Summers"), however, for the repair of Keller's roof.
When a dispute arose concerning the performance of the roofing contract, Keller refused full payment and both Lewis and Summers filed materialman's liens against Keller's property. Thereafter, Summers brought suit against Lewis alleging that it fully performed the subcontract and that Lewis was indebted to it pursuant to the subcontract in the amount of $19,834. Lewis answered the complaint and denied the material allegations thereof. Then Lewis filed a third-party complaint against Keller. In the third-party action, Lewis alleged that the completed the roofing contract and that Keller was liable to him for all sums which may be awarded in favor of Summers and against him. Additionally, Lewis asserted that Keller was liable to him pursuant to the roofing contract in the amount of $21,441.34. In the meantime, Summers amended its complaint to assert a claim directly against Keller.
Keller responded by denying that it was liable to either Summers or Lewis. Keller also counterclaimed against Lewis. The counterclaim was couched in two counts. In Count 1, Keller sought damages against Lewis for the alleged breach of the roofing contract; in Count 2, Keller sought damages against Lewis for the alleged breach of the painting contract.
Following discovery, Summers filed a motion for summary judgment with regard to its claims against Lewis and Keller. The trial court granted the summary judgment motion with regard to the claim against Lewis; however, it denied the summary judgment motion with regard to the claim against Keller. The case proceeded to trial and a verdict was returned by the jury in favor of Summers and Lewis and against Keller in the amount of $19,834. Judgment was entered in accordance with the verdict and Keller filed a motion for new trial. This appeal followed the denial of Keller's new trial motion. Held:
1. As the trial began, counsel for Keller requested that it be allotted six peremptory jury challenges of its own. The trial court refused Keller's request ruling that Keller would have to share six peremptory strikes with Lewis. (Summers was given six peremptory strikes of its own.) Keller's counsel urged the court to reconsider. He argued that the interests of Keller and Lewis were adverse; that the third-party claim was severable; and that, therefore, the court could grant additional strikes in its discretion. The court simply responded: "Well, if it's in the discretion--I just don't have enough jurors, that's the problem." Thereupon, counsel for Keller urged the court to divide all 12 peremptory challenges evenly among Summers, Lewis and Keller. Summers objected to such a procedure and the court refused to implement it. After the jury was impaneled the following colloquy took place between counsel for Keller and the court:
In its first two enumerations of error, Keller contends the trial court erred in its handling of Keller's peremptory challenge requests. We agree. Where, as here, a third-party claim can be severed, OCGA § 9-11-42(b), the trial court may grant additional strikes to the defendants in the exercise of a legal discretion. Sheffield v. Lewis, 246 Ga. 19, 20, 268 S.E.2d 615; State Hwy. Dept. v. Eagle Constr. Co., 125 Ga.App. 678, 681(4), 188 S.E.2d 810; Mercer v. Braswell, 140 Ga.App. 624, 626, 231 S.E.2d 431. A legal discretion ...
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...the law, and directed by the reason and conscience of the judge to a just result." [Cits.]' [Cit.]" Keller Indus. v. Summers Roofing Co., 179 Ga.App. 288, 290(1), 346 S.E.2d 99 (1986). A review of the record clearly shows that the trial court was aware of its discretion in the matter and th......
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