United States District Court, M.D. Georgia, Macon Division
TRANE U.S. INC., Plaintiff,
YEAROUT SERVICE, LLC, et al., Defendants.
T. TREADWELL, JUDGE
Trane moves for summary judgment on Defendant GSC's
counterclaim. Doc. 80. For the following reasons, that motion
(Doc. 80) is GRANTED.
case arises from a consolidation of two cases, both involving
a renovation project of Hangar Dock Building 54 at Robins Air
Force Base in Warner Robins, GA (“the Project”).
Docs. 20; 29. The United States Army Corps of Engineers was
the owner of the Project, GSC was the general contractor,
Defendant Yearout was subcontracted by GSC to perform certain
work under the contract, and Trane provided materials to
Yearout, including makeup air units (“MAUs” or
“AHUs”) to be installed as part of the Project.
See generally Doc. 1; see Doc. 97-1 ¶
3. Trane alleges Yearout failed to pay for a humidifier it
sold to Yearout, so Trane brought suit against Yearout. Docs.
1 at 5-6; 1-2 at 1. Trane also brought suit against GSC under
the Miller Act, 40 U.S.C. §§ 3131 et seq.,
alleging GSC had executed a payment bond for the protection
of those working on the Project and that Trane was entitled
to recover on the bond for money owed. Doc. 1 at 4-8;
see 40 U.S.C. § 3133(b). It also asserted a
claim against Allied World (formerly known as Darwin), the
surety for the payment bond. Docs. 1 at 4; 15 at 1.
brought a counterclaim against Trane, alleging the MAUs Trane
provided were defective. Doc. 18 at 13. Trane acknowledges
that some of the fan motors in the MAUs have failed in the
time since the MAUs started running. Doc. 80 at 2. However,
Trane claims it is entitled to summary judgment because Trane
was not in privity of contract with GSC. Id. at 3.
Summary Judgment Standard
must grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A factual dispute is not genuine unless,
based on the evidence presented, “‘a reasonable
jury could return a verdict for the nonmoving
party.'” Info. Sys. & Networks Corp. v.
City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002)
(quoting United States v. Four Parcels of Real
Prop., 941 F.2d 1428, 1437 (11th Cir. 1991));
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The movant may support its assertion that a fact is
undisputed by “citing to particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials.” Fed.R.Civ.P. 56(c)(1)(A). “When
the nonmoving party has the burden of proof at
trial, the moving party is not required to ‘support its
motion with affidavits or other similar material
negating the opponent's claim' in order to
discharge this ‘initial responsibility.'”
Four Parcels of Real Prop., 941 F.2d at 1437-38
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). Rather, “the moving party simply may
‘show[ ]-that is, point[ ] out to the district
court-that there is an absence of evidence to support the
nonmoving party's case.'” Id.
(alterations in original) (quoting Celotex, 477 U.S.
at 324). Alternatively, the movant may provide
“affirmative evidence demonstrating that the nonmoving
party will be unable to prove its case at trial.”
burden then shifts to the non-moving party, who must rebut
the movant's showing “by producing …
relevant and admissible evidence beyond the pleadings.”
Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1315 (11th Cir. 2011) (citing
Celotex, 477 U.S. at 324). The non-moving party does
not satisfy its burden “if the rebuttal evidence
‘is merely colorable, or is not significantly
probative' of a disputed fact.” Id.
(quoting Anderson, 477 U.S. at 249-50). Further,
where a party fails to address another party's assertion
of fact as required by Fed.R.Civ.P. 56(c), the Court may
consider the fact undisputed for purposes of the motion.
Fed.R.Civ.P. 56(e)(2). However, “credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge. … The evidence of the non-movant
is to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson, 477 U.S. at
counterclaim, GSC claims the equipment furnished by Trane was
“warranted to meet certain standards for workmanship
and durability” and that the MAUs supplied by Trane
were defective. Doc. 18 at 13. As a result, GSC incurred
expenses. Id. Surprisingly, GSC does not identify
what its legal claim is. Id. Trane interprets the
claim as one for breach of the implied warranty of
merchantability, O.C.G.A. § 11-2-314. Doc. 80 at 4. GSC
does not contest that characterization. See
generally Doc. 97. Because it is the only claim even
arguably viable which GSC's complaint could be construed
to assert, the Court treats this claim as one for breach of
the implied warranty.
argues that under Georgia law, a warranty generally can be
enforced only by one in privity with the seller. Doc. 80 at
5. The general rule in Georgia, Trane argues, is that
if a defendant is not the seller to the plaintiff-purchaser,
the plaintiff as the ultimate purchaser cannot recover on the
implied or express warranty, if any, arising out of the prior
sale by the defendant to the original purchaser, such as
distributor or retailer from whom plaintiff purchased the
Evershine Prod., Inc. v. Schmitt, 130 Ga.App. 34,
35, 202 S.E.2d 228, 231 (1973). That is, a plaintiff cannot
recover for breach of warranty unless it is in privity with
the defendant. Id. Under the UCC, as adopted in
Georgia, a warranty is made by the seller of a good to the
buyer, and it only extends beyond the buyer in certain
situations specified at O.C.G.A. § 11-2-318. Decatur
N. Assocs., Ltd. v. Builders Glass, Inc., 180 Ga.App.
862, 863, 350 S.E.2d 795, 797 (1986). Here, it is undisputed
the buyer was ...