ALEXANDER CONTRACTING COMPANY INC et al v. SAUER INC et al

Filing 147

ORDER denying 136 and 138 Motion for Judgment as a Matter of Law. Ordered by US DISTRICT JUDGE CLAY D LAND on 07/30/2015. (vac)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ALEXANDER CONTRACTING COMPNAY,
INC. and HYDRO-GREEN, LLC,

*
*

Plaintiffs,
*
vs.

CASE NO. 4:13-CV-449 (CDL)
*

JACOBS ENGINEERING GROUP, INC.
f/k/a JORDAN, JONES & GOULDING, *
INC.,
*
Defendant.
O R D E R
After the jury returned a verdict in favor of Plaintiffs
Alexander

Contracting

Company,

Inc.

and

Hydro-Green,

LLC,

Defendant Jacobs Engineering Group, Inc. renewed its motion for
judgment
trial.

as

a

matter

of

law

that

it

previously

made

during

For the reasons discussed below, the Court finds that

sufficient evidence was introduced at trial to support the jury
verdict.

Accordingly, Jacobs’s renewed motion is denied.

(ECF

Nos. 136, 138).
STANDARD
To grant a motion for judgment as a matter of law after a
jury has returned a verdict, the Court must find that the jury
verdict lacked any legally sufficient evidentiary basis.
Fed. R. Civ. P. 50(a) and (b).

See

“[A] district court’s proper

analysis [for a Rule 50 motion] is squarely and narrowly focused

on the sufficiency of the evidence.”

Chaney v. City of Orlando,

483 F.3d 1221, 1227 (11th Cir. 2007).

In determining whether

the evidence is sufficient, “the court must draw all reasonable
inferences

in

favor

of

the

nonmoving

party.”

Reeves

v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
BACKGROUND
This action arose from a dispute involving a construction
project at Fort Benning, an Army base in Columbus, Georgia.

The

United States Army Corps of Engineers contracted with Sauer,
Inc. to build roads upon which large trucks hauling tanks and
other heavy equipment (referred to as “heavy equipment transport
vehicles”) would travel.

Sauer hired Jacobs, an engineering

firm, to design the roads.
and

Alexander

ultimately

Sauer solicited subcontractor bids,
won

the

contract.

process, Alexander received designs from Jacobs.
the designs to calculate its bid.

During

the

bid

Alexander used

The designs represented that

the pavement should be 4.5 inches thick.
Sauer

later

replaced

Alexander

with

Hydro-Green,

a

construction company owned by a disabled veteran, in an attempt
to meet a disabled veteran quota.

Under this new arrangement,

Hydro-Green was a subcontractor and Hydro-Green hired Alexander
as

its

sub-subcontractor.

Hydro-Green

handled

the

administrative matters and insurance while Alexander performed
most of the construction work.

2

Since Hydro-Green came into the project late, it did not
directly

review

Jacobs’s

designs.

Instead,

Hydro-Green

CEO

Coleman Reeves testified that he adopted Alexander’s contract
price,

which

Alexander

calculated

based

on

Jacobs’s

designs.

Trial Tr. vol. I 104:6-10, ECF No. 131.
Plaintiffs presented evidence that after they entered into
contracts with Sauer, they learned that they would have to pave
six-inch thick roads, instead of 4.5-inch thick roads.

The

pavement had to be thicker than Jacobs originally represented
because Jacobs’s initial designs did not account for the Corps
of Engineers’ instruction to pave roads that could withstand
traffic from ten heavy equipment transport vehicles per day.
Trial Tr. Vol II 171:2-6, ECF No. 132.

Alexander and Hydro-

Green presented evidence that together they spent approximately
$500,000 building thicker roads.

When Sauer did not compensate

them for the increased cost of the thicker pavement, they filed
this action against Jacobs and Sauer to recover their damages
caused by the change in the design from 4.5 inches to 6 inches.
Plaintiffs
trial

and

settled

proceeded

misrepresentation.

their

to

claims

trial

against

against

Jacobs

Sauer
for

prior

to

negligent

At trial, Alexander presented evidence that

Jacobs knew that the road needed to be more than 4.5 inches
thick but negligently represented to Alexander that 4.5 inches
of pavement was adequate.

Alexander also presented evidence

3

that

it

relied

to

its

detriment

on

Jacobs’s

representation.

Jacobs engineer Joe Johnson testified that he knew that the
Corps of Engineers required that the road be able to support ten
heavy equipment transport vehicles per day, but he found that
requirement

“odd”

and

essentially

ignored

it

when

he

Alexander to base its bid on a thickness of 4.5 inches.
32:8-17.

Jacobs

introduced

evidence

that

before

told

Id. at

Alexander

entered its contract with Sauer, Alexander was courtesy copied
on an email from the Corps of Engineers to Sauer and Jacobs
stating
pavement

that

the

design

plans

were

was

not

thick

enough

to

vehicles per day.

unacceptable
accommodate

because

ten

the

transport

The president of Alexander, Lon Alexander,

testified that the company did not know how much thicker the
pavement would have to be to withstand ten trips per day, or how
much it would cost to pave thicker roads.

Alexander simply

relied on Jacobs’s representation that the roads were to be 4.5
inches thick when it entered into the contract with Sauer to
pave the roads.
The

jury

found

in

Alexander $357,664.95 and

favor

of

Hydro-Green

Plaintiffs,
$114,311.68

and

awarded

in damages.

Jacobs now asks the Court to overturn the jury’s verdict and
enter judgment in Jacobs’s favor.

4

DISCUSSION
Jacobs argues that it is entitled to judgment as a matter
of law because: (1) Alexander and Hydro-Green’s claims are for
professional negligence and they did not present evidence that
Jacobs deviated from the standard of care required of similarly
situated professionals, (2) Alexander did not reasonably rely on
Jacobs’s

representations,

and

(3)

Hydro-Green

was

not

a

foreseeable person and did not rely on Jacobs’s representations.
The Court addresses each argument in turn.
I.

Evidence of Professional Negligence
Jacobs

contends

that

Plaintiffs

professional

negligence.

Plaintiffs

respond

they

have

alleged

claim

negligent

misrepresentation,

not

professional

negligence,

evidence

support

to

and

that

that

claim.

to

they
The

present
that

presented
Court

proof

for

negligence

for

failed

claims

professional

a

and

assert

of

sufficient

agrees

with

Plaintiffs.
The law in Georgia is simple:

just because a negligence

claim is asserted against a professional does not automatically
make it a claim for professional negligence, which typically
requires expert testimony to sustain.

Ambrose v. Saint Joseph’s

Hosp. of Atlanta, Inc., 325 Ga. App. 557, 558-59, 754 S.E.2d
135, 137 (2014) (emphasis added) (“Whether an action alleges
professional negligence or simple negligence depends on whether

5

the professional's alleged negligence required the exercise of
professional

judgment

and

skill”).

Expert

testimony

required for claims involving ordinary negligence.

is

not

McGarity v.

Hart Elec. Membership Corp., 307 Ga. App. 739, 746, 706 S.E.2d
676, 682 (2011) (“[S]ome acts performed by professionals are
acts

of

expert
other

simple

negligence

evidence.”).
hand,

allege

which

Professional
that

the

would

not

require

negligence

professional

proof

claims,

deviated

by

on

the

from

the

standard of care applicable to similarly situated professionals,
and expert testimony as to the standard of care and deviation
from it is generally required.
879,

885

(11th

Cir.

2012)

Botes v. Weintraub, 463 F. App’x
(per

curiam)

(“Wherever

it

is

necessary to establish the parameters of acceptable professional
conduct in order to prove negligence or breach for failure to
perform

in

a

workmanlike

manner,

the

case

must

be

deemed

a

professional malpractice case.”); Roebuck v. Smith, 204 Ga. App.
20,

21,

418

S.E.2d

165,

166

(1992)

(defining

professional

malpractice as involving “highly specialized expert knowledge
with respect to which a layman can have no knowledge at all”);
Razete v. Preferred Research, Inc., 197 Ga. App. 69, 69, 397
S.E.2d 489, 490 (1990) (“[W]here . . . the plaintiff can prove
negligence . . . without

proof

of

a

customary

procedure

and

violation of it, the case is not a professional malpractice
case.”).

6

Here,

Plaintiffs

did

not

claim

that

exercise professional judgment or skill.

Jacobs

failed

to

At trial, the engineer

who “essentially ran the office for Jacobs in Columbus,” Joe
Johnson, testified that he was aware that the Corp of Engineers
instructed
pavement

bidders—including

thick

enough

to

Jacobs

withstand

traffic

equipment transport vehicles per day.
11.

(via

Sauer)—to
from

ten

design
heavy

Trial Tr. vol. II 9:10-

But he disregarded this instruction because he thought it

was “odd.”

Id. at 32:8-17; id. at 44:18-45:1 (answering the

following question in the affirmative: “You would agree with me
that the way you came up with the 4-1/2 inches has nothing
whatsoever to do with the government’s statement that you should
tell bidders to assume ten [transport vehicles]”); id. at 45:69.

Moreover, the 4.5-inches representation was not based on

engineering calculations.

At trial, Johnson was asked: “When

you came up with the 4.5-inch thickness, you weren’t suggesting
that that was sufficient to support ten [transport vehicles] a
day.”

Id. at 48:14-21.

yes.”

Id. at 48:22

Johnson responded: “That’s correct,

Instead of using engineering calculations

to arrive at the 4.5-inch

number,

Johnson testified that he

derived the number from a previous unrelated project.

Id. at

45:14-47:2.
In sum, the issue before the jury was not whether Jacobs
accurately performed its engineering

7

calculations or designs.

Instead,

the

jury had to decide

Corps’ instructions.

whether Jacobs followed the

Jacobs’s engineer clearly testified that

he did not follow the Corps of Engineers’ instructions.

“This

is not a case as to which a layman can have no knowledge at all,
and the court and jury must be dependent on expert evidence.”
Roebuck, 204 Ga. App. at 21, 418 S.E.2d at 167.
therefore,

concludes

that

Plaintiffs’

claims

The Court,

were

not

for

professional negligence and that Plaintiffs were not required to
introduce

evidence

that

Jacobs

committed

professional

negligence.
II.

The Reasonableness of Alexander’s Reliance
Jacobs

also

contends

that

Alexander

did

not

justifiably

rely on Jacobs’s representations because Alexander knew that the
design

for

contract

the

pavement

anyway.

would

William

change

Holle,

the

and

entered

project

into

the

manager

for

Alexander, testified that Alexander received an email about two
months

before

Alexander

signing

that

its

Jacobs’s

contract
original

with

Sauer

pavement

notifying

design

could

accommodate only two, instead of ten, heavy equipment transport
vehicles per day.
email,

Holle

Trial Tr. vol. II 156:7-13.

testified

that

he

“could

Based on this

reasonably

expect

that . . . there was going to be a change and it would cost more
money” but that he “didn’t know what” that change would be.
at 157:25-158:19.

Id.

Jacobs argues that the email put Alexander on

8

notice that the pavement design was going to change.

Jacobs

contends that Alexander failed to exercise due diligence when it
did not follow up with Sauer and Jacobs on the impact this
change might have on the contract price.
Evidence was also introduced, however, that Alexander was
unaware what effect, if any, the change from two to ten heavy
equipment

transport

thickness.

vehicles

would

have

on

the

pavement

Holle testified that Alexander was unsure how much

thicker the pavement needed to be to accommodate ten transport
vehicles per day.

Id. at 173:4-13.

Holle also testified that

Alexander did not know that the pavement would have to be six
inches thick, instead of 4.5 inches thick, until after Alexander
entered its contract with Sauer.

Id. at 171:2-6.

The president

of Alexander Contracting, Lon Alexander, also testified that he
did not know how much thicker the pavement would have to be to
accommodate

the

increased

traffic

from

transport

vehicles.

Trial Tr. vol. I 59:1-7.
The

Court

acknowledges—as

it

did

when

Jacobs

made

its

motion for judgment as a matter of law at trial—that conflicting
evidence exists on the reasonableness of Alexander’s reliance.
Such conflicts are to be resolved by a jury and not by this
Court as a matter of law.

The jury decided that Alexander

justifiably relied on Jacobs’s representations, and the record
contains sufficient evidence to support that conclusion.

9

The Court notes that Jacobs makes two new arguments in its
post-trial motion for judgment as a matter of law that it did
not raise in its motion for judgment as a matter of law at
trial.

First,

misrepresent
original

Jacobs

anything

pavement

transport vehicles
designs

were

argues

because

design
per

merely

designs

did

not

claimed

that

the

sustain

Second,

“opinions”

its
never

Jacobs

would

day.

misrepresentation claim.

that

that

traffic

from

ten

Jacobs argues that its
cannot

give

rise

to

a

Given Jacobs’s failure to make either

of these arguments in its motion for judgment as a matter of law
at trial, the Court is not obligated to consider them now.

U.S.

Sec. & Exch. Comm’n v. Big Apple Consulting USA, Inc., 783 F.3d
786, 813 (11th Cir. 2015) (“[A] party may renew its Rule 50(a)
motion after trial under Rule 50(b), but a party cannot assert
grounds in the renewed motion that it did not raise in the
earlier motion.”).
Even

if

the

Court

were

arguments,

the

Court

finds

engineer,

Joe

Johnson,

to

reach

them

the

merits

of

unpersuasive.
that

he

Jacobs’s
knew

that

subcontractors like Alexander would rely on his designs.

Trial

Tr. vol. II 44:5-12.

testified

these

He also testified that he knew that the

Corps of Engineers instructed bidders to base their pavement
designs on traffic from ten transport vehicles per day.
45:2-9.

Finally,

he

testified

10

that

Jacobs

never

Id. at
informed

Alexander that it disregarded the Corps’ instructions.
47:3-9.
he

Id. at

The president of Alexander Contracting testified that

believed

the

government’s

4.5

inches

took

instructions.

into

Trial

account

Tr.

vol.

all
I

of

the

57:8-58:1.

Sufficient evidence exists for a reasonable jury to conclude
that Jacobs made false representations regarding the pavement
thickness

and

that

Plaintiffs

reasonably

and

detrimentally

relied on that representation.
III. The Reasonableness of Hydro-Green’s Reliance
Jacobs argues that Hydro-Green did not present evidence at
trial that would allow a reasonable juror to conclude (1) that
Hydro-Green was a person who Jacobs would reasonably foresee
would

rely

on

its

representations

or

(2)

reasonably relied on Jacobs’s representations.

that

Hydro-Green

See Next Century

Commc’ns Corp. v. Ellis, 318 F.3d 1023, 1029 (11th Cir. 2003)
(per

curiam)

(explaining

misrepresentation

claim

the

under

elements
Georgia

of

a

law).

negligent
The

Court

disagrees.
Jacobs argues that Hydro-Green is not a foreseeable person
because Hydro-Green did not exist at the time Jacobs made its
representations
“actually

to

aware”

Alexander
that

and

therefore

Hydro-Green

11

would

Jacobs

was

not

rely

on

its

representations.1
Matter

of

required

Law
to

Mem. of Law in Supp. of Mot. for J. as a

17,

prove

ECF
that

No.

138-2.

Jacobs

knew

would rely on its representations.

But

Hydro-Green

Hydro-Green

was

not

specifically

Ellis, 318 F.3d at 1029

(citing Hardaway Co. v. Parsons, Brinckerhoff, Quade & Douglas,
Inc., 267 Ga. 424, 426, 479 S.E.2d 727, 729 (1997)) (“[T]he tort
of negligent misrepresentation consists of . . . the defendant’s
negligent supply of false information to foreseeable persons,
known or unknown . . . .”) (emphasis added).

Hydro-Green only

had to prove that it was within the class of persons for whom
the information was intended.

See Badische Corp. v. Caylor, 257

Ga. 131, 133, 356 S.E.2d 198, 200 (1987) (“[L]iabilty is limited
to [the] limited class of persons for whom the information was
intended, either directly or indirectly.”).

Sufficient evidence

exists for the jury to have concluded that Hydro-Green was a
subcontractor

and

that

Jacobs

rely on its representations.

knew

that

subcontractors

would

Trial Tr. vol. II 22:6-11.

Jacobs also argues that Hydro-Green did not rely on its
representations because Hydro-Green came into the construction
project late and did not review Jacobs’s designs.

In essence,

Jacobs contends that Hydro-Green had to directly rely on its
representations.

But Georgia law permits a plaintiff to prove

1

The parties presented conflicting evidence at
whether Hydro-Green existed when Jacobs initially
pavement thickness to Alexander.

12

trial regarding
represented the

negligent misrepresentation using evidence of either direct or
indirect reliance.

See Robert & Co. Assocs. v. Rhodes-Haverty

P’ship, 250 Ga. 680, 681, 300 S.E.2d 503, 504 (1983) (“This
liability is limited to a foreseeable person or limited class of
persons for whom the information was intended, either directly
or indirectly.”).

Indirect reliance occurs when a plaintiff

relies on representations the defendant made to an intermediary.
See, e.g.,

Squish La Fish, Inc. v. Thomco Specialty Prods.,

Inc., 149 F.3d 1288, 1291 (11th Cir. 1998) (reversing a district
court

for

relied

determining

on

the

that

a

plaintiff

defendant’s

had

not

misrepresentations

sufficiently
because

the

misrepresentation were made to an intermediary rather than the
plaintiff directly).
Hydro-Green presented evidence that Jacobs gave designs to
Alexander

during

the

bid

process

and

that

Alexander

Jacobs’s drawings to calculate its contract price.

used

Trial Tr.

vol. I 59:8-10 (testifying that Jacobs instructed Alexander to
build 4.5-inch thick pavement).

Hydro-Green CEO Coleman Reeves

testified that Hydro-Green relied on Alexander’s contract price
to

form

evidence,

its
a

own

price.

reasonable

Id.
jury

at

could

104:6-10.
conclude

Based
that

on

this

Hydro-Green

relied on the representations Jacobs made to Alexander.2

2

Jacobs also argues that Hydro-Green failed to prove the elements of
justifiable reliance or damages because it did not perform the work on

13

CONCLUSION
Sufficient evidence was presented at trial to support the
jury verdict.

Therefore,

Jacobs’s motion

for judgment as a

matter of law (ECF Nos. 136, 138) is denied.
IT IS SO ORDERED, this 30th day of July, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

the construction project itself.
The Court is unpersuaded by this
argument.
Hydro-Green presented evidence that because of its
reasonable reliance on the misrepresentation as to the thickness of
the road, it had to compensate its sub-subcontractor (Alexander) for
the additional cost of paving thicker roads.

14