Denny Express Vinyl Siding, Inc. v. Boatright Roofing and General Contracting, Inc.
343 Ga. App. 235
| Ga. Ct. App. | 2017Background
- Shadow Brooke Village: 15 residential buildings (90 units) built 2001–2009; vinyl siding installed on multiple buildings; building 15 completed Sept. 8, 2009.
- Association sued developer, general contractor, vinyl-siding subcontractor, and roofing subcontractor on Oct. 18, 2012, alleging negligent construction, misrepresentation, and breach of contract causing water intrusion and structural damage.
- Appellants (developer, general contractor, vinyl-siding subcontractor) moved for summary judgment arguing the 4‑year statute of limitation and 8‑year statute of repose bar most claims; also sought spoliation sanctions after Association’s post‑suit destructive testing.
- Roofing subcontractor moved for and received unopposed summary judgment based on statute of limitations; trial court entered final judgment for that defendant.
- Trial court denied dismissal for spoliation but indicated it might instruct the jury on spoliation; appellants challenged that, seeking factual findings by the court.
- Court of Appeals: affirmed in part and reversed in part — majority of claims time‑barred (buildings 1–14), preserved claims for building 15, reversed trial court’s delegation to jury on spoliation fact‑finding, and declined to issue advisory opinion about effect of final judgment for roofing subcontractor on apportionment/contribution rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 9‑3‑30(b)(1) (synthetic‑siding discovery rule) saves claims filed Oct. 18, 2012 | Association: discovery of serious damage occurred in 2012 (mushrooms, rot on Building 2), so claims timely | Appellants: evidence of complaints, reports, and known leaks as early as 2004–2008 put Association on inquiry notice; discovery rule triggered earlier | Held: discovery rule applies to synthetic siding but reasonable‑diligence discovery occurred by Feb. 12, 2007 (AL Trogdon report); claims for buildings 1–14 are time‑barred; only building 15 (completed within 4 years) survives |
| Whether attorney’s‑fees claim under OCGA § 13‑6‑11 survives | Association: factual disputes about bad faith preclude summary judgment | Appellants: underlying tort claims are time‑barred, so fee claims fail | Held: fee claims tied to the barred claims for buildings 1–14 are dismissed because underlying claims are time‑barred |
| Effect of the trial court’s unopposed final judgment for roofing subcontractor on appellants’ apportionment/contribution rights | Appellants: unclear how a final judgment for non‑settling roofing subcontractor affects their apportionment/contribution rights; seek guidance | Roofing subcontractor: argues apportionment/contribution depends on trial findings and its judgment does not control those rights | Held: Court declines to issue advisory opinion; no reviewable ruling because trial court made no specific determination about apportionment/contribution impacts |
| Proper factfinder and remedy for spoliation (destructive testing/removal of siding/tabby) | Appellants: court should make spoliation factual findings and impose appropriate sanctions (potential dismissal or jury instruction) | Association: trial court’s partial grant/denial (declining dismissal; indicating possible jury instruction) was adequate | Held: trial court erred to the extent it would let the jury decide whether spoliation occurred; factual findings on spoliation, bad faith, and remedy are for the trial court to make |
Key Cases Cited
- Danjor, Inc. v. Corporate Constr., 272 Ga. App. 695 (summary judgment standard and burden on movant)
- Costrini v. Hansen Architects, 247 Ga. App. 136 (de novo review of summary judgment)
- Scully v. First Magnolia Homes, 279 Ga. (application of synthetic‑siding discovery rule)
- Colormatch Exteriors, Inc. v. Hickey, 275 Ga. (damages from construction accrue at substantial completion)
- Phillips v. Harmon, 297 Ga. (rebuttable presumption/instruction for spoliation used only in exceptional cases)
- Bouve & Mohr, LLC v. Banks, 274 Ga. App. (definition of spoliation and trial court factfinding)
- Lustre‑Diaz v. Etheridge, 309 Ga. App. (trial court duty to decide spoliation facts and admissibility)
- Kitchens v. Brusman, 303 Ga. App. (remedies for spoliation: presumption, dismissal, exclusion)
- Barnett v. Farmer, 308 Ga. App. (apportionment discussion)
- Dempsey v. Gwinnett Hosp. Sys., 330 Ga. App. (appellate courts avoid advisory opinions)