Raj Laliwala v. Carlton Harris

FIFTH DIVISION
REESE, P. J.,
MARKLE and COLVIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
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October 26, 2020
In the Court of Appeals of Georgia
A20A0990. LALIWALA et al. v. HARRIS.
REESE, Presiding Judge.
Raj Laliwala and Smita Laliwala (the “Appellants”) seek review of an order of
the State Court of Cobb County granting a motion for summary judgment filed by
Carlton Harris (the “Appellee”) on the Appellants’ negligence claims arising from the
remodeling of commercial property. Specifically, the trial court found that the
Appellee did not owe the Appellants “a duty of care that would otherwise exist
legally or contractually apart from and independent of his status as a qualifying
agent.”1 For the reasons set forth infra, we affirm.
1
See OCGA § 43-41-9 (i); see also OCGA § 43-41-2 (7) (defining qualified
agent).
Viewed in the light most favorable to the Appellants, as the non-movants,2 the
record shows the following. In 2013, the Appellants purchased an old bank building
in Marietta, which they planned to convert into a restaurant called Lockdown BBQ.
They hired the Appellee’s co-defendant, Classique, LLC, to act as the general
contractor for this construction project (the “Project”). Unbeknownst to the
Appellants, neither Classique nor its owner, co-defendant Ron King, held a general
contractor’s license with the State of Georgia. The co-defendants retained the
Appellee and his company, non-party J. Harris Enterprises, Inc., to serve as the
statutory qualifying agent for the Project. In that capacity, the Appellee allowed
Classique to use his general contractor’s license to obtain permits for the Project.
After a dispute arose between the Appellants and the co-defendants, the
Appellants hired another contractor to finish the Project. The Appellants filed suit
against Classique and King, alleging breach of contract and various tort claims. The
Appellants later filed claims against the Appellee, alleging negligence, negligent
supervision, and negligence per se, and seeking attorney fees.
The trial court granted the Appellee’s motion for summary judgment, finding
that the sole duty that the Appellants alleged that the Appellee owed them was the
2
See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).
2
duty that arose by virtue of being a statutory qualified agent. The court found that
OCGA § 43-41-9 (i) precluded recovery based on that status, and that nothing in the
record suggested that the Appellee owed or assumed any other duty to the Appellants.
This appeal followed.
To prevail at summary judgment under OCGA § 9-11-56, the
moving party must demonstrate that there is no genuine issue of material
fact and that the undisputed facts, viewed in the light most favorable to
the nonmoving party, warrant judgment as a matter of law. A defendant
who will not bear the burden of proof at trial need not affirmatively
disprove the nonmoving party’s case; instead, the burden on the moving
party may be discharged by pointing out by reference to the affidavits,
depositions and other documents in the record that there is an absence
of evidence to support the nonmoving party’s case. If the moving party
discharges this burden, the nonmoving party cannot rest on its pleadings,
but rather must point to specific evidence giving rise to a triable issue.
Our review of the grant or denial of summary judgment is de novo, and
we construe the evidence and all inferences therefrom in favor of the
nonmoving party.3
With these guiding principles in mind, we turn now to the Appellants’ claim of error.
3
DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 38-39 (668 SE2d
737) (2008) (citations and punctuation omitted).
3
In related arguments, the Appellants contend that the trial court erred in finding
that the Appellee did not owe them a duty because the Appellee and his company
negligently performed and supervised work on the Project. Specifically, the
Appellants argue that the Appellee personally performed the inspections to ensure
that the Project complied with the municipal building code and would pass
inspections, yet “multiple . . . inspections failed while [the Appellee] and his company
held the permits for the renovation.”4
“[E]ssential to any claim of negligence is a duty of care[.]”5 “Such a duty can
arise either by statute or be imposed by a common law principle recognized in the
caselaw.”6
4
In support of this last statement, the Appellants cite to an exhibit to their brief
filed in response to the summary judgment motion, but none of these documents,
which appear to be computer printouts, is certified or authenticated in some other
way. This exhibit is thus not competent evidence in this summary judgment
proceeding. See Achor Center v. Holmes, 219 Ga. App. 399, 401 (1) (465 SE2d 451)
(1995). Moreover, it is unclear how these alleged inspection failures could have
created a duty that did not already exist.
5
Spivey v. Hembree, 268 Ga. App. 485, 487 (1) (a) (602 SE2d 246) (2004); see
also Seymour Elec. & Air Conditioning Svc. v. Statom, 309 Ga. App. 677, 679 (710
SE2d 874) (2011) (discussing the essential elements of a negligence claim, beginning
with the existence of a legal duty).
6
Wells Fargo Bank v. Jenkins, 293 Ga. 162, 164 (744 SE2d 686) (2013).
4
The Appellants cited to an affidavit of the contractor they hired to finish the
Project, who opined that the work that had been done on the Project was “not
performed in accordance with industry standards for commercial construction
projects.” However, they have not explained how the quality of the work performed
(or not completed) by the co-defendants created a duty on the part of the Appellee.
They argue only that “[the Appellee] and his company knowingly allowed unlicensed
contractors, [co-defendants Classique and King], to perform defective Work on the
Appellants’ Property using their permit.”
The Appellants also cite to the Appellee’s testimony regarding his duty under
his agreement with the co-defendants:
When I sign a consulting agreement to pull a permit for somebody, my
obligation is to make sure the permits are pulled, that everything that
requires an inspection through that permitting process is done correctly,
that the inspections are called in to the municipality. The municipality
comes out, looks at those things that we’re asking to be looked at and
they’re passed. So my obligation to that contract is to make sure that
permits are pulled, all of the inspections are met through the
municipalities and are passed so they can go on to the next phase up to
a completed job.
5
The Appellants do not contend that they are a third-party beneficiary of the agreement
between the Appellee and the co-defendants,7 so it is unclear how this testimony
supports the Appellants’ claim that the Appellee owed them a duty.
The Appellants argue that, as a result of personally inspecting the Property, the
Appellee had “a duty to perform his job and inspections in a workmanlike manner,
or be held personally liable for his actions.” The Appellants do not claim that the
Appellee actually performed any work on the Project,8 but instead rely on his conduct
with regard to the municipal permitting and inspection process.
7
See generally OCGA § 9-2-20 (b) (“The beneficiary of a contract made
between other parties for his benefit may maintain an action against the promisor on
the contract.”).
8
The Appellants’ reliance on Stancliff v. Brown & Webb Builders, 254 Ga.
App. 224 (561 SE2d 438) (2002), is wholly misplaced. See Cendant Mobility
Financial Corp. v. Asuamah, 285 Ga. 818, 822 (684 SE2d 617) (2009) (“To dispel
any doubt, we hold that the ‘negligent construction’ exception to caveat emptor
[applied in Stancliff] exempts from the defense of caveat emptor only a negligence
claim by a homeowner seeking recovery against the builder/seller of the home for
latent building construction defects about which the purchaser/homeowner did not
know and in the exercise of ordinary care would not have discovered, which defects
either were known to the builder/seller or in the exercise of ordinary care would have
been discovered by the builder/seller.”).
6
There is simply no evidence in the record that the Appellee assumed any duty
beyond what was included in the statutory definition of a “qualifying agent.” Under
OCGA § 43-41-2 (7):
“Qualifying agent” means a person who possesses the requisite skill,
knowledge, and experience and has the responsibility to supervise,
direct, manage, and control all of the contracting activities within the
State of Georgia of a contractor doing business in the form of a business
organization, with which he or she is affiliated by employment or
ownership; who has the responsibility to supervise, direct, manage, and
control construction activities on any project for which he or she has
obtained the building permit pursuant to Code Section 43-41-14; and
whose technical and personal qualifications have been determined by
investigation and examination as provided in this chapter, except as
exempted under Code Section 43-41-8, as attested by the division.
However, under OCGA § 43-41-9 (i):
nothing in this chapter [regulating residential and general contractors]
shall be interpreted as a basis for imposition of civil liability against an
individual qualifying agent by any owner or other third party claimant
beyond the liability that would otherwise exist legally or contractually
apart from and independent of the individual’s status as a qualifying
agent.
7
Based on this clear statutory language,9 and because the Appellants have failed to
establish any other basis to impose civil liability against the Appellee, the trial court
properly granted summary judgment in favor of the Appellee on the substantive
negligence claims against him. Accordingly, the trial court did not err in dismissing
the remaining claim for attorney fees.10
Judgment affirmed. Markle, J., concurs. Colvin, J., concurs in the judgment
only.
9
See Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003)
(“Where the language of a statute is plain and unambiguous, judicial construction is
not only unnecessary but forbidden. In the absence of words of limitation, words in
a statute should be given their ordinary and everyday meaning.”) (citations and
punctuation omitted); see also Anthony v. American Gen. Financial Svcs., 287 Ga.
448, 450 (1) (a) (697 SE2d 166) (2010) (“It is not the place of [the reviewing court]
to rewrite statutes to promote policies that are not expressed in that legislation —
much less read into a statute a policy that contradicts the text of the law and is derived
without citation to any other source.”).
10
See Popham v. Landmark American Ins. Co., 340 Ga. App. 603, 612 (4) (798
SE2d 257) (2017).
8
A20A0990. LALIWALA et al. v. HARRIS.
COLVIN, Judge, concurring specially.
The majority concludes that because defendant Harris was a “qualifying agent”
as defined in OCGA § 43-41-2 (7), and because plaintiffs’ claims against him arise
only from his “status” as such, OCGA § 43-41-9 (i), the defendant cannot be liable
for his acts or omissions while he was supervising the permit process on this
construction project. The parties have not acknowledged the absence of caselaw on
these statutes, however, and plaintiffs have cited to evidence that Harris visited and
inspected the site at least once. On this scant argument and record, I can note only
that under the majority’s rationale, the extent of OCGA § 43-41-9 (i)’s limitation on
the duties apparently imposed by OCGA 43-41-2 (7) remains fundamentally unclear.
I therefore concur in the judgment only.