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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 824

## Text

88-2170 |

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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

a
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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.

il
PARTIES

All parties to the appeal and other proceedings below
are listed in the above caption.

ill

TABLE OF CONTENTS

Page
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Samemmeoms OF JURISDICTION.............000055 2
CONSTITUTIONAL AND STATUTORY PROVI-
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hg eae Vt Og 5 oa 4
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.

a
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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.

,
4

CONSTITUTIONAL AND STATUTORY PROVISIONS
AT ISSUE

1. The Constitution of the United States, Article VI,
provides in pertinent part:

* * *

a

“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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vv

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

10

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.

t3

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.
+

17

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1594%3A1. Public record. Not legal advice.