Petition for Writ of Certiorari — City of Macon v. Pasco Building Systems

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No. 88-___

In The | “ i...

Supreme Court of the United States

October Term, 1988

THE CITY OF MACON, GEORGIA,

Petitioner,

PASCO BUILDING SYSTEMS, a Division of

AMCORD, INC., and DELTA ASSOCIATES, INC.,

Respondents.

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ON WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF GEORGIA

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PETITION FOR CERTIORARI

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WILLIAM MEADE Burns, Jr.

Counsel of Record

LONG, WEINBERG, ANSLEY & WHEELER

Suite 2700

999 Peachtree Street, N.E.

Atianta Georgia 30309

(404) 876-2700

Dan B. WINGATE

LONG, WEINBERG, ANSLEY & WHEELER

Suite 2700 \

999 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 876-2700

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

May a state court, by its definition of that state’s rule

of res judicata, nullify the scope and effect of the Federal

Rules of Civil Procedure by concluding, in a subsequent

state ruling, that certain claims which could have been

asserted in a concurrently pending federal action as per-

missive cross-claims are barred by the election of a party

(to the federal action) not to assert such permissive cross-

claims in the federal action, when the subject of the cross-

claim is the basis for a separate party’s direct action in a

state court?

May a State court obviate the clear dictate of Federal

Rule of Civil Procedure 13(g) and convert permissive

cross-claims into a form of mandatory cross-claim, to the

prejudice of a state court litigant which was not a party to

the federal proceeding, by the formulation of the state

court’s definition of res judicata, all contrary to clear fed-

eral authority which construes the Federal Rules of Civil

Procedure? See Answering Service, Inc. v. Egan, 728 F.2d

1500, 1503 (D.C. Cir. 1984); Dunn v. Sears, Roebuck & Co.,

645 F.2d 511, 512-13 (5th Cir 1981) (f.n. 1); Peterson v.

Watt, 666 F.2d 361, 363 (9th Cir. 1982).

The City of Macon does not raise in this Petition all

issues which were before the lower courts, such as waiver

by the Defendants or estoppel, but has instead limited

this Petition to the federal questions presented.

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PARTIES

All parties to the appeal and other proceedings below

are listed in the above caption.

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TABLE OF CONTENTS

Page

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Samemmeoms OF JURISDICTION.............000055 2

CONSTITUTIONAL AND STATUTORY PROVI-

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ARGUMENT OF LAW AND CITATION OF

A er es ee eres eee 17

An election by a party in a federal action not to

pursue a permissive Cross-claim has no res judi-

cata effect, and the verdict and judgment in the

prior federal action has no prejudicial effect

upon the City of Macon’s claim............... 17

|G” GES er ae err eee reer Tr 20

iv

TABLE OF AUTHORITIES

Answering Service, Inc. v. Egan, 728 F.2d 1500, 1503

2 a Se | err Tere eer re Terre errs

Augustin v. Mughal, 521 F.2d 1215, 1216 (8th Cir.

PE re era re te TE eC een

Citizens Exchange Bank of Pearson v. Kirkland, 256

oa. 71, S40 SE.2n GOP (ISR) ow. cela caccss.

Dunn v. Sears, Roebuck & Co., 645 F.2d 511, 512-13

oo) Aas Be ke ee) ere er eee rer

Erie Railroad Company v. Tompkins, 304 U.S. 64, 82

LEG. 2108, SB SA. SIF CUSSED. xy cena sss een

Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14

Se Oe @ CUGERY oo coc vce usacsnurs 13,

Independent Manufacturing Company, Inc. v. Auto-

motive Products, Inc., 141 Ga. App. 518, 520, 233

ee ee EE os ose SA Rae

Peterson v. Watt, 666 F.2d 361, 363 (9th Cir. 1982)...

Reeves Transportation Co. v. Gamble, et. al., 126 Ga.

App. 165, 167, 190 S.E.20 95 (1972) .....5..65..

Thomson-CSF Components Corp. v. Hathaway Instru-

ments, Inc., 85 F.R.D. 344, 346 (D.C.N.J. 1980) .

.14, 18

No. 88-___

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In The

Supreme Court of the United States

October Term, 1988

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THE CITY OF MACON, GEORGIA,

Petitioner,

PASCO BUILDING SYSTEMS, a Division of

AMCORD, INC., and DELTA ASSOCIATES, INC.,

Respondents.

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PETITION FOR CERTIORARI

OPINION BELOW

The opinion of the Court of Appeals of Georgia has

not yet been published, either in bound volume or in

advance sheet format. A copy of the Opinion of the Court

of Appeals, as issued in slip form, is reproduced in the

Appendix at A-1. Petitioner, as Appellant below, moved

for a rehearing with regard to that Opinion; the Order of

The Court of Appeals of Georgia, denying that Motion for

Rehearing before that Court, is reproduced at A-6. A

summary of Petitioner’s unsuccessful efforts to have the

case reviewed by the Supreme Court of Georgia is set out

below in the Statement of Jurisdiction.

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STATEMENT OF JURISDICTION

The Opinion of the Court of Appeals of Georgia,

reproduced at A-1, was rendered on March 8, 1989. The

City of Macon filed a timely Motion for Rehearing on

March 17, 1989, and the Court of Appeals denied that

Motion for Rehearing by Order entered March 27, 1989

(A-6). The Court of Appeals of Georgia is the highest

Georgia Court to which the City of Macon could appeal

as a matter of right; the Supreme Court of Georgia

reviews decisions of The Court of Appeals of Georgia as a

matter of discretion, by certiorari. Constitution of the

State of Georgia, Article VI, Section VI, Paragraph V. The

City of Macon filed its Petition for the Writ of Certiorari

to the Supreme Court of Georgia on April 14, 1989, which

was denied by Order entered May 4, 1989. (A-7). The City

of Macon moved for a rehearing of the decision to deny

its Petition, and that later Motion was also denied. (A-8).

That denial was the last action taken by any Georgia

court in the proceedings below, and there are no further

and available appeals to any other Georgia court. Thus,

the Opinion of March 8, 1989, by the Court of Appeals of

Georgia represents a decision by the “highest court of the

State in which a decision could be had” with regard to

The City of Macon’s rights. 28 U.S.C. 1257(a).

Jurisdiction for The City of Macon’s Petition to this

Court therefore lies under 28 U.S.C. § 1257(a), and this

Petition is filed and served within ninety days of the

entry of the Order of March 27, 1989, which denied

Petitioner’s Motion for Rehearing below. 28 U.S.C.

§ 2101(c); Supreme Court Rule 20.4. As Petitioner seeks

the reversal of a decision of a state court, rather than the

invalidation of any statute, Petitioner submits that the

notification requirements of 28 U.S.C. § 2403(b) do not

apply.

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CONSTITUTIONAL AND STATUTORY PROVISIONS

AT ISSUE

1. The Constitution of the United States, Article VI,

provides in pertinent part:

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“This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.”

2. The Rules Enabling Act, 28 U.S.C. § 2072, provides in

pertinent part:

“The Supreme Court shall have the power to

prescribe by general rules, the forms of process,

writs, pleadings, and motions, and the practice and

procedure of the district courts and courts of appeal

of the United States in civil actions... ”

* * *

“All laws in conflict with such rules shall be of

no further force or effect after such rules have taken

effect.”

3. Federal Rule of Civil Procedure 13(g) provides:

“A pleading may state as a cross-claim any claim

by one party against a co-party arising out of the

transaction or occurrence that is the subject matter

either of the original action or of a counterclaim

therein or relating to any property that is the subject

matter of the original action.”

4. Georgia laws 1962, pp. 2323 et. seq. (establishing the

Macon-Bibb County Industrial Authority) provides in

pertinent part:

* * *

“Section 1. There is hereby created a public body

corporate and politic in the County of Bibb to be

known as the ’Macon-Bibb County Industrial Author-

ity,’ which shall be an instrumentality of the City of

Macon and of the County of Bibb... ”

* * *

“Section 5. The Authority shall not be authorized

to, nor shall any, act thereof,.create any debt, obliga-

tion or liability against the State of Georgia or City of

Macon or County of Bibb.”

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STATEMENT OF THE CASE

STATEMENT OF FACTS

This case arises from the sudden destruction by col-

lapse of an airplane hangar at the City of Macon’s airport.

The hangar had been built “on behalf of” The City (Com-

plaint, J 3) and was occupied by Zantop Airlines. As a

result of the calamity, two lawsuits were filed. Zantop

sued a number of defendants for the loss of two Lock-

heed Electra Aircraft, commencing its action in the U.S.

District Court in Columbus, Georgia. The City of Macon

sued for the loss of the hangar itself in a separate action

brought by it in a state court. The resolution of the

concurrent federal action and the interpretation placed on

that resolution by the Georgia courts give rise to this

Petition.

The factual background to this case and the roles

played by certain parties and non-parties account in large

measure for the procedural issues which are presented.

Petitioner’s efforts to raise and have the Georgia courts

address the federal question which is presented here will

be summarized at the conclusion of this Statement of

Facts.

Much of the history of the underlying transaction

was developed in the deposition of Tom Moody, the

Executive Director of the Macon-Bibb County Industrial

Authority; that deposition was obtained in the federal

litigation and was offered also as evidence on the

Motions which pended in the Georgia trial court. The

background facts are not controversial and will be pre-

sented here in summary form.

Following World War I, the City of Macon acquired

much of the property which now serves as its airport

from the federal authorities. Expansion and development

of the airport had been ongoing since that time, and the

Defendant Delta Associates served generally as the City’s

planners and consultants with regard to the airport.

About 1978, the City of Macon, acting primarily

through the office of the Mayor, undertook to make addi-

tions and improvements to the airport, primarily in the

east ramp area. One of the mechanisms for funding these

repairs or improvements was a grant program adminis-

tered by the Economic Development Administration of

the U.S. Government.

In the course of pursuing this funding option, it was

apparently learned that the program’s guidelines

required the City to have a commitment from some per-

son or entity to use the facility to be constructed, provide

jobs there, etc. Therefore, while exploring the possibility

of federal funding, the Mayor was also working with

Hawaiian Airlines, a freictht airline, in an effort to get

Hawaiian committed to establishing an air cargo opera-

tion at the hangar which the City wished to build.

After some time, the negotiations with Hawaiian and

the negotiations with the Economic Development Admin-

istration produced an agreement whereby Hawaiian

would locate its air cargo operation at the new hangar,

pursuant to the agreed upon terms, if the City would

build and make available the hangar which it wished to

have. The grant program required some local funding,

and it was determined that the Macon-Bibb County

Industrial Authority (the “MBIA”) would be the “financ-

ing conduit” (R-309) by issuing revenue bonds which

would pay for the construction of the hangar and the

related, attached office building.

(As a digression, it should be explained that the

Macon-Bibb County Industrial Authority was established

by special statute in 1962, and has, as its name implies,

the purpose of promoting economic growth and develop-

ment and the reduction of unemployment. Georgia Law

1962, pp. 2323-29. Georgia law generally prohibits local

governments from incurring any long-term debt, and

such independent “authorities” are frequently established

or used for special projects or purposes which either

require the incurring of debt or which are financed by the

issuance of revenue bonds.)

It would appear that the financing mechanism cho-

sen, from the standpoint of selling and rating the bonds,

contemplated that title to the hangar would be recited to

lie with the Authority, until the bonds were retired. At

that time, the formality of title would return to the City.

However, even during the period of time that title was

recited to be in the Authority, which would act as a

“landlord” to lease the hangar, the City in fact retained all

practical attributes, rights, and responsibilities of owner-

ship. Thus, it will be seen that the City set out to build

itself a hangar, it obtained bond and grant financing for

the hangar, it permitted the hangar to be rented to the

City’s selected tenant (which lease was later assigned to a

successor sub-tenant, Zantop), and it retained all the

rights and responsibilities of ownership and would ulti-

mately have the “paper” title as well. As will be dis-

cussed below, the mere recital regarding title should be of

no moment to a resolution of the claims between the

parties before this Court, in the context of the prior case

having pended in a federal court governed by the Federal

Rules of Civil Procedure.

By way of further explanation and orientation, it

should be noted that the hangar or project at issue is

really two different buildings or areas and types of con-

struction. With regard to the claims at issue below, the

main hangar itself is a prefabricated type metal building,

having dimensions of approximately 120 feet x 220 feet.

This pre-designed or pre-fabricated metal hangar was

manufactured by the co-defendant Pasco. The second

area is the office and related portions of a “stick-built” or

custom constructed building which is approximately 30

feet x 220 feet and which abutted and was attached to the

east wall of the hangar.

Delta Associates generally serves as the City’s airport

consultants and planners. With regard to this particular

project, however, a specific consulting contract was

entered with Delta which was in the name of the City of

Macon; however, a later version listed the Authority as

the party to the contract. (This apparently reflected the

bond financing requirements and the fact that income

and disbursements would be made to and from the

Authority’s account.) Thus, certain of the various con-

struction-related contracts also refer to the Authority as

having the capacity of “owner.”

It should be noted that the Authority, in acting to

promote industrial development in both Bibb County and

the City of Macon, has essentially no assets. In limited

aspects, the Authority might be permitted to act as an

agent for either the City or the County, but the Authority

is proscribed by statute from taking any action which

would create a liablity against either. Georgia Laws 1962,

pp. 2323, 2325-26.

Because the Summary Judgment which was entered

against Petitioner at the trial court level was on a purely

procedural ruling, and because the resolution of the fed-

eral question and Supremacy Clause issues presented

here does not turn upon a determination of whether the

Respondents, as defendants below, were in fact negligent,

a lengthy history of the design and construction phases of

the hangar project will not be offered. It is sufficient to

say that Delta Associates established the general specifi-

cations and standards which the hangar was to meet,

including its ability to withstand windstorms, regardless

of whether Delta was acting on behalf of the City, the

Authority, or both. Similarly, Pasco, as the manufacturer

of metal buildings, undertook to design and fabricate the

structural and other components of the hangar, according

to the specifications or standards set by Delta. Because of

the events which ultimately transpired, there are

numerous questions of fact concerning whether the

proper standards were set, the validity of design assump-

tions which were made in the process of writing the

specifications, and whether Pasco’s hangar was ade-

quately engineered or fabricated to meet the

specifications.

Construction of the hangar was completed in the

general time period of 1979-80. Upon completion, and

pursuant to the City’s plan for acquiring, funding, and

constructing the hangar, Hawaiian Airlines began operat-

ing from there. This operation was later terminated, for

reasons not pertinent here. However, another freight air-

line was located (Zantop Airlines) which essentially took

over Hawaiian’s location and conducted similar opera-

tions. This assignment or sublease to Zantop was with the

express consent of the City, which right was reserved to

the City under its agreement with the Authority. Zantop

undertook and pursued its operations there beginning in

approximately the fall of 1980.

On March 21, 1982, the hangar was destroyed in a

sudden and calamitous collapse, as a thunderstorm

moved through central Georgia. By coincidence, the air-

port’s anemometer was located very near the hangar, in

the path of the approaching winds. The highest wind

speed recorded was a gust of approximately 69 mph,

significantly less than the 100 mph standard required by

Delta’s specifications and local codes.

As the storm apprceached, Zantop’s employees hap-

pened to be working in or around the building, on two

Lockheed Electra aircraft. They attempted to close the

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doors of the hangar, but they were unable either to close

the doors or keep them closed. Of special note, no adjoin-

ing buildings were destroyed, nor was the connecting or

adjacent “stick-built” office building damaged, with the

exception of some damage caused by the collapse of the

hangar itself.

The collapse of the hangar caused damage to the

City, with regard to certain payments which it was

required to make while the hangar was not occupied, as

well as the clean-up costs, the disruption at its airport,

etc. In addition, the tenant, Zantop Airlines, had two

large airplanes in the hangar at the time of the collapse,

which were essentially destroyed.

Zantop Airlines and its insurer sued a number of

parties in the United States District Court, Middle District

of Georgia, Columbus Division, for the damages which

Zantop suffered when the hangar collapsed on its two

airplanes. (There were additional damages sought, such

as damage to the parts inventory, etc.) That action

included as defendants a number of the construction-

phase related parties, such as the general contractor, cer-

tain subcontractors, and others. The City of Macon was

not named as a party to that suit, although the Authority

was named as a defendant, because of its obligations (as

landlord) to Zantop through the lease-sublease

arrangement.

Within a few months of the filing of the federal action

in Columbus, the City of Macon filed its case in the

Superior Court of Fulton County, in April, 1984. The

City’s case was premised upon the facts that the hangar

was built for the City and that the City had incurred

1]

damages as a result of the destruction of the hangar, the

need for cleanup and rebuilding, lost rental, etc. A copy

of the City’s Complaint is reproduced at A-12.

The two cases pended concurrently for an extended

period of time. Within the context of the federal action,

the Authority filed the usual, almost obligatory, cross-

claim for contribution or indemnity against its co-parties;

at no time did the Authority ever seek compensation for

the damage to the hangar itself or any of tie related

losses. The two cases were allowed by all parties in each

case to be litigated concurrently, with «tensive discovery

being obtained, expert witnesses bung engaged, the

expert witnesses of other parties being deposed, and the

like. Depositions conducted jointly, for example, included

weather bureau employees in Macon, Georgia, as well as

the Defendants’ “wind expert”, Dr. Theodore Fujita,

whose deposition was taken at his offices at the Univer-

sity of Chicago. The City had also shared, at substantial

expense, in underwriting the cost of an outside engineer-

ing analysis, the preparation of a computer model of the

building, and the like.

While this case continued to pend in the Superior

Court of Fulton County, and as the federal action was

being prepared for trial, certain of the Defendants in that

case were dropped from that action, either voluntarily or

as a result of various parties’ Motions for Summary Judg-

ment not being opposed by the Plaintiff therein. Trial of

the Zantop case began in March, 1987, before the Honor-

able Kcbert Elliott, United States District Judge. At the

close of the evidence, counsel for the Authority moved

for a directed verdict, which was granted upon all claims

based upon negligence. The only issue remaining against

12

the Authority was its potential liability as a landlord, to

its subtenant, Zantop, under general principles of land-

lord-tenant law and/or its contractual obligations under

the lease.

As it was apparently recognized that the Authority

could have no liability to its sub-tenant without there also

being liability on the part of Delta Associates and/or

Pasco, the Court and all counsel in the federal litigation

expressly agreed that issues concerning the Authority’s

potential liability did not need to be submitted to the jury.

The trial] was concluded by a general verdict in favor

of all defendants, which mooted any issue of the potential

liability of any co-defendant under the Authority’s cross-

claim for contribution and/or indemnity. Thus, the jury

was never called upon, and never had occasion, to decide

any issues concerning the Authority’s obligations or

rights.

Subsequent to the return of that jury verdict, which

the Plaintiff therein elected not to appeal, Pasco’s counsel

in this action (which firm also represented Pasco in the

federal litigation) filed a Motion for Summary Judgment

in, August, 1987, contending that the Authority’s election

not to pursue a cross-claim in the district court precluded

the City of Macon’s direct claim for its own damages in

the Superior Court of Fulton County. This position was

urged without any evidence to support the proposition

that the Authority was authorized to act for the City or

assert the City’s legal rights.

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Because of this Court’s Rule 21.1(h), a somewhat

more detailed history of the proceedings below, subse-

quent to the filing of Pasco’s Motion for Summary Judg-

ment, will be offered. That Motion was based upon a

recent decision by the Supreme Court of Georgia, in

which the Court had ruled that a Plaintiff’s claim, as

asserted in an action brought in a superior court, was

barred because of the party’s failure to assert that claim

as a permissive cross-claim in a prior action involving the

same party. See Citizens Exchange Bank of Pearson v. Kirk-

land, 256 Ga. 71, 344 S.E.2d 409 (1986). The Georgia courts

thus seem to treat all cross-claims as compulsory.

In responding to the Motion for Summary Judgment,

which was later adopted by reference by the co-defen-

dant Delta Associates, Inc., (the consulting engineers and

planners for the hangar and the airport), the Plaintiff

responded with an initial Brief and a Supplemental Brief

filed and served December 15, 1987. In its Brief of Decem-

ber 15, 1987, at pages 3 through 10, Plaintiff cited the

Rules Enabling Act (28 U.S.C. § 2072), the Supremacy

Clause, and Hanna v. Plumer (as well as other authorities)

for the proposition that Georgia law could not be used to

invalidate the clearly permissive nature of cross-claims in

a federal proceeding as determined by the Federal Rules

_ of Civil Procedure. See Hanna v. Plumer, 380 U.S. 460, 85 S.

Ct. 1136, 14 L.Ed.2d 8 (1965).

In addition to briefing that issue, the point was

raised before the trial court during oral argument on the

Motion for Summary Judgment on November 12, 1987.

As counsel informed the trial court, “We have to look at

federal law to determine what is the effect of asserting or

not asserting a cross-claim in federal case, [sic] and the

14

effect is clearly none. The federal law uniformly recog-

nizes that a cross-claim of this nature is permissive at

best.” (Transcript of November 12, 1987, hearing at p. 21).

Notwithstanding the clear reference to federal law

and the authorities which have established that cross-

claims in a federal action are permissive, the Superior

Court of Fulton County, Georgia, granted the Defendants’

Motions for Summary Judgment by an Order entered

January 25, 1988, a copy of which is reproduced at A-9.

The City thereafter took its appeal to the Court of

Appeals of Georgia, the only court to which it could

appeal as a matter of right. The rules of the Georgia Court

of Appeals require an Appellant to prepare and file an

“Enumeration of Errors,” as a separate document. The

Enumeration of Errors which Appellant City of Macon

filed on September 14, 1988, in Item “1.B.” stated as

follows:

“B. Any claims which could have been asserted

by the MBIA in the federal action against any of the

present Defendants were permissive, and an election

(or even omission) by the MBIA not to assert such

permissive claims cannot bar the City’s claims in this

action.”

Moreover, the Appellant’s Brief (at pp. 13-14), which was

filed concurrently with its Enumeration of Errors, cited

many of the authorities which are cited in Petitioner’s

argument below. See Thomson-CSF Components Corp. v.

Hathaway Instruments, Inc., 85 F.R.D. 344, 346 (D.C.N.J.

1980) and Dunn v. Sears, Roebuck & Co., 645 F.2d. 511,

512-13 (5th Cir. 1981) (f.n. 1).

It will be noted that the Court of Appeals’ Opinion of

March 8, 1989, (A-1), while acknowledging that the other

15

action pended in federal court, is completely silent as to

the presence or effect of this federal law issue. Accor-

dingly, The City of Macon filed its Motion for Rehearing

on March 17, 1989. Consistent with the rules of the Court

of Appeals of Georgia, The City of Macon was required to

state explicitly what authority it believed the Court of

Appeals had overlooked; in compliance with this dictate,

the second basis upon which The City of Macon sought a

rehearing was stated as follows:

“Il. Res judicata is not applicable, as there is no

former judgment at issue, but only a judgment ren-

dered in concurrently pending litigation which was

limited to a cause of action separate from that at

issue in this litigation; moreover, the applicable Fed-

eral Rules of Civil Procedure, which define and

determine the scope of the other action, do not per-

mit the Plaintiff/Appellant’s claims to be barred by

the federal judgment;”

Again, the Court’s attention was specifically directed to

the federal authorities discussed below.

Finally, so that there can be no doubt that the federal

question was explicitly raised but ignored by every Geor-

gia court which considered this case, The City of Macon,

Georgia, filed a Petition for Certiorari to the Supreme

Court of Georgia, on April 14, 1989, in which the first

issue argued (at p. 17) was defined as follows:

“1. An election by a party in a federal action not to

pursue a permissive Cross-claim has no res judicata

effect, and the verdict and judgment in the prior

federal action has no prejudicial effect upon The City

of Macon’s claim.”

As with The City of Macon’s previous efforts, this argu-

ment was supported by reference to several well-settled

16

authorities, beginning with Hanna v. Plumer, 380 U.S. 460,

85 S. Ct. 1136, 14 L.Ed.2d 8 (1965).

The Supreme Court of Georgia, in denying the City’s

Petition for Certiorari, offered neither explanation nor

discussion. In seeking to have the Georgia courts recog-

nize and honor the clear mandate of Federal Rule of Civil

Procedure 13(g), The City of Macon filed a Motion for

Rehearing, directed to the May 4, 1989, ruling by the

Supreme Court of Georgia, denying the Writ of Certiorari.

In that Motion for Rehearing, The City of Macon urged:

“Petitioners’ second basis for asserting this

Motion for Reconsideration is premised upon the

repeated failures of the trial court and the Court of

Appeals to acknowledge the distinction between our

systems of federal and state courts and to address

one of those clear differences which sometimes arise

as an incident of having the two separate systems of

courts. Even if the City of Macon had been a party to

the other litigation which proceeded to verdict in the

federal court, the judgment in that Court could not

prejudice its right to assert its own, direct claim in

the action below. It is clear that a defendant’s elec-

tion, not to assert a cross-claim in a federal action,

cannot operate to bar that party’s separate and inde-

pendent claim for the damages which it has suffered

directly. E.g., Answering Service, Inc. v. Egan, 728 F.2d

1500, 1503 (D.C. Cir. 1984)” (Citations omitted.)

Thus, at every stage of the proceedings, the federal

questions were “timely and properly raised so as to give

this Court jurisdiction to review the judgment on Writ of

Certiorari.” Supreme Court Rule 21.1(h).

sa.

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ARGUMENT OF LAW AND

CITATION OF AUTHORITIES

An election by a party in a federal action not to

pursue a permissive Cross-claim has no res judicata

effect, and the verdict and judgment in the prior federal

action has no prejudicial effect upon the City of

Macon’s claim.

When a state law is in conflict with an applicable

federal statute, the Supremacy Clause of the United

States Constitution requires that the state law must yield.

Constitution of the United States, Article VI.

The federal action was based upon diversity of citi-

zenship, and state law therefore determines, to a great

extent, the substantive rights of the parties. E.g., Erie

Railroad Company v. Tompkins, 304 U.S. 64, 82 L.Ed. 1188,

58 S.C. 817 (1938). However, the Erie mandate that state

law be consulted to determine the party’s substantive

rights in a diversity action does not permit a state’s

procedural rules or requirements to overrule or displace

an applicable federal rule; this principle would seem to

be too settled to admit of argument. See, e.g., Hanna v.

Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L.Ed.2d 8 (1965).

In the instant case, the trial court, and later the Court

of Appeals, appear to have concluded that the actions of

the Authority in the concurrently pending federal action

could operate to prejudice the City’s own claims. (There

are inherent falacies in this assumption: There is no dem-

onstration or showing that the Authority had any such

authority or power and the statute establishing the

authority specifically prohibits it from doing anything to

create liabilities against the City. Georgia Laws 1962, pp.

2323, 2325-26.). However, for purposes of this section of

this Brief, the City will assume, arguendo, that the acts of

18

the Authority in the concurrent, federal action are some-

how binding upon the City.

‘Even making this assumption, for the sake of argu-

ment, the Authority’s election, in the then concurrently

pending federal action, not to pursue a cross-claim for the

damage to the hangar itself cannot be urged now as a bar

to a direct claim for the actuai damages which resulted

from the destruction of the hangar itself. While the sub-

stantive law of Georgia might have defined the cause of

action to be litigated in the federal action, all matters of

procedure with regard to that action were governed by

the Federal Rules of Civil Procedure. Thomson-CSF Com-

ponents Corp. v. Hathaway Instruments, Inc. 85 F.R.D. 344,

346 (D.C.N.J. 1980); see 28 U.S.C. § 2072.

Under the applicable federal law which governs the

procedural aspects, cross-claims are clearly permissive in

nature, not compulsory; therefore, a party has the option,

without prejudice, to litigate a matter (which might be

asserted by way of cross-claim) separately and later as an

independent cause of action. Dunn v. Sears, Roebuck & Co.,

645 F.2d 511, 512-13 (5th Cir. 1981) (f.n. 1). (Moreover, and

with regard to the date upon which the City of Macon

filed its action, the Georgia courts also appeared then to

recognize that cross-claims were purely permissive and

could be deferred and asserted in a separate action. See,

O.C.G.A. § 9-11-13(g); Reeves Transportation Co. v. Gamble,

et al., 126 Ga. App. 165, 167, 190 S.E.2d 95 (1972).)

It should be noted further that the only claims which

the Authority chose to assert in the concurrently pending

federal action were its derivative claims for indemnifica-

tion. The Georgia courts have long noted that claims for

19

contribution and/or indemnity are separate and distinct

causes of action, with their own peculiar qualities, such

as different accrual dates for purposes of the statute of

limitations. See, e.g. Independent Manufacturing Company,

Inc. v. Automotive Products, Inc., 141 Ga. App. 518, 520, 233

S.E.2d 874 (1977).

Therefore, even if the City and the Authority were

determined to have some principal and agent relationship

or privity, a derivative cause of action for contribution or

indemnity would be separate and distinct from either

party’s direct claim for damages which it suffered itself

Thus, it is dispositive to note that a party in a federal

action may assert a cross-claim for indemnification, with-

out any requirement that it also assert other, direct claims

which it might have. Answering Service, Inc. v. Egan, 728

F.2d 1500, 1503 (D.C. Cir. 1984).

Indeed, by virtue of the other action having pended

in federal court, the City would have maintained its right

to assert its claims for its own damages in a separate

cause of action even if the City had been a named party

to the federal action. Under federal procedure, the per-

missive nature of a cross-claim seems to be so well-settled

that the issue has been raised or contested in only a very

few cases, which are cited in this argument. “Thus, if

such a claim is neither asserted nor litigated, the parties

cannot be barred from asserting it in a later action by

principles of res judicata, waiver, or estoppel.” Peterson v.

Watt, 666 F.2d 361, 363 (9th Cir. 1982), citing Augustin v.

Mughal, 521 F.2d 1215, 1216 (8th Cir. 1975).

20

CONCLUSION

Rule 17.1 of this Court defines clearly three situations

in which a Petition for Writ of Certiorari will be favorably

entertained. The City of Macon submits that the instant

case, while having its origin in a housekeeping or pro-

cedural context of humble stature, presents a compelling

case for the grant of certiorari under either of the three

standards. First, the Opinion of the Court of Appeals of

Georgia and the studied silence of the Supreme Court of

Georgia, in derogation of the clear mandate of Federal

Rule of Civil Procedure 13(g), constitute such a departure

from the usual course of judicial proceedings, by the trial

court, as well as a sanction thereof by the Georgia appel-

late courts, as to “call for an exercise of this Court’s

power of supervision.” Supreme Court Rule 17.1(a).

Moreover, it is clear that the Georgia courts’ conscious

decision not to look to federal law for’a definition or

determination of the scope of the concurrently pending

federal action, and the legal effect of permissive cross-

claims, and the scope of any judgment ultimately ren-

dered therein, is in direct violation of the cited decisions

of the federal Courts of Appeal as well as this Court; the

Georgia courts have in essence decided sub silentio federal

questions in a way which clearly conflicts with the most

basic law applicable to federal procedure. See e.g., Hanna

v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L.Ed.2d 8 (1965).

As such, the Writ of Certiorari should be granted.

Supreme Court Rule 17.1(b) and (c).

If Hanna v. Plumer and its progeny are to mean any-

thing, they should stand for the doctrine that, with regard

to procedural matters, counsel and parties should be able

to look to the Federal Rules of Civil Procedure (and the

21

federal cases interpreting them) and know that they can

make decisions or take action comfortably with regard to

well-settled points. A litigant in a federal court (or one

who is aware of concurrently pending litigation in a

federal court) should not have to proceed subject to the

risk that, after the conclusion of the federal litigation, a

state court can in effect nullify the federal rules by the

manner in which it defines some corollary, state doctrine.

In this case, no definition of res judicata or estoppel

should be permitted or countenanced if it has the effect of

vitiating the clear import of an applicable federal pro-

cedural rule.

While the issues raised by the City of Macon may

seem to border on the minutia of pleading, there are two

significant points. First, the City of Macon’s rather sub-

stantial claim for the destruction of its hangar has been

eliminated, and the City has never been permitted to

present its claim on the merits, by virtue of a technical

ruling which is clearly at variance with uncontradicted

and unanimous federal authority, which holds without

ambiguity or qualification that the City’s own clairns

should in ne way be affected by the Authority’s elections

as to the assertion of the Authority’s cross-claims in the

federal action. Second, to countenance the result which

has been reached below would mean that any federal

litigant in deciding whether or not to assert a cross-claim

(or, for that matter, make any other tactical decision

regarding pleading) could not resort to or rely upon the

Federal Rules of Civil Procedure but must instead also

look to the separate law of each state or jurisdiction

where a judgment might be enforced or where even the

most remotely related other proceedings might pend.

22

Such a lack of predictability is inconsistent with the goal

of having any rules of procedure, and such a lack of

uniformity is inconsistent with the basic purpose of hav-

ing Federal Rules of Civil Procedure which apply to all

actions which pend in the federal courts. Petitioner The

City of Macon, Georgia, although cognizant of this

Court’s case load, submits that certiorari should be

granted so that this Court can exercise its power of super-

vision to enforce the validity of the Federal Rules of Civil

Procedure and to confirm their primacy with regard to

the conduct of litigation in the federal courts.

This 23 day of June, 1989.

LONG, WEINBERG, ANSLEY & WHEELER

By: WituiaM Meape Burns, Jr.

Attorney At Law, P.C.

Ga. Bar No. 097000

By: Dan B. WINGATE

Ga. Bar No. 770475

Attorneys for Petitioner

Suite 2700

999 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 876-2700

APPENDIX

Opinion of the Court of Appeals of Georgia,

Ne eee A-1

Order of the Court of Appeals of Georgia, dated

March 27, 1989, denying The City of Macon’s

eA... ............... A-6

Notice from the Supreme Court of Georgia, dated

May 04, 1989, denying The City of Macon’s Peti-

tion for Certiorari to that Court................ A-7

Notice from the Supreme Court of Georgia dated

May 25, 1989, denying The City of Macon’s Peti-

tion for Rehearing with regard to the denial of

EE Eee A-8

Order of the trial court, dated January 25, 1988,

granting summary judgment to the Defendants

below (Respondents herein).................... A-9

Complaint filed on behalf of the City of Macon in

the Superior Court of Fulton County on April 11,

OG... sss... se... eee A-12

A-1

APPENDIX A

NOTICE: MOTIONS FOR REHEARING MUST BE

RECEIVED IN OUR CLERK’S OFFICE WITHIN TEN

DAYS OF THE DATE OF DECISION to be deemed timely

filed. (Court of Appeals Rules 4 and 48, March 1, 1985)

Birdsong, C.J.

Banke, P.J., & Beasley, J.

In the Court of Appeals of Georgia March 8, 1989

77779. THE CITY OF MACON, GEORGIA v. PASCO

BUILDING SYSTEMS et al. Bea-222

BEASLEY, Judge.

The City of Macon sued Pasco and Deita Associates

in tort (negligence) for damages resulting from the col-

lapse in a windstorm of an airport hangar and attached

office building. The structures were designed, manufac-

tured and fabricated by Pasco under specifications pro-

vided by Delta. A negligence action was already pending

in federal district court by Zantop International Airlines,

a sublessee, and its insurer for damage to two airplanes

in the hangar at the time of the collapse. Named as

defendants were Pasco, Delta, the Macon-Bibb County

Industrial Authority, and others. The Authority denied all

allegations of negligence and, pursuant to an extension of

time for further pleadings, in that federal suit, cross-

claimed against Pasco for indemnity.

Before trial of the instant case, a jury verdict and

judgment in favor of all defendants was entered on the

federal suit. Based on it, the state court granted summary

judgment to Pasco and Delta. It concluded that Macon

A-2

and the Authority were privies and that the issue of

Pasco’s and Delta’s alleged negligent construction of the

hangar was fully adjudicated in the federal court, barring

Macon from relitigating that issue.

Macon’s appeal asserts that since the Authority

served only as a “financing conduit” for it, the two enti-

ties did not have such privity as to bar Macon’s claims in

this action. Under the facts presented the trial court cor-

rectly determined that Macon and the Authority were

privies so as to invoke the res judicata proscription of

OCGA § 9-12-40.

The record established that the Authority was created

by legislative act (Ga. L. 1962, pp. 2323 et seq.) as a

“public body corporate and politic [and] instrumentality”

of the city of Macon and Bibb County. It was the conduit

for the city for the purpose of developing the facility.

Pursuant to a lease agreement of November 1, 1979,

Macon, as owner of the property on which the hangar

was built, leased the property to the Authority for 15

years. The parties agreed that all buildings and improve-

ments were to remain the sole property of the Authority

and would not constitute part of the leased land.

The Authority had contracted with Pasco and Delta

for the construction of the hangar and office/shopping

complex on September 6, 1979. Under the lease Macon

was pledged the rentals received from leasing these

buildings for the payment of principal and interest on

bonds it issued to pay for construction. The lease of the

hangar was between the Authority and the tenant airline,

with no property rights assigned to Macon. After the

A-3

collapse of the buildings, the Authority contracted for

their demolition.

Both Macon and the Authority are named insureds

under Macon’s policy for hazard insurance. A loan

receipt executed by Macon and the Authority with the

insurer on July 14, 1983, pledges the loan amount to be

repaid from any recovery which Macon and/or the

Authority might obtain from third parties. Macon and the

Authority jointly submitted a sworn proof of loss claim to

the insurer and joint payments for loss of the buildings

and debris removal were issued.

“OCGA § 9-12-40 provides that ‘A judgment of a

court of competent jurisdiction shall be conclusive

between the same parties and their privies as to all mat-

ters put in issue or which under the rules of law might

have been put in issue in the cause wherein the judgment

was rendered until the judgment is reversed or set aside.’

OCGA § 9-12-42 provides that ‘For a former judgment to

be a bar to a subsequent action, the merits of the case

must have been adjudicated.’ These code sections

together set out the basic principles of res judicata in

Georgia. For res judicata to act as a bar of a subsequent

action, the original and subsequent action must bear cer-

tain identical characteristics. The two actions must be

between identical parties or their privies, and the cause

of action in each suit must be identical. Collateral estop-

pel, like res judicata, requires identity of the parties or

privity. However, unlike res judicata, collateral estoppel

does not require identity of the claim but only precludes

readjudication of an issue already adjudicated between

the parties or their privies in a prior action. [Cit.]” Norris

v. Atlanta & West Point R. Co., 254 Ga. 684-685 (333 SE2d

A-4

835) (1985). “Further, the doctrine of res judicata will bar

an action ‘even if some new factual allegations have been

made... .’ [Cits.]” Williams v. Summit Psychiatric Centers,

185 Ga. App. 264, 267-268 (6) (363 SE2d 794) (1987).

The Authority was an instrumentality of Macon, or

an “agent” created by legislative enactment. See Knowles

v. Housing Authority of Columbus, 212 Ga. 729 (95 SE2d

659) (1956); Richmond County Housing Authority v. McLain,

112 Ga. App. 209 (144 SE2d 565) (1965). The Authority

was the actual owner of the buildings and lessee of the

property on which they stood. To the extent that Macon

had any property interest in these buildings, for the

destruction of which it sought recovery, such interest was

derived from the interest of the Authority. Thus that

which is res judicata as to the Authority is res judicata as

to Macon. Williams, supra.

Although the Authority filed a cross-claim for indem-

nity in the federal action, it did not add any claims it hac

against Pasco and Delta even though it was granted an

extension of time to do so. Any grounds for recovery

which Macon had were assertible in federal court. “The

factual allegations supporting this claim are identical to

those alleged [in the federal action] and had the claims

been properly presented, the federal court could have

adjudicated the [claims raised here] by exercising pen-

dent jurisdiction.” Hill v. Wooten, 247 Ga. 737, 738 (279

SE2d 227) (1981). Accord Monroe v. Lubonivic, 174 Ga.

App. 191 (1) (329 SE2d 583) (1985).

Although Pasco and Delta were the Authority’s co-

defendants in the federal case, the same issues of negli-

gence were involved and the Authority as agent for the

A-5

city could have raised any claims for damages to Macon’s

ownership interests. See Charlton Development Authority v.

Charlton County, 253 Ga. 208 (317 SE2d 204) (1984). “Thus,

even if it can be said that the [present] case asserts a

different claim than the claims asserted . . . in the federal

court, [Macon] would also be barred by the final judg-

ment in the federal case as the issues in the various

claims are identical.” Chilivis v. Dasher, 236 Ga. 669, 671

(225 SE2d 32) (1976). See also Barnes v. City of Atlanta, 186

Ga. App. 187 (1) (366 SE2d 822) (1988); Smith v. Carlton

Farms, 181 Ga. App. 743 (1) (353 SE2d 624) (1987).

The motions for summary judgment were properly

granted.

Judgment affirmed. Banke, P. ]., and Birdsong, ]., concur.

A-6

_ APPENDIX B

Court of Appeals .

of the State of Georeia

ATLANTA March 27, 1989

The Honorable Court of Appeals met pursuant to

adjournment.

The following order was passed:

77779. THE CITY OF MACON, GEORGIA v. PASCO

BUILDING SYSTEMS A DIVISION OF

AMCORD, INC. ET AL

Upon consideration of the motion for a rehearing

filed in this case, it is ordered that it be hereby denied.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta March 27, 1989

I certify that the above is a true extract from the

minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court here-

to affixed the day and year last above written.

/s/ Victoria McLaughlin

CLERK.

A-7

APPENDIX C

Clerk’s Office, Supreme Court of Georgia

Atlanta May 04, 1989

Case No. 46948, The City of Macon V. Pasco Building

Systems A Division Of Amcord, Inc., et al.

The Supreme Court today denied the writ of cer-

tiorari in this case.

All the justices concur.

C/A #7779

Very truly yours,

JOLINE B. WILLIAMS, Clerk

APPENDIX D

Atlanta Mav 2 19R9

The motion for a rehearing was denied today

x { iW, ‘ | bestl ae

Case No. 4694 City of Macon V. Pasco Buildlt

system et al

I very |

MRS OLIN B. WII AMS

A-9

APPENDIX E

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

THE CITY OF MACON,

GEORGIA,

Plaintiff

VS C A. No. D-08793

PASCO BUILDING SYS

TEMS, a Divison of

AMCORD, INC., et al.,

Defendants

ORDER ON MOTIONS

This case came on regularly for a hearing on a motion

for summary judgment filed by Defendant Pasco Building

Systems, a Division of Amcord, Inc., and on an amended

motion for summary judgment filed by Defendant Delta

Associates, Inc.

DEFENDANT PASCO’S

MOTION FOR SUMMARY JUDGMENT

Prior to the present suit being filed, Defendants

Pasco Building Systems (“Pasco”) and Delta Associates,

inc. (“Delta”) and another entity, Macon-Bibb County

Industrial Authority (“MBIA”), were sued by Zantop

International Airlines, Inc. and Puritan Insurance Com-

pany in the United States District Court for the Middle

District of Georgia, Columbus Division (C.A. No. 83-158-

COL). Zantop and Puritan alleged defendants negligently

manufactured, designed, planned and constructed a

hangar located at Lewis B. Wilson Airport in Macon,

A-10

Georgia and, that as a result of such negligence, the

hangar collapsed damaging several of Zantop’s airplanes.

The federal litigation was concluded on March 26, 1987,

with a jury verdict for all of the defendants. A judgment

nunc pro tunc was entered in that case on April 9, 1987.

On April 11, 1984, City of Macon filed the present

suit alleging Defendants Delta and Pasco were negligent

in designing, testing and inspecting a hangar at Lewis B.

Wilson Airport, the same hangar which was the subject

matter of the Zantop federal litigation

lt appearing that City of Macon is a privy of the

MBIA and that the issue of Defendants Pasco’s and

Delta’s alleged negligent construction of the hangar was

fully adjudicated in the prior federal suit, City of Macon

is barred from relitigating the aforesaid negligence issue

pursuant to the doctrine of collateral estoppel (estoppel

by judgment). See OCGA § 9-12-40 and Smith v. Wood et

al., 115 Ga. App. 265 (154 S.E. 2d 646) (1967). Cf. Livesay

Industries, Inc. et al. v. Livesay Window Co., Inc., 202 F.2d

378, 382 (5th Cir. 1953) and Usher v. Johnson et al., 157 Ga.

App. 420, 422 (278 S.E. 2d 70) (1981). Accordingly, Defen-

dant Pasco’s motion for summary judgment is granted.

DEFENDANT DELTA’S AMENDED

MOTION FOR SUMMARY JUDGMENT

Defendant Delta having incorporated Defendant

Pasco’s motion for summary judgment in its amended

motion for summary judgment, and this court having

decided that Defendant Pasco’s motion should be

granted, this court also finds that Defendant Delta’s

amended motion is meritorious. Accordingly, Defendant

A-11

Delta’s amended motion for summary judgment is

granted. (In view of this ruling perhaps it is unnecessary

to rule upon Defendant Delta’s motion for partial sum-

mary judgment. However, in the name of judicial econ-

omy this court has considered that motion and has

concluded that the limitation of liability clause in Defen

dant Delta’s contract with MBIA is valid and that the

motion for partial summary judgment is meritorious.)

This 25 day of January, 1988.

‘'S/ William H. Alexander

William H. Alexander

judge

Copies to:

Dan B. Wingate, Esq

George W. Hart, E 5q

John W. Greenfield, Esq

A-12

APPENDIX F

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

THE CITY OF MACON,

GEORGIA

CIVIL ACTION FILE

NO. D-8793

(Filed April 11, 1984)

Plaintiff,

V.

)

)

)

)

PASCO BUILDING SYS-

TEMS, a Division of )

AMCORD, INC. and )

DELTA ASSOCIATES, }

INC.

)

Defendants.

COMPLAINT

NOW COMES THE CITY OF MACON, GEORGIA,

Plaintiff, and states its Complaint, as-follows:

(2

Defendant Pasco Building Systems, a Division of

Amcord, Inc., is a Delaware corporation, with its regis-

tered agent for service of process at C. T. Corporation, 2

Peachtree Street, Atlanta, Fulton County, Georgia. Said

Defendant is subject to the jurisdiction of this Court and

venue is proper in Fulton County.

rs

Defendant Delta Associates, Inc. is a Georgia corpo-

ration with its principal place of business in Muscogee

County, Georgia, and may be served with process by

second original upon its registered agent, H. Wilson

A-13

Hawthorn, at 1000 Airport Throughway, Columbus,

Georgia. Said Defendant is subject to the jurisdiction of

this Court as a joint tortfeasor and venue is proper in

Fulton County.

>

In 1979, the Macon-Bibb County Industrial Authority,

which was created and formed by an act of the General

Assembly of the State of Georgia, with its location in

Macon, Bibb County Georgia, caused to be constructed on

behalf of Plaintiff and on land owned by Plaintiff, a pre-

engineered metal aircraft hanga: with office and shop

complex at the Lewis B. Wilson Airport in Macon, Bibb

County, Georiga.

4.

Defendant Pasco Building Systems, a division of

Amcord, Inc., manufactured and fabricated the materials

with which the hangar structure was constructed and,

further, participated in the design of the hangar structure

and its internal structures and components.

-

Defendant Delta Associates, Inc. was retained as an

engineering and planning consultant during the design

and construction of the hangar. In this capacity, said

Defendant participated in the design of the hangar struc-

ture and conducted inspections and supervision of the

actual construction of the hangar.

A-14

6.

The hangar was completed in 1980, and, at that time,

the structure was leased to a tenant and, subsequently,

subleased to another tenant. The Plaintiff earned income

as a result of the lease and sublease arrangements.

B

On March 21, 1982, the hangar structure collapsed, as

a result of the negligence, jointly and severally, of the

Defendants in the following particulars, among others:

(a) The hangar was defectively and inadequately

designed, tested and inspected by the Defendants.

(b) The hangar lacked adequate cross-bracing to

withstand normal weather conditions and was inade-

quate for the purposes for which it was designed due to

the negligence of the Defendants.

(c) The hangar was fabricated by Defendant Pasco

in such a manner that the materials forming the structure

of the hangar were improperly or inadequately welded

and created a structure which was inadequate for the

purposes for which it was designed.

(d) Defendants failed to exercise reasonable care to

supervise or inspect the construction of the hangar.

8.

As a direct and proximate consequence of the Defen-

dants’ joint and several negligent acts and omissions, the

Plaintiff has sustained damages for the loss of the hangar

structure, reconstruction costs, and loss of income from

the lease and sub-lease of the hangar.

A-15

WHEREFORE, Plaintiff, The City of Macon, Georgia,

prays:

(a) That it have judgment against Defendants Pasco

Building Systems, a division of Amcord, Inc. and Delta

Associates, Inc., jointly and severally, in an appropriate

and fair amount to be Getermined and awarded by the

jury;

(b) That all costs of this action be cast upon Defen-

dants; and

(c) That Plaintiff have such other and further relief

which the Court determines is fair and proper.

LONG, WEINBERG, ANSLEY &

WHEELER

BY: /s/ Sidney F. Wheeler

SIDNEY F. WHEELER

BY: /s/ Joseph W. Watkins

JOSEPH W. WATKINS

2500 The Equitable Building

100 Peachtree Street

Atlanta, Georgia 30303

(404) 688-7900