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
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