310 Ga. App. 878
Ga. Ct. App.2011Background
- City of Savannah hired Batson-Cook to design and build an underground parking garage at Ellis Square under a September 1, 2005 contract with a GMP of $29,592,416 and August 28, 2007 completion.
- Contract included a materially differing site conditions clause; notice of such conditions had to be given within 21 days.
- Pre-contract soils reports identified soft clay at the northeast site corner; a later September 2005 second report showed no additional soft clay.
- Raito, a Batson-Cook subcontractor, discovered additional soft clay and notified Batson-Cook on June 1, 2006, presenting a materially differing site condition claim disputed by the city.
- March 6, 2008, Raito sued Batson-Cook for extra costs; Batson-Cook sued the city; trial resulted in mixed verdicts with Batson-Cook owing the city and Raito obtaining a verdict against Batson-Cook.
- The city appeals on multiple grounds, including recusal, trial ordering, final payment, notice timing, and bad-faith/attorney-fee issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recusal of the judge | City asserts Judge Lee should have been recused or reassigned. | Batson-Cook/City claim no legal basis for recusal due to lack of impartiality concerns. | denial of recusal upheld; affidavits insufficient to show reasonable impartiality concern |
| Trial order and realignment | Order of presenting evidence effectively realigned parties to favor Batson-Cook. | No improper realignment; structure permissible within trial court discretion. | no abuse of discretion; no realignment |
| Directed verdict on final payment | Batson-Cook should be entitled to final payment if conditions not fully met due to city’s disputes. | Batson-Cook failed conditions for final payment, independent of site-condition issues. | denial of directed verdict affirmed; issues about adjustments could affect final payment |
| Notice of materially differing site conditions | Notice timely under contract; emails and discovery evidence showed March–April 2006 awareness. | Written notice not strictly required; substantial compliance shown; timely notice disputed by city. | jury question on timeliness; not error to submit to jury |
| Bad faith/attorney fees under OCGA 13-6-11 | Evidence showed city may have acted in bad faith denying adjustment for differing conditions. | No bad faith; decision-making based on reasonable interpretations of contract terms. | jury permissible on bad-faith claim; not reversible error |
Key Cases Cited
- Vaughn v. State, 247 Ga.App. 368 (2000) (recusal/affidavit sufficiency framework)
- Sears v. State, 262 Ga.805 (1993) (impartiality considerations in recusal)
- Berryhill v. State, 235 Ga. 549 (1975) (trial court discretion in conducting proceedings)
- MARTA v. Green Intl., 235 Ga.App. 419 (1998) (evidence deemed timely notice questions for jury)
- Gillis v. City of Waycross, 247 Ga.App. 119 (2000) (affidavits raising reasonable question about impartiality; recusal)
- Choate Constr. Co. v. Ideal Electrical Contractors, 246 Ga.App. 626 (2000) (recovery limits where subcontract terms govern and changes are contested)
- Clover Cable of Ohio v. Heywood, 260 Ga. 341 (1990) (substantial compliance under statutory requirements validates suit)
- Dixie Roof Decks v. Borggren/Dickson Constr., 195 Ga.App. 881 (1990) (futile acts not required when conditions precedent disputed)
- Harris v. Tutt, 306 Ga.App. 377 (2010) (bad faith requires evidence of improper motive; generally a jury question)