S. States Chem., Inc. v. Tampa Tank & Welding, Inc.
Decision Date | 31 October 2019 |
Docket Number | A19A0960 |
Citation | 353 Ga.App. 286,836 S.E.2d 617 |
Parties | SOUTHERN STATES CHEMICAL, INC. et al. v. TAMPA TANK & WELDING, INC. et al. |
Court | Georgia Court of Appeals |
Jonathan Tucker Barr, Edwin W. King Jr., Savannah, Jeffrey Young Lewis, Atlanta, George H. Carley, Decatur, Andrew Clay Stevens, Atlanta, for Appellant.
Cecily Joy McLeod, Kimberly Council Sheridan, Atlanta, Mike O'Neal Crawford, Clarkesville, Bradley S. Wolff, Atlanta, for Appellee.
This case comes to us for a third time on appeal.1 Southern States Chemical, Inc., and Southern States Phosphate and Fertilizer Company (collectively, "Southern") appeal the trial court’s order granting Tampa Tank & Welding, Inc. f/k/a Tampa Tank, Inc. ("Tampa Tank") and Corrosion Control, Inc.’s ("CCI") (collectively "Appellees") motion for summary judgment. In its third appearance before this Court, Southern argues that the statute of repose, OCGA § 9-3-51 (a), is not applicable because the claims against Appellees was not for a construction deficiency but for breach of express written warranties. Southern further contends the trial court erred by concluding that the statute of limitation on simple written contracts bars its claims against Appellees, by ruling that Southern failed as a matter of law to exercise due diligence to discover Appellees’ alleged fraud, and by dismissing Southern’s breach of contact per se claim. The parties appeared before this Court on August 22, 2019, for oral argument, at which this Court directed the parties to supplement their briefs with arguments regarding two issues: (1) whether the statute of repose alleging deficiencies in improvements to real property under OCGA § 9-3-51 (a) applies in light of our Supreme Court’s holding in Turner v. Marable-Pirkle, Inc. , 238 Ga. 517, 518, 233 S.E.2d 773 (1977) ; and (2) whether there was any consideration given by Southern for the alleged 43 or 45-year warranty that Southern contends was made as part of a report prepared by CCI for Tampa Tank in 2002. For the reasons that follow, we affirm.
Bruce v. Georgia-Pacific, LLC , 326 Ga. App. 595, 595, 757 S.E.2d 192 (2014) (citations and punctuation omitted).
The relevant facts and procedural history of this case are set forth in this Court’s prior opinions as well as the order giving rise to this appeal:
Southern States II , 338 Ga. App. XXVIII at pg. 1-6 (citations and footnote omitted).
After the case was remanded to the trial court following Southern’s first appeal, Southern States I , Southern filed a fourth amended complaint which included for the first time, a claim for breach of contract based on the one-year express warranty and for breach of contract per se. In a July 2015 order, the trial court granted Appellees’ motion for summary judgment finding, on the issue of fraud and equitable estoppel, that fraud did not toll the statute of repose and that Southern did not exercise due diligence to discover any alleged fraud by Appellees because it never conducted annual testing of the cathodic protection system as recommended by the post-inspection report. The trial court determined that because an essential element of fraud was absent, Appellees were not estopped from successfully asserting a statute of repose defense under OCGA § 9-3-51 (a). The July 2015 order gave rise to...
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Construction Law
...(quoting Deal v. Coleman, 294 Ga. 170, 172-73, 751 S.E.2d 337, 342 (2013)).4. See S. States Chem., Inc. v. Tampa Tank & Welding, Inc., 353 Ga. App. 286, 836 S.E.2d 617 (2019). 5. Miller Act of 1935, 74 P.L. No. 321, 49 Stat. 793.6. See United States ex rel. Cleveland Constr. v. Stellar Grp.......
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...845 S.E.2d 351 (2020).135. Id., 845 S.E.2d at 352.136. Id. at 552, 845 S.E.2d at 353.137. . Id.138. Id. at 555, 845 S.E.2d at 355.139. 353 Ga. App. 286, 836 S.E.2d 617 (2019).140. Ga. S.B. 451, Reg. Sess. (2020). 141. O.C.G.A. § 9-3-51 (2021).142. 353 Ga. App. at 295, 836 S.E.2d at 625.143.......
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Wills, Trusts, Guardianships, and Fiduciary Administration
...Judge McFadden alluded to the fact that Cynthia was absent from her home because she was caring for her ailing mother. Id. at 196, 836 S.E.2d at 617.37. Id. at 191, 836 S.E.2d at 614. O.C.G.A. § 53-4-56 (2020) provides: "In construing a will, the court may hear parol evidence of the circums......