Summary
stating that Georgia law does not allow negligence claims where "there is a lack of privity between the parties and the alleged negligence was neither inherently dangerous, caused personal injury, nor caused property damage . . ."
Summary of this case from Pycsa Panama S.A. v. Tensar Earth TechnologiesOpinion
CIVIL ACTION NO. 1:04-cv-3537-GET.
December 11, 2006
ORDER
The above-styled matter is presently before the court on:
1) defendant R.L. Brown Associates, Inc.'s ("R.L. Brown") motion for summary judgment [docket no. 351];
2) defendant R.L. Brown's motion for joinder of defendants Heery International, Inc., Heery/Mitchell, and E.R. Mitchell Company's (jointly, "Heery/Mitchell") motion to strike, or in the alternative, motion to strike portions of the affidavit of Troward G. Wells, Jr. [docket no. 382].
Plaintiffs filed the instant action on December 3, 2004, seeking damages resulting from the breach of a construction contract related to Freedom Middle School ("the Freedom Project"). Plaintiffs issued a performance bond to Latco Construction Company, Inc. ("Latco"), the general contractor on the Freedom Project, in favor of DeKalb County Board of Education ("DCBE"). In addition to Latco, DCBE hired R.L. Brown to serve as architect for the project and Heery/Mitchell, a joint venture between Heery International, Inc. and E.R. Mitchell Company, to serve as program manager. After deficiencies were discovered in the construction of the school, DCBE declared Latco in violation of the contract and plaintiffs completed the project as obligated by the performance bond. DCBE also claimed additional payments from plaintiffs. In an agreement settling those claims (the "settlement agreement"), DCBE assigned all claims against third parties in connection with the design, construction, and supervision of the Freedom Project to plaintiffs.
Plaintiffs filed the instant suit against Heery/Mitchell and R.L. Brown. Against R.L. Brown, plaintiffs assert claims for breach of contract as third-party beneficiaries, through assignment, and right of subrogation, professional negligence and negligent misrepresentation, in both their own right and by right of subrogation, and common law indemnity. The instant order deals only with motions between plaintiffs and R.L. Brown regarding plaintiffs' claims against R.L. Brown. On July 13, 2006, R.L. Brown filed a motion for summary judgment against plaintiffs. On April 5, 2006, Heery/Mitchell filed a motion to strike portions of plaintiffs' expert's affidavit. On September 12, 2006, R.L. Brown filed a motion to join in Heery/Mitchell's motion to strike.
R.L. Brown's Motion for Summary Judgment
Standard
Courts should grant summary judgment when "there is no genuine issue as to any material fact . . . and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must "always bear the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 106 S. Ct. 2548, 477 U.S. 317, 324 (1986). That burden is `discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325; see also U.S. v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991).Once the movant has met this burden, the opposing party must then present evidence establishing that there is a genuine issue of material fact. Celotex, 477 U.S. at 325. The nonmoving party must go beyond the pleadings and submit evidence such as affidavits, depositions and admissions that are sufficient to demonstrate that if allowed to proceed to trial, a jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 477 U.S. 242, 257 (1986). If he does so, there is a genuine issue of fact that requires a trial. In making a determination of whether there is a material issue of fact, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Id. at 255; Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). However, an issue is not genuine if it is unsupported by evidence or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 249-50. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party's case. Id. at 248. Thus, to create a genuine issue of material fact for trial, the party opposing the summary judgment must come forward with specific evidence of every element essential to his case with respect to which (1) he has the burden of proof, and (2) the summary judgment movant has made a plausible showing of the absence of evidence of the necessary element. Celotex, 477 U.S. at 323.
Facts
In light of the foregoing standard, the court finds the following facts solely for the purpose of resolving this motion for summary judgment. DCBE owns and operates Freedom Middle School. On June 2, 1999, Latco entered into a fixed price construction contract with DCBE (the "Latco Contract") for the construction of Freedom Middle School. Under the Latco Contract, Latco was required to obtain a performance bond. Plaintiffs, as co-sureties, provided the performance bond, which incorporated the Latco Contract by reference. The performance bond further provided that if Latco was found in default of the Latco Contract by DCBE and plaintiffs were notified by DCBE of the default, that plaintiffs had an obligation to inform DCBE that plaintiffs would either "complete full performance of the [Latco] Contract including, without limitation, correction of defective and nonconforming work performed by or on behalf of [Latco]," or, with the consent of DCBE, obtain bids from contractors for full performance of the Latco Contract, or to "[t]ake any and all other acts, if any, mutually agreed upon in writing by" DCBE and plaintiffs.
R.L. Brown also had a contract with DCBE (the "R.L. Brown Contract") relating to the Freedom Project to serve as the Architect for the project. In addition to traditional architectural services, the R.L. Brown Contract states that R.L. Brown agreed to "supervise the construction of the work and use his powers to require that the contractor shall comply with the contract." R.L. Brown Contract, Article 8(a). The supervision included "the issuance of certificates of payment" and "the supervision of construction." R.L. Brown Contract, Article 8(a). With regard to certification of payments, the R.L. Brown Contract states: "The architect will certify no work for payment which has been covered prior to his consent. The architect is fully responsible for any work designed, approved, certified, or accepted by his engineers the same as if the said work were designed, approved, certified, or accepted by him." R.L. Brown Contract, Article 8(a)(2). The R.L. Brown Contract also details the standard of professional services that R.L. Brown would provide to DCBE. R.L. Brown Contract, Article 12.
Latco was found in default of its contract for Freedom Middle School by DCBE because of substantially defective work that was discovered by R.L. Brown and Heery/Mitchell. Plaintiffs were notified by letter from DCBE, dated April 10, 2000, that Latco was in default and that Latco's right to continue performance under the Latco Contract was terminated. Upon receipt of the letter from DCBE, plaintiffs elected to discharge their obligations as surety to DCBE under the performance bond and paid to complete construction of the Freedom Project.
Latco submitted eighteen (18) pay applications under the Latco Contract. The first pay application was signed by R.L. Brown's representative, Leah Wiley, on August 17, 1999. In certifying the pay application, "the Architect certifies to the Owner that to the best of the Architect's knowledge, information and belief the Work has progressed as indicated, the quality of the Work is in accordance with the Contract Documents, and the Contractor is entitled to payment of the AMOUNT CERTIFIED." The eighteenth pay application was certified by Leah Wiley on January 22, 2001. Before the payment of the eighteenth pay application, and after payment of approximately 96% of the contract funds to Latco under the first seventeen (17) pay applications, serious defects were discovered in Latco's construction work at Freedom Middle School, and further investigation identified more serious defects.
Latco defaulted on two (2) jobs, Freedom Middle and New Lithonia High Schools. Under the performance bond, plaintiffs had to take over and complete both jobs. The settlement agreement entered into between plaintiffs and DCBE references the "Freedom Contract," the "New Lithonia Contract," the "Dugdale Litigation," the "Lat and Hope Nguyen Litigation," the "Latco Freedom Litigation," and the "Latco New Lithonia Litigation." In the settlement agreement between DCBE and plaintiffs, plaintiffs ran a calculation for both jobs and came to a settlement amount with DCBE as to how much plaintiffs were owed for the completion of both jobs from the funds held by DCBE. The combined balance for the Freedom Contract and the New Lithonia Contract ("combined contract balance") was $3,011,044.34. Paragraph G.3, entitled "Disbursement of Combined Contract Balance" states:
[DCBE] shall disburse the Combined Contract Balance as set forth in this Paragraph 3 and subject to the terms and conditions of this Agreement. [DCBE] shall retain and keep as compensation for its damages, including, but not limited to, liquidated damages, architectural, construction management, engineering fees and expenses, and attorneys' fees, incurred on both the Freedom Project and the New Lithonia Project, the amount of one million two hundred thousand and no/100 dollars ($1,200,000.00) (hereinafter referred to as the "Obligee's Damages"). As full and complete payment for the timely performance of all of [plaintiffs'] obligations under this Agreement, and subject to the terms and conditions set forth in this Agreement (including, without limitation, the time and manner of payment), [DCBE] shall pay [plaintiffs] the amount of one million eight hundred eleven thousand forty-four and 34/100 dollars ($1,811,044.34) (hereinafter referred to as the "Co-Sureties' Final Payment").
There was no express allocation of the combined contract funds between the Freedom Project and the New Lithonia Project in the settlement agreement.
Discussion
Breach of Contract as Third-Party Beneficiaries
Count III of plaintiffs' complaint asserts that plaintiffs are third-party beneficiaries to the contract between R.L. Brown and DCBE (the "R.L. Brown Contract") and thus have standing to assert a claim against R.L. Brown for breach of the contract. In its motion for summary judgment, R.L. Brown disputes that plaintiffs are third-party beneficiaries to the R.L. Brown Contract and further asserts that plaintiffs fail to provide any admissible evidence showing that R.L. Brown breached the contract.
Georgia law permits "[t]he beneficiary of a contract made between other parties for his benefit [to] maintain an action against the promisor on the contract." O.C.G.A. § 9-2-20(b). Georgia courts require, however, that the contract clearly demonstrate that it was intended for the third-party's benefit.Scott v. Mamari Corp., 242 Ga. App. 455, 457 (2000).
`The mere fact that he would benefit from performance of the agreement is not alone sufficient.' [Cit.] `Unless such an intention is shown on the face of the contract, defendant is under no duty and consequently plaintiff acquires no right as the third party beneficiary.' [Cit.] A contract is intended to benefit a third party when the promisor engages to the promisee to render some performance to a third person. [Cit.]Id. In determining whether a party may maintain an action to enforce a contract that he is not a party to, it is the intention of the contracting parties to benefit the party as a third party that will control. Beckman Cotton Co. v. First Nat'l Bank, 666 F.2d 181, 183 (5th Cir. 1982).
After reviewing the parties' arguments, the court finds that while plaintiffs may have benefited from the contract, the R.L. Brown Contract was primarily for the benefit of DCBE to ensure the proper building of Freedom Middle School. See Whitley v. Bryant, 198 Ga. 328, 337 (1944) (holding that "the action cannot be maintained merely because the third person will be incidentally benefited by the performance of the contract" but that the third person "must be a party to the consideration, or the contract must have been entered into for his benefit, and he must have some legal or equitable interest in its performance."). Plaintiffs fail to provide, and the court cannot find, any language in the R.L. Brown Contract showing that DCBE and R.L. Brown intended plaintiffs to benefit from the contract. The R.L. Brown Contract does not make any mention of plaintiffs, and while plaintiffs may have derived some benefit from the contract, the benefit is not sufficient to confer upon plaintiffs the rights of a third-party beneficiary. See Scott, 242 Ga. App. at 457 ("The mere fact that he would benefit from performance of the agreement is not alone sufficient."). Thus, the court GRANTS R.L. Brown's motion for summary judgment [docket no. 351] on plaintiffs' claim for breach of contract as a third-party beneficiary.
Professional Negligence
Plaintiffs' complaint asserts a personal claim against R.L. Brown for professional negligence. Plaintiffs contend that R.L. Brown breached a duty owed to plaintiffs in the provision of architectural services to DCBE. In its motion for summary judgment, R.L. Brown responds that it owed no duty to plaintiffs because there was no privity of contract between R.L. Brown and plaintiffs. R.L. Brown further argues that the economic loss rule bars plaintiffs' claim for professional negligence because plaintiffs are not in privity with R.L. Brown and are only seeking to recover for economic damages.
In Georgia, "[a]bsent privity between the plaintiff and the professional, generally, the professional cannot be sued for professional negligence by a third party." Smiley v. S J Invs., Inc., 260 Ga. App. 493, 495 (2003). Georgia courts have been willing to relax the requirement of privity in malpractice actions, "recognizing that under certain circumstances, professionals owe a duty of reasonable care to parties who are not their clients." Id. Courts have permitted an exception to the rule of strict contractual privity where injury to a third party is foreseeable. Id. "[I]n cases involving negligent misrepresentation of facts, liability extends to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly. . . . [Otherwise] there will be no liability in the absence of privity, willfulness, or physical harm or property damage." Id. (citing Robert Co. Assoc. v. Rhodes-Haverty P'ship, 250 Ga. 680, 682 (1983)). The Georgia Court of Appeals has indicated that where negligence is alleged against a defendant and there is a lack of privity between the parties and the alleged negligence was neither inherently dangerous, caused personal injury, nor caused property damage, that the appropriate cause of action "arises under an action for negligent misrepresentation by a professional reasonably relied upon to the detriment of a third party whose reliance was foreseeable."Smiley, 260 Ga. App. at 496 (citing Robert Co. Assoc., 250 Ga. at 682).
Georgia's economic loss rule, O.C.G.A. § 51-1-11(a), provides:
Except as otherwise provided in this Code section, no privity is necessary to support a tort action; but, if the tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases where the party would have a right of action for the injury done independently of the contract and except as provided in Code Section 11-2-318.
O.C.G.A. § 51-1-11(a). The economic loss rule thus bars a plaintiff from recovering in tort where the party is not in privity with the defendant and the plaintiff's damages are purely economic. Robert Co. Assoc., 250 Ga. at 681; see also Malta Constr. Co. v. Henningson, Durham Richardson, Inc., 716 F. Supp. 1466, 1468 (N.D. Ga. 1989). In Robert Company Associates, the Supreme Court of Georgia adopted an exception to the economic loss rule, which allows a plaintiff to assert a claim for negligent misrepresentation against a defendant with whom the plaintiff is not in privity "where a known third party's reliance was the desired result of the representation." 250 Ga. at 681.
In discussing the negligent misrepresentation exception to the strict privity requirement for a professional negligence claim, the Georgia Court of Appeals has refused to find a similar exception for other negligence claims where there is a lack of privity between the parties. In Wood Brothers Construction Company v. Simons-Eastern Company, 193 Ga. App. 874 (1989), the plaintiff, who was a contractor working on a construction project, sued the defendants, who were hired to design and supervise the construction of the project. Id. at 876. The plaintiffs asserted a claim against the defendants for negligent supervision of the construction, which arose out of the contract between the owner of the project and the defendants. Id. at 875. The court held that while there is an exception to the strict privity rule for negligent misrepresentation claims, there is no similar exception for claims alleging negligent failure to supervise a project. Id. at 876 (citing Gulf Contracting v. Bibb County, 795 F.2d 980, 982, n. 2 (11th Cir. 1986)). Negligent review of work was also not found to fit within the negligent misrepresentation exception to the economic loss rule in Malta Construction Company. 716 F. Supp. at 1468. (holding that a plaintiff who was not in privity with the defendants was not allowed to assert a claim for negligent review of shop drawings under the exception).
Plaintiffs contend that privity is not required to support their professional negligence claim against R.L. Brown and cite to Balboa Insurance Company v. Fulton County, 148 Ga. App. 328 (1978), which held:
[W]here a construction contract requires, as a condition of payments to the contractor, a certificate or estimate of an architect, engineer, or other person designated in the contract, showing the amounts due, the owner is not responsible, as against the surety on the contractor's bond, for the mistakes of the architect or engineer, and the surety is not discharged from liability to the owner by reason of payments made in good faith in accordance with overestimates or erroneous certificates, although such payments exceed, in fact, the sums due under the contract.148 Ga. App. at 330. Plaintiffs assert that because Balboa Insurance indicates that they have no right of action against DCBE for R.L. Brown's alleged erroneous supervision, inspection, and certification of Latco's work, that this court should recognize a relationship between plaintiffs and R.L. Brown sufficient to allow plaintiffs recourse against R.L. Brown for the alleged negligent performance of R.L. Brown's duties. Plaintiffs, however, acknowledge that there is no Georgia case law on point where the exception to the requirement of strict privity has been applied to a surety asserting a claim for professional negligence against a party that they are not in privity with. Georgia courts have carved out a narrow exception to the rule requiring privity for a professional negligence claim and this court does not find support for plaintiffs' assertion that the rule should be relaxed in the present case. Plaintiffs admit that they are not in privity with R.L. Brown, and further do not allege wilfulness, physical harm, or property damage. Plaintiffs further fail to provide the court with other exceptions to the rule of strict privity recognized by Georgia courts that would apply to this case other than the one for negligent misrepresentation. Therefore, this court GRANTS R.L. Brown's motion for summary judgment [docket no. 351] on plaintiffs' personal claim for professional negligence, and will analyze plaintiffs' claim against R.L. Brown under the theory of negligent misrepresentation.
Negligent Misrepresentation
Plaintiffs' complaint asserts a personal claim for negligent misrepresentation against R.L. Brown. In its motion for summary judgment, R.L. Brown contends that plaintiffs are actually asserting a claim for negligent supervision of the construction project, which is not allowed in Georgia without privity between the parties. R.L. Brown further asserts that plaintiffs do not satisfy the essential elements of a claim for negligent misrepresentation. Plaintiffs dispute R.L. Brown's characterization of their claim as a "failure to supervise" claim, and further state that their negligent misrepresentation claim is legally sufficient and that they present evidence to support all elements of the claim.
In Georgia, the elements of a negligent misrepresentation claim are: "(1) the defendant's negligent supply of false information to foreseeable persons, known or unknown; (2) such person's reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance." Hardaway Co. v. Parsons, Brinckerhoff, Quade Douglas, Inc., 267 Ga. 424, 426 (1997). In Robert Company Associates v. Rhodes-Haverty Partnership, the Georgia Supreme Court carved out an exception to the general rule that requires privity to assert a claim for negligent misrepresentation against a professional for cases "where a known third party's reliance was the desired result of the representation." 256 Ga. 680, 681 (1983). The court stated:
Under this standard, one who supplies information during the course of his business, profession, employment, or in any transaction in which he has a pecuniary interest has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended it be so used.Id. at 681-82. The court limited the scope of liability to "a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly." Id. at 682. A plaintiff alleging negligent misrepresentation under the exception must show that the defendant's representation was "made for the purpose of inducing third parties to rely and act upon the reliance." Id.; see also White v. BDO Seidman, 249 Ga. App. 668, 670 (2001) (holding that a plaintiff may only recover where their reliance was the desired result of the misrepresentation). "If such cannot be shown there will be no liability in the absence of privity, wilfulness or physical harm or property damage." Roberts Co. Assoc., 256 Ga. at 682.
In Badische Corporation v. Caylor, 257 Ga. 131 (1987), the Georgia Supreme Court clarified the rule from Roberts Company Associates "by holding that professional liability for negligence extends to those persons, or the limited class of persons, who the professional is `actually aware' will rely upon the information prepared." Martha H. West Trust v. Market Value of Atlanta, Inc., 262 Ga. App. 90, 92 (2003) (quoting Badische Corp., 257 Ga. at 133). The plaintiff must show that the defendant made a representation. Ali v. Fleet Finance, Inc., 232 Ga. App. 13, 14 (1998). The plaintiff must also provide evidence of actual reliance, as evidence of indirect reliance will not suffice. White, 249 Ga. App. at 493. Where evidence of reliance is introduced, a jury question is created as to whether the reliance was justified. Smiley, 260 Ga. App. at 499. If any one of the elements of a negligent misrepresentation claim is not present, then the rule from Roberts Company Associates does not apply. Martha H. West Trust, 262 Ga. App. at 92-93.
After evaluating the parties' arguments, the court finds, regardless of whether R.L. Brown negligently certified any of Latco's payment requests, that plaintiffs fail to provide the court with any evidence of plaintiffs' actual reliance on R.L. Brown's certifications or other actions. Plaintiffs signed the performance bond for the Latco Contract before R.L. Brown certified any of Latco's pay applications. Plaintiffs cannot circumvent this required element by alleging that DCBE relied on the certifications and that DCBE's reliance caused plaintiffs' injury. See White, 249 Ga. App. at 671 ("[W]e cannot agree that Georgia law permits such indirect reliance to substitute for proof of actual reliance in a negligent misrepresentation case.")
Contrary to plaintiffs' assertion, City of Cairo and Balboa Insurance do not change Georgia law with regard to the actual reliance element of a negligent misrepresentation claim. In City of Cairo, the court stated that the plaintiff, while not in privity with the defendant, relied on the defendant's inaccurate soil report when the plaintiff purchased land based on the results of the report. 278 Ga. App. 721, 727-28 (2006). Thus, there was evidence of the plaintiff's direct reliance on the defendant's negligent misrepresentation because the plaintiff both received and paid for the defendant's soil report before purchasing land. Id. Plaintiffs fail to provide the court with any evidence of their actual reliance on R.L. Brown's alleged negligent certifications of Latco's pay applications or other representations, as plaintiffs had already issued the performance bond before the alleged negligent misrepresentations occurred. With regard toBalboa Insurance, this case held that a surety may not recover against the owner of a project when the surety asserts that the owner should not have made payments to a contractor because of the mistakes of an architect or engineer. 148 Ga. App. at 330.Balboa Insurance does not, contrary to plaintiffs' contention, further state that the surety may recover directly against the architect or engineer. Regardless of whether DCBE relied upon R.L. Brown's certification of Latco's pay applications, and whether plaintiffs as a result were therefore bound by this reliance, this does not provide the court with direct evidence of plaintiffs' actual reliance on R.L. Brown's alleged negligent certification of the pay applications.
Plaintiffs further fail to provide any evidence showing that R.L. Brown's alleged misrepresentations through its negligent certification of the pay applications were made for the purpose of inducing plaintiffs to rely and act upon the representations, which is also an essential element of a negligent misrepresentation claim. Roberts Co. Assoc., 250 Ga. at 681 (holding that if a plaintiff cannot show that the alleged misrepresentation was made for the purpose of inducing the plaintiff to rely and act upon the reliance, "there will be no liability in the absence of privity, wilfulness or physical harm or property damage.") Thus, this court GRANTS R.L. Brown's motion for summary judgment [docket no. 351] on plaintiffs' personal claim for negligent misrepresentation.
Breach of Contract by Assignment
Plaintiffs' complaint asserts a breach of contract claim against R.L. Brown through DCBE's assignment of its claims to plaintiffs. Plaintiffs state that DCBE assigned its breach of contract claim to plaintiffs in the settlement agreement entered into between DCBE and plaintiffs. Paragraph 12 of the settlement agreement, entitled "Assignment of Rights and Claims," reads:
Except as provided in the immediately succeeding sentence, [DCBE] hereby assigns, without recourse, to [plaintiffs] any and all rights and claims [DCBE] or the DeKalb County School District may have against Contractor or others with respect to the Freedom Contract, the Freedom Project, the New Lithonia Contract, and the New Lithonia Project.
In its motion for summary judgment, R.L. Brown asserts that the court should grant summary judgment in its favor on plaintiffs' breach of contract claim by assignment because plaintiffs fail to provide any admissible evidence showing that R.L. Brown breached its contractual obligations with DCBE.
Article 12 of the R.L. Brown Contract, entitled "Standard of Professional Care," states:
[R.L. Brown] contracts that he is possessed of that degree of care, learning, skill, and ability which is ordinarily possessed by other members of his profession and further contracts that in the performance of the duties herein set forth he will exercise such degree of care, learning, skill, and ability as is ordinarily employed by architects under similar conditions and like circumstances and shall perform such duties without neglect, and shall not be liable except for failure to exercise such degree of care, learning, skill, and ability.
Article 8 of the R.L. Brown Contract, entitled "Supervision of the Work," states that R.L. Brown "agrees to supervise the construction of the work and to use his powers to require that the contractor shall comply with the contract documents." The supervision included "the issuance of certificates of payment." Article 8 of the R.L. Brown Contract also stated that, as a part of general administration, R.L. Brown would "by periodic inspections made personally by principals of the architectural firm . . . shall (i) enforce the faithful performance of the contract and (ii) assure himself that work has been or is being installed in accordance with the contract documents before allowing it to be covered." Each pay application submitted to DCBE for payment to Latco was certified by R.L. Brown. The R.L. Brown Contract, under the heading "Architect's Certificate for Payment," states:
In accordance with the Contract Documents, based on on-site observations and the data comprising this application, the Architect certifies to the Owner that to the best of the Architect's knowledge, information and belief the Work has progressed as indicated, the quality of the Work is in accordance with the Contract Documents, and the Contractor is entitled to payment of the AMOUNT CERTIFIED.
With respect to these duties that R.L. Brown was obligated to perform under its contract with DCBE, the court finds that plaintiffs present sufficient evidence to withstand R.L. Brown's motion for summary judgment on their breach of contract by right of assignment claim. DCBE's representative, Mr. Stanley Pritchett, testified in his deposition that DCBE relied upon the certifications by R.L. Brown and Heery/Mitchell when making a decision as to whether to release the payments requested by Latco. The deposition testimony of Troward Wells and the expert report of William Charvet states that R.L. Brown breached its contractual duties by certifying pay applications submitted by Latco for work that was non-conforming and that R.L. Brown allowed non-conforming work to be covered up. The document entitled "Freedom Middle School: List of Non-Conforming and Outstanding Work" lists numerous projects completed by Latco, for which Latco was paid pursuant to payment applications certified by R.L. Brown and Heery/Mitchell, that plaintiffs were called on to remediate when Latco was declared in default of its contract with DCBE. This evidence is sufficient to create genuine issues of material fact regarding whether R.L. Brown properly performed its duties under the R.L. Brown Contract. Plaintiffs have gone beyond the pleadings and present competent evidence designating "specific facts showing that there is a genuine issue for trial."Celotex Corp., 477 U.S. at 334, 106 S. Ct. at 2558. R.L. Brown fails to cite any law that requires plaintiffs to provide evidence from a DCBE representative confirming that DCBE believes R.L. Brown breached its contract with DCBE. A material question of fact remains as to whether R.L. Brown breached their contractual obligations owed to DCBE. Thus, the court DENIES R.L. Brown's motion for summary judgment [docket no. 351] on plaintiff's claim for breach of contract by assignment.
Breach of Contract by Right of Subrogation
Plaintiffs' complaint asserts a breach of contract claim against R.L. Brown through the equitable right of subrogation. Under Georgia law, "a surety who has paid the debt of his principal shall be subrogated, both at law and in equity, to all the rights of the creditor and, in a controversy with other creditors, shall rank in dignity the same as the creditor whose claim he paid." O.C.G.A. § 10-7-56. Subrogation, which is both a legal as well as an equitable right, "`is the substitution of another person in the place of the creditor whose obligation is paid, so that the person in whose favor it is exercised succeeds to all the rights of the creditor.'" First Nat'l Bank v. American Surety Co., 71 Ga. App. 112, 117 (1944) (quoting Jasper School Dist. v. Gormley, 184 GA. 756, 758 (1937)).
In its motion for summary judgment, R.L. Brown contends that plaintiffs fail to provide evidence of R.L. Brown's breach of contract, and further that plaintiffs do not have an equitable right of subrogation against R.L. Brown under a breach of contract theory. As the court previously found that plaintiffs present sufficient evidence of R.L. Brown's alleged breach of contract to withstand R.L. Brown's motion for summary judgment, the court will examine R.L. Brown's latter argument that plaintiffs do not have an equitable right of subrogation.
R.L. Brown first cites to Argonaut Insurance Company v. C S Bank of Tifton, 140 Ga. App. 807 (1976), to assert that plaintiffs were only entitled to money in the hands of DCBE earned by Latco before Lacto's default and that DCBE paid this money to plaintiffs. The court finds that the analysis inArgonaut does not support R.L. Brown's contention because inArgonaut, the issue before the Georgia Court of Appeals was whether the surety, who issued a performance bond to the principal, was entitled to money earned by the principal, but still in the hands of the obligee, before the principal was found in default of the contract. 140 Ga. App. at 814. In the present case, plaintiffs are not seeking money in the hands of DCBE, but rather are seeking damages from R.L. Brown.
R.L. Brown's motion further contends that plaintiffs should attempt to collect damages from Latco before pursuing claims against R.L. Brown. R.L. Brown states that plaintiffs filed suit and obtained a consent judgment in excess of $6.9 million against the principals of Latco for allegedly the same damages that plaintiffs seek to recover in the present lawsuit. R.L. Brown directs the court, however, to no case law in Georgia that requires a surety to pursue the principal first before it may pursue action against a third party that the creditor had claims against. Georgia statute provides that the surety "shall be subrogated . . . to all the rights of the creditor." O.C.G.A. § 10-7-56 (emphasis supplied). If it were shown that plaintiffs collected the $6.9 million judgment, then equity might not favor holding R.L. Brown liable through the theory of subrogation. This, however, was not shown to the court through either of the parties' briefs, and thus plaintiffs are not prohibited from asserting a subrogation claim against R.L. Brown.
R.L. Brown's motion also cites to United States Fidelity Guarantee Company v. First National Bank in Dallas, Texas, 172 F.2d 258 (5th Cir. 1949), to support its contention that plaintiffs are not entitled to assert a subrogation claim against R.L. Brown as a third party. In that case, the Fifth Circuit Court of Appeals held:
Subrogation is an equitable remedy, and, while a surety may become subrogated to the rights and remedies of the creditor against a third person, he stands, with respect to the right of recovery against a third person, upon a different footing from that upon which he would stand with respect to the right to recover from a principal. With respect to recovery from a principal, the right is absolute; as to a third person, it is conditional. Since subrogation seeks to place the charge where it ought to rest, by compelling payment by him who in equity owes it, such right will generally not be enforced against a third person where the equities of such third person are equal or superior to those of the surety in respect to the liability.172 F.2d at 263. The court in U.S. Fidelity found that the surety-plaintiff's equities were equal to that of the bank/third party-defendant because there was no evidence to support a finding that either party was negligent or engaged in wrongdoing. Id. The court further noted that "[s]ubrogation in behalf of a surety `is never applied against an innocent person wronged by the principal's fraud.'" Id. (quoting Am. Surety Co. of New York v. Lewis State Bank, 58 F.2d 559, 561 (5th Cir. 1932)).
R.L. Brown's motion argues that principles of equity do not support allowing plaintiffs to recover from R.L. Brown because plaintiffs should never have issued the performance bond to Latco in the first place and that "plaintiffs did absolutely nothing to protect their investment in Latco." R.L. Brown further contends that "equity cannot permit the Plaintiffs to recover money from R L Brown that they contractually agreed to pay when they issued the bond." The court finds that plaintiffs present sufficient evidence to withstand R.L. Brown's motion for summary judgment on its subrogation claims. If it is shown that R.L. Brown has no recourse against plaintiffs or Latco, and that R.L. Brown breached its contract with DCBE and plaintiffs suffered damages as a result, then equity would permit plaintiffs to collect damages from R.L. Brown. See Am. Surety Co. of New York v. Robinson, 53 F.2d 22, 23 (5th Cir. 1931) (finding that, unless the third party has recourse over the principal and his surety, the surety "may often be subrogated to the independent rights of action of the creditor against third parties"). Thus, the court DENIES R.L. Brown's motion for summary judgment [docket no. 351] on plaintiffs' claim for breach of contract by right of subrogation.
Professional Negligence Negligent Misrepresentation by Right of Subrogation
Plaintiffs' amended complaint asserts professional negligence and negligent misrepresentation claims against R.L. Brown through the equitable right of subrogation. R.L. Brown's motion for summary judgment presents two arguments against plaintiffs' claims: that plaintiffs do not have an equitable right of subrogation against R.L. Brown and that plaintiffs' claims fall outside the statute of limitations. The court previously found, however, under the analysis for plaintiffs' breach of contract claim by right of subrogation, that plaintiffs may assert claims against R.L. Brown through the equitable right of subrogation at this stage of the litigation process. Thus, the court will analyze R.L. Brown's statute of limitations argument.
To determine the appropriate statute of limitations for the negligent misrepresentation and professional negligence claims, by right of subrogation, the court must determine what the statutes of limitations for these claims is with respect to DCBE. Under Georgia law, "[a]ll actions for trespass upon or damage to realty should be brought within four years after the right of action accrues." O.C.G.A. § 9-3-30(a). The court finds O.C.G.A. § 9-3-30(a) applicable to determine the statute of limitations for plaintiffs' subrogated negligent misrepresentation claim because the claim is based upon R.L. Brown's alleged misrepresentations to DCBE, which resulted in damage to the Freedom Middle School, which was part of the realty. See City of Cairo v. Hightower Consulting Eng'rs, Inc., 278 Ga. App. 721, 727 (2006) (applying O.C.G.A. § 9-3-30(a) to a negligent misrepresentation claim involving damage to realty). One of the requirements under Georgia law to assert a claim for negligent misrepresentation is "economic injury proximately resulting from such reliance."Hardaway Co. v. Parsons, Brinckerhoff, Quade Douglas, 267 Ga. 424, 426 (1997). Thus, until DCBE actually suffered economic loss, it did not have a claim against R.L. Brown for negligent misrepresentation and the statute of limitations did not begin to run. Id. at 427.
R.L. Brown's motion for summary judgment asserts that if R.L. Brown negligently certified any of Latco's pay applications, that DCBE suffered economic loss at the time of the certification. R.L. Brown further states that because Latco Pay Applications 1-16 were certified outside the four-year statute of limitations, plaintiffs may not assert a negligent misrepresentation claim for those pay applications. The court finds, however, that DCBE did not suffer economic loss as a result of R.L. Brown's alleged negligent misrepresentation until it was notified by letter on December, 19, 2000 of the non-conforming and defective work performed by Latco. See City of Cairo, 278 Ga. App. at 728 ("In a claim for economic injury sustained due to reliance upon false information negligently provided by a defendant, the statute of limitation begins to run when the plaintiff suffers pecuniary loss with certainty, and not as a matter of pure speculation.") (emphasis in original). InCity of Cairo, the Georgia Court of Appeals found that the statute of limitations did not begin to run for a city's claim of negligent misrepresentation against an engineering firm who supplied a soil report for a water treatment facility that the city built until the facility was built and activated. Id. The court specifically rejected the engineering firm's suggestion that the statute of limitations began to run when the city received the report, because it was not until the facility was activated that the city suffered pecuniary losses due to the engineering firm's misrepresentations in the soil report. Id.
In City of Cairo, the Georgia Court of Appeals explicitly rejected R.L. Brown's argument that the statute of limitations began to run from the date that R.L. Brown certified Latco's pay applications when it held:
Public policy considerations lead to our rejection of Law Engineering's argument that the City suffered pecuniary losses in early 1994, when it paid Law Engineering's invoices for the report. Implicit in this argument is the assumption that the City was somehow obligated to make its own evaluation of Law Engineering's results to determine whether they were in fact reliable. To conduct such an evaluation, the City would have had to employ the services of another engineering firm. We decline to endorse, even by implication, such a wasteful approach to public spending.Id. Thus, the court finds that plaintiff's claim for negligent misrepresentation by right of subrogation is timely and is not barred by the statute of limitations, and hereby DENIES R.L. Brown's motion for summary judgment [docket no. 351] on plaintiff's claim for negligent misrepresentation by right of subrogation.
With regard to plaintiffs' professional negligence claim by right of subrogation, the court finds that this claim has a four-year statute of limitations sounding in contract and a two-year statute of limitations sounding in tort. See Harrison v. Beckham, 238 Ga. App. 199, 200, n. 2 (1999) ("A malpractice claim sounding in contract is governed by the four-year statute of limitations in O.C.G.A. § 9-3-25, while a malpractice claim sounding in tort is governed by the two-year limitation in O.C.G.A. § 9-3-33."). Because it is possible for DCBE to maintain an action under either theory, the court will analyze the claim under both the two and four year statute of limitations. See Brock v. Allen, 256 Ga. App. 397, 399 (2002) ("A single act or course of conduct may constitute not only a tort, but also a breach of contract.").
For the professional negligence claim sounding in tort, a two-year statute of limitations applies. See O.C.G.A. § 9-3-33 ("Action for injuries to the person shall be brought within two years after the right of action accrues."). When a plaintiff alleges a professional negligence claim sounding in tort, the Georgia Supreme Court has held:
The statute of limitations begins to run on any given claim on the date the claim accrues — in other words, on the date that suit on the claim can first be brought. "When the question is raised as to whether an action is barred by a statute of limitations, the true test to determine when the cause of action accrued is `to ascertain the time when the plaintiff could first have maintained his action to a successful result.'"Hoffman v. Ins. Co. of N. Am., 241 Ga. 328, 329 (1978) (quotingMobley v. Murray County, 178 Ga. 338 (1934)). The Georgia Supreme Court in Hoffman distinguished the point in time when the statute of limitations begins to run for a professional malpractice claim sounding in contract and one sounding in tort, finding that in malpractice suits based on contract law, such as those against attorneys, the statute of limitations begins to run from the date of the alleged breach of duty "because the client can bring suit immediately upon the occurrence of this conduct giving rise to the action without waiting until the extent of the resulting injury is ascertained." Id. The court found, however, that for a malpractice claim sounding in tort, the statute of limitations does not begin to run until the plaintiff suffers damages from the alleged malpractice. Id. at 329-30.
Plaintiffs assert that the earliest date DCBE was aware of and suffered damages from R.L. Brown's alleged professional negligence was on December 19, 2000, the date DCBE was notified by letter of Latco's non-conforming and defective work that needed remediation. Following the Georgia Supreme Court's analysis in Hoffman, the court finds that the statute of limitations for DCBE's professional negligence claim against R.L. Brown, sounding in tort, expired on December 19, 2002. Plaintiffs did not file suit until December 3, 2004, and thus the statute of limitations had already run by this time.
With regard to plaintiffs' professional negligence claim sounding in contract, the court finds that a four-year statute of limitations applies. See Consol. Mgm't Servs., Inc. v. Halligan, 186 Ga. App. 621, 622 (1988) ("A breach of duty of professional competence falls within the four-year statute of limitation as set forth in O.C.G.A. § 9-3-25."). For claims of attorney malpractice sounding in contract under O.C.G.A. § 9-3-25, Georgia courts have held that the statute of limitations begins to run from "the date of the breach of the duty and not from the time when the extent of the resulting injury is ascertained nor from the date of the client's discovery of the error." Peppers v. Siefferman, 166 Ga. App. 389, 389 (1983); see also Halligan, 186 Ga. App. at 622 (applying the same rationale to malpractice claims against accountants where issues of negligence or unskillfulness were raised).
R.L. Brown asserts that plaintiffs' claim for professional negligence stems from R.L. Browns' certification of Latco's pay applications and that a majority of Latco's pay applications were certified by R.L. Brown before December 3, 2000, which is four years before plaintiffs filed this action. Plaintiffs respond by arguing that the pay application process was cumulative and that when R.L. Brown certified Pay Application 17 on December 4, 2000, R.L. Brown was also certifying that the previous 16 pay applications were properly certified.
After reviewing the Latco pay applications, the court finds that plaintiffs present sufficient evidence to withstand R.L. Brown's motion for summary judgment on their claim for professional negligence by right of subrogation. The pay applications include the total value of the contract, the total completed work to date, the total earned by Latco, the amounts already paid to Latco, the prior amount of retainage withheld, and the current payment due to Latco. The continuation sheet, which is attached to the pay applications, also states the percentage of work that Latco completed at the time of the request for payment. This evidence creates a material question of fact as to whether the pay application process was cumulative. Pay Applications Nos. 17 and 18 were certified within the four (4) year statute of limitations, and thus the court hereby DENIES R.L. Brown's motion for summary judgment [docket no. 351] with regard to plaintiffs' claim for professional negligence by right of subrogation.
Common Law Indemnity
Plaintiffs' amended complaint sets forth a claim for common law indemnity against R.L. Brown, alleging that plaintiffs should be indemnified for the damages they incurred due to R.L. Brown's alleged negligent acts and/or omissions. In its motion for summary judgment, R.L. Brown contends that plaintiffs were not required to pay damages as a result of an alleged tort committed by R.L. Brown, as a common law indemnity claim requires, but rather paid to complete the Latco Contract because plaintiffs had a contractual obligation under the performance bond. Plaintiffs respond to R.L. Brown's motion by acknowledging that while "the factual scenario here does not exactly conform to the conventional premises of imputed liability," plaintiffs should nonetheless be permitted to recover under a theory of common law indemnity.
Under Georgia law, "[a] person who is compelled to pay damages because of liability imputed to them as a result of a tort committed by another may maintain an action for indemnity against the person whose wrong has thus been imputed to him." Auto Owners Ins. Co. v. Anderson, 252 Ga. App. 361, 363 (2001). In order to allow a plaintiff to assert a claim for common law indemnity, Georgia courts require that a wrong committed by the defendant is imputed on the plaintiff. See Nguyen v. Lumbermens Mut. Cas. Co., 261 Ga. App. 553, 557 (2003) (affirming directed verdict in favor of defendant on common law indemnity claim where no wrong was imputed to plaintiffs and plaintiffs' duty to pay stemmed from the surety bond issued in favor of the defendant); see also North Georgia Elec. Membership Corp. v. Thomason Holsomback Constr. Co., Inc., 157 Ga. App. 719, 720 (1981) (affirming trial court's dismissal of common law indemnity claim where plaintiff failed to show a wrong was imputed to it). The court finds that plaintiffs' duty to perform in the present case was not triggered by any wrong that was committed by R.L. Brown and imputed to plaintiffs, but rather stemmed from the performance bond plaintiffs issued for Latco's work. Thus, the court GRANTS R.L. Brown's motion for summary judgment [docket no. 351] on plaintiffs' common law indemnity claim.
Attorney's Fees and Costs
Plaintiffs' amended complaint requests attorney's fees and costs in their Prayer for Relief. R.L. Brown moves for summary judgment on plaintiffs' claim for attorney's fees and costs by stating that plaintiffs fail to plead a cause of action which would entitle them to recover attorney's fees and costs. R.L. Brown contends that plaintiffs have not pled a cause of action nor cited to any authority or evidence which would support a claim for attorney's fees and costs. Plaintiffs fail to respond to R.L. Brown's motion for summary judgment with regard to their claim for attorney's fees and costs. Thus, the court hereby GRANTS R.L. Brown's motion for summary judgment [docket no. 351] on plaintiffs' claim for attorney's fees and costs.
Speculative Damages
R.L. Brown's motion argues that summary judgment should be granted in favor of R.L. Brown because plaintiffs fail to show that the damages they seek were proximately caused by an act or omission of R.L. Brown. R.L. Brown contends that plaintiffs' damages associated with plaintiffs' completion of the Freedom Project are mere speculation and guesswork and that plaintiffs were contractually obligated to finish the project. R.L. Brown states that plaintiffs cannot show the amount of funds that should have been available to plaintiffs to complete the project, but-for R.L. Brown's alleged negligence. R.L. Brown also states that plaintiffs fail to evidence what amounts of damages, if any, were assigned by DCBE to plaintiffs.
O.C.G.A. § 13-6-2 states: "Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach." Uncertainty as to the exact measure or extent of damages will not bar a plaintiff's claim:
The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause. . . . Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.Avers v. John B. Daniel Co., 35 Ga. App. 511, 512 (1926). Georgia contract law further states that, in a breach of contract case, the injured party is to be placed in the position he would have been in if the contract had not been breached. Crawford Associates, Inc. v. Groves-Keen, Inc., 127 Ga. App. 646, 650 (1972) (citations omitted).
Plaintiffs assert that the damages they seek to recover in the present case are a result of R.L. Brown's alleged negligent performance of their contractual duties, including the duty to certify Latco's payment applications. Plaintiffs state that their damages include the cost of remediating nonconforming work performed by Latco and certified by R.L. Brown. Plaintiffs have presented evidence with regard to the pay applications and specific items on the pay applications that they contend should not have been certified by R.L. Brown and the cost to remediate the nonconforming work performed by Latco and certified by R.L. Brown. Accordingly, the court finds that plaintiffs present sufficient evidence to create an issue of fact regarding their damages for the breach of contract claims. The court also finds that plaintiffs present sufficient evidence to withstand R.L. Brown's motion for summary judgment with regard to the breach of contract claim assigned by DCBE and that plaintiffs' claim is not barred simply because the settlement agreement does not allocate the damages between the projects. Thus, this court hereby DENIES R.L. Brown's motion for summary judgment [docket no. 351] with regard to plaintiffs' damages. R.L. Brown's Alleged Release through the Settlement Agreement
In their motion for summary judgment, R.L. Brown incorporates the argument, asserted by Heery/Mitchell in their motion for summary judgment, that plaintiffs released R.L. Brown through the settlement agreement plaintiffs entered into with DCBE. R.L. Brown relies on Paragraph 13 of the settlement agreement, entitled "Co-Sureties' Release of Obligee," which states:
Subject to Paragraph 10, and except for Obligee's obligations under this Agreement, which obligations (subject to the terms and conditions of this Agreement) shall survive the signing of this Agreement, [plaintiffs], and each of them, do hereby forever release, waive and discharge the Obligee, the DeKalb County School District, and the officers, directors, members, employees, staff, successors, assigns and attorneys of any of them, from any and all claims or causes in respect of the Freedom Project, the Freedom Contract, the New Lithonia Project, the New Lithonia Contract, or any one or more of them, whether known or unknown, whether accrued or unaccrued, arising heretofore, now or in the future, and whether sounding in contract, tort or otherwise.
(emphasis added). R.L. Brown contends that the term "attorneys" in the release language effected a release of R.L. Brown because an "attorney" is an agent, and under the R.L. Brown Contract, R.L. Brown was the agent of DCBE, and thus its attorney. R.L. Brown also directs the court to Paragraph 12 of the settlement agreement between plaintiffs and DCBE, and the fact that Paragraph 12, wherein DCBE assigned its rights and claims to plaintiffs, only refers to Latco by name and not R.L. Brown.
The court finds that the word "attorney" in Paragraph 13 of the settlement agreement between plaintiffs and DCBE refers to an attorney at law, and not an attorney in fact. See Balentine's Law Dictionary, (3d ed. 1969) (defining "attorney" as an attorney at law or an attorney in fact, but noting that "[t]he word, unless clearly indicated otherwise, is construed as meaning attorney at law"). The court also notes that Paragraph 12 of the settlement agreement specifically assigns DCBE's claims against Latco to plaintiffs, but also assigns all claims against " others with respect to the Freedom Contract, [and] the Freedom Project." (emphisis added). The term "others" can clearly encompass R.L. Brown with regard to the Freedom Middle School project. Thus, the court hereby DENIES R.L. Brown's motion for summary judgment [docket no. 351] with regard to R.L. Brown's assertion that it was released from all claims through the settlement agreement between plaintiffs and DCBE.
R.L. Brown's Motion to Join Heery/Mitchell's Motion to Strike
With their response to Heery/Mitchell's motion for summary judgment, plaintiffs filed the affidavit of Troward G. Wells, Jr., plaintiffs' representative responsible for negotiating the settlement between plaintiffs and DCBE. Heery/Mitchell filed a motion to strike or, in the alternative, to strike portions of the affidavit of Mr. Wells on April 5, 2006. Heery/Mitchell contends that the affidavit contains inadmissible hearsay and also testimony that is not only not based on Mr. Wells' personal knowledge, but is also speculative, irrelevant, and otherwise improper. Heery/Mitchell objects to statements in Mr. Wells' affidavit that are allegedly not based on Mr. Wells' personal knowledge and are inadmissible hearsay. Specifically, Heery/Mitchell objects to Mr. Wells' testimony regarding any conversations he had with Mr. Phillips and Mr. Wells' speculation about DCBE's intent in entering into the settlement agreement.
After reviewing the parties' argument, the court finds that it is not necessary to look to the affidavit of Mr. Wells to decide Heery/Mitchell's motion for summary judgment. Specifically, with regard to plaintiffs' breach of contract claim, plaintiffs present other sufficient evidence to support their breach of contract claim to withstand R.L. Brown's motion for summary judgment. Additionally, with regard to R.L. Brown's contention that it was released under the settlement agreement between plaintiffs and DCBE, the court finds that the language in the settlement agreement itself is insufficient to support Heery/Mitchell's contention that it was released by the agreement. Thus, the court hereby DENIES AS MOOT R.L. Brown's motion to join defendants Heery/Mitchell's motion to strike, or in the alternative, motion to strike portions of the affidavit of Troward G. Wells, Jr. [docket no. 382].
Summary
1) Defendant R.L. Brown's motion for summary judgment [docket no. 351] is hereby GRANTED in part and DENIED in part. The motion is GRANTED with regard to plaintiffs' claims for breach of contract as third-party beneficiaries, professional negligence, negligent misrepresentation, common law indemnity, and attorney's fees. The motion is DENIED with regard to plaintiffs' claims for breach of contract by assignment, breach of contract by right of subrogation, professional negligence by right of subrogation, negligent misrepresentation by right of subrogation, and with regard to R.L. Brown's claims that plaintiffs' damages are speculative and that R.L. Brown was released by the settlement agreement between plaintiffs and DCBE;2) Defendant R.L. Brown's motion to join defendants Heery/Mitchell's motion to strike, or in the alternative, motion to strike portions of the affidavit of Troward G. Wells, Jr. [docket no. 382] is DENIED AS MOOT.