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Action on bond. Chatham Superior Court. Before Judge Harrison.
DEEN, Judge.
EBERHARDT, Presiding Judge, concurring specially.
1. In an action for damages for breach of contract by a corporation engaged in building a hospital against the general contractor, referred to an auditor for determination and involving various adverse claims on the part of the plaintiff, general contractor, subcontractors and architects, a third-party defendant, proceeding under a statutory provision allowing such an entity to bring a third-party proceeding on its own behalf against others who are or may be liable over in the event of judgment against it, was permitted by the trial court to file such action over, 36 days after itself being made a third-party defendant as to the issues involved in its own action over. The grant of the motion to make parties was not an abuse of the discretion of the trial court.
2. The trial court had jurisdiction to rule on objections to requests for admission and motions to produce at a time prior to the date on which the original appeals were docketed in this court.
St. Joseph's Hospital, Inc., the plaintiff in the action out of which these appeals arise, negotiated a contract with Mike Bradford & Co., Inc., a contractor, to build a hospital in Chatham County. On the default of the contractor its surety, Continental Casualty Co., assumed obligations to complete the construction and, acting for the plaintiff, negotiated a contract for this purpose with Norair Engineering Corp. on which Aetna Casualty and Surety Co. was surety. The hospital began operating the facility in June, 1970, although some work remained unfinished, and in September, 1970, it gave a notice of termination. In January, 1971, it filed an action against Norair, Aetna, Continental Casualty and others, including unpaid lienholders, seeking over $600,000 in damages for delay, poor performance and cost overruns. The following month Norair and Aetna answered and counterclaimed against the plaintiff, alleging that a part of the delay in completion beyond the contract date was due to acts of the plaintiff's agent and architect, Abreu and Robeson, Inc. Norair also cross claimed against certain defendants and others whom it prayed be made defendants, including Abreu and Robeson, for portions of any judgment which might be rendered against it. An order was procured making Abreu and Robeson a defendant to the action and cross claim on February 16, 1971, but on May 14 this was corrected by an order stating that Abreu and Robeson was a defendant as to the cross claim only. Abreu and Robeson then answered and counterclaimed against Norair. On June 1 the plaintiff amended its petition in response to Norair's counterclaim, denying that it would be liable to this defendant for any default of the architect and seeking a recovery against Abreu and Robeson for any amounts by which its recovery might be reduced by the counterclaim. Abreu and Robeson thus first became a third-party defendant as to the plaintiff St. Joseph's on Norair's counterclaim. Abreu and Robeson was not finally made such defendant until an order dated January 4, 1973, in response to a motion of the plaintiff to this effect filed December 27, 1972. In the meantime, an auditor had been appointed, various claims were decided, and the taking of testimony in the main case between St. Joseph's and Norair was begun on September 11, 1972.
Abreu and Robeson on February 9, 1973, moved as third-party defendant, having been so designated in the plaintiff's defense to Norair's counterclaim, to make Continental Casualty Co., Wilder and Associates, Dow Chemical and American Standard, Inc. third-party defendants as to it, which motion was finally granted on June 1, 1973 on motion for reconsideration after an initial denial. To summarize: St. Joseph's sued Norair. Norair filed a third-party complaint making Abreu and Robeson a third-party defendant as to it. Norair also counterclaimed against St. Joseph's. St. Joseph's, defendant as to this counterclaim, joined Abreu and Robeson as third-party defendants therein. Abreu and Robeson then filed its own third-party complaint against Wilder, Dow and Continental Casualty, the parties appellant here as to the orders which eventually granted the motions and joined them in the proceedings. The third-party complaint of Abreu and Robeson alleges in part that St. Joseph's contends it was negligent in delaying decision-making processes and failing to provide adequate supervision of the contract; that Continental Casualty procured the Norair contract contrary to its advice; that the plaintiff and Continental failed to call on the architect and it has therefore been subjected to unreasonable burdens, that they owe it some $84,000 in fees; that Wilder contracted with Abreu and Robeson for engineering services which Norair and the plaintiff now claim to be defective; that Dow Chemical provided roof insulation which they also claim to have been defective, and that if any judgments are rendered against Abreu and Robeson these items they are entitled to judgment over against the subcontractors.
1. We first consider the primary controversy involved in the appeals, which is whether it was error to order these appellants to be sucked into the vortex of this litigation some two and a half years after its commencement. Ordinarily such a time span would seem to be excessive, especially since a considerable amount of testimony had been presented to the auditor. But is this overall time span properly to be considered in deciding the question?
Norair, the original defendant, impleaded Abreu and Robeson under the provisions of Code Ann. 81A-114 (a). It could not make the architect a party defendant as to the plaintiff, because the plaintiff may ordinarily choose whom it wishes to sue. It could not bring the architect into the proceedings by means of cross claim under Code Ann. 81A-113 (g) because such a claim must be a "claim by one party against a co-party" and until Abreu and Robeson was brought in by the third-party complaint it was not in any sense a party to the action. Under Code 81A-114 (a) the plaintiff "may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff." St. Joseph's, as defendant in Norair's counterclaim, properly impleaded Abreu as third-party defendant therein. The latter, as such third-party defendant, "may proceed under this section against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant" (Wilder and Dow Chemical) and may also "assert any claim against the plaintiff" arising out of the transaction, as, here, the count for architect's fees. Until Abreu & Robeson was impleaded by the plaintiff, it was not necessary for it to file any claim against the plaintiff. The specific issues here dealt with were not raised in the third-party claim of Norair, which also joined seven subcontractors but not the two here involved, and which simply alleged a general lack of adequate supervision and prayed for a judgment equitably proportioned among the eight third-party defendants of airy judgment rendered in favor of the plaintiff against Norair. These were the claims Abreu & Robeson was defending against prior to the amendment of St. Joseph's naming it a third-party defendant to the counterclaim, the date of which pleading was January 4, 1973. The motion for action over against these appellants was filed on February 9, a lapse of 36 days. We consider this timely, when found by the trial court to be so, within the meaning of Jenkins v. Chambers, 127 Ga. App. 200 (1) (193 SE2d 222). Where the court allows the pleading, there is no built-in requirement as to when it must be filed. Such a motion is addressed to the discretion of the court. See Holland-America Line v. United Co-ops, Inc., 124 Ga. App. 375 (2) (183 SE2d 620); and see 3 Moore's Federal Practice 14.18 [2.-1]. Even when entered, the court may, in the interests of justice, vacate the order and reverse its position regarding the making of parties, so long as there is no abuse of discretion and the delay works no undue hardship upon the new defendant entered in the lists. That this is true under the corresponding Federal practice, see Duke v. Reconstruction Finance Corp., 209 F2d 204.
In an attempt to demonstrate that undue prejudice has in fact accrued to these defendants, the appellants set out in their briefs excerpts from testimony taken prior to the order finally adjudicating their status. It is true that the transcript of testimony runs to some 3,500 pages but out of all this less than a score deal with the issues specifically raised in these third-party complaints. Examining the voluminous record, and especially those parts to which we have been directed by the parties, we conclude that the specific counterclaim and liabilities over which involve these three entities are so much a part of the overall picture that it is well to decide them in a single action, and that these defendants have not in fact been damaged by the testimony to date. Their right to generate counter -- testimony is unimpaired. We find no merit in the contention that Code Ann. 81A-119, relating to the joinder of persons "needed for a just adjudication" negatively affects the question before us. The same is true of Code Ann. 81A-113 (h), as this entire section deals with counterclaims and cross claims. The situation involved is covered in that part of Code Ann. 81A-114 (a) which states: "A third-party defendant may proceed under this section against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant," such third-party defendant being Abreu and Robeson in its defense against St. Joseph's defendant in the counterclaim of Norair. Liability for architectural fees is one of many issues involved in determining the rights of the various parties to damages. So are the alleged failures or deficiencies of the various sub-contractors as to the part each played, if it did, in delaying the project or failing to bring it up to a proper standard. We find no abuse of discretion in making the appellants parties to the action.
2. In cases Nos. 49337 and 49338 Continental Casualty Co. contends that the court erred in requiring it to respond to certain requests for admission and to produce certain documents on the ground of lack of jurisdiction. The order making it a third-party defendant was dated June 1, 1973, and the appeal therefrom filed within the month on a certificate of appealability. The orders relating to production of evidence were dated October 2, 1973, and the hearing which resulted in their entry took place after the notice of appeal was filed in the trial court but before the case was docketed in this court.
App. 341 (183 SE2d 773). We held there that when a preliminary ruling is sought to be appealed and the trial court grants a certificate to the effect that the order (in that case one requiring production of documents) is of such importance that immediate review should be had, under Code Ann. 6-701 (a 2), and the case actually is appealed on certificate and is pending in this court, the trial court may not, prior to a decision by this court, impose sanctions against the movant for failure to comply with the very order pending on appeal, render final judgment against the movant and thus moot the jurisdiction of this court. A far different situation results where the main case has not reached this court and where the ancillary order is not final in character. The orders in cases 49336 and 49337 contain no reversible error.
It is with the greatest trepidation that I join in the judgment here. I fear that this will be taken as an approval of annexing new parties in various postures after great delay, though my brethren assure me that they do not so intend. The holding in Jenkins v. Chambers, 127 Ga. App. 200 (2) (193 SE2d 222) is not invalidated by the ruling of today, else I could not join in this judgment.
There is merit in the fact, as Abreu & Robeson, Inc. urges in its brief, that within 36 days after its posture in the case was altered from that of a defendant to cross claims only (having been dismissed as a defendant vis-a-vis the plaintiff) to a third-party defendant it sought and obtained the order allowing it to implead appellants as third-party defendants. There is complaint that this is permitting a "Christmas Treeing" of the main action and at an inappropriate time. We must allow the trial judge latitude in the exercise of his discretion, though not to the point of abuse.
Another consideration is that the court has a right to afford separate trials for any of the parties who may have suffered harm by reason of the delay, or by reason of having been joined to the festooning action at a time when the taking of depositions, etc., in the process of discovery or in the proceedings before an auditor has been done without allowing them to open packages by cross examination of witnesses. Code Ann. 81A-120 (b). It appears that the main case has already been tried before an auditor, and thus separation of the causes has been given effect. We must assume that this will continue wherever it appears that any other course of action would work unreasonable harm or expense to the parties involved. On the separate trial of any issue the evidence upon which the party plaintiff relies must be introduced afresh, giving the defense ample opportunity to cross examine, etc. and avoiding much of what appellants complain about.
E. Ormonde Hunter, for St. Joseph's.
Fendig, Dickey, Fendig & Whelchel, Albert Fendig, Jr., for Abreu & Robeson, Inc.
Smith, Currie & Hancock, Edward H. Wasson, Jr., John D. Sours, for Continental Cas. Co.
Brannen, Wessels & Searcy, Charles H. Wessels, for Frank B. Wilder & Associates and Dow Chemical Co.
Friday May 22 11:39 EDT

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