SOUTHERN STATES CHEMICAL, INC. et al.
TAMPA TANK & WELDING, INC. et al.
COOMER, MARKLE and HODGES, JJ.
case comes to us for a third time on appeal. Southern States
Chemical, Inc., and Southern States Phosphate and Fertilizer
Company (collectively, "Southern") appeal the trial
court's order granting Tampa Tank & Welding, Inc.
f/k/a Tampa Tank, Inc. ("Tampa Tank") and Corrosion
Control, Inc.'s ("CCI") (collectively
"Appellees") motion for summary judgment. In its
third appearance before this Court, Southern argues that the
statute of repose, OCGA § 9-3-51 (a), is not applicable
because the claims against Appellees was not for a
construction deficiency but for breach of express written
warranties. Southern further contends the trial court erred
by concluding that the statute of limitation on simple
written contracts bars its claims against Appellees, by
ruling that Southern failed as a matter of law to exercise
due diligence to discover Appellees' alleged fraud, and
by dismissing Southern's breach of contact per se claim.
The parties appeared before this Court on August 22, 2019,
for oral argument, at which this Court directed the parties
to supplement their briefs with arguments regarding two
issues: (1) whether the statute of repose alleging
deficiencies in improvements to real property under OCGA
§ 9-3-51 (a) applies in light of our Supreme Court's
holding in Turner v. Marable-Pirkle, Inc., 238 Ga.
517, 518 (233 S.E.2d 773) (1977); and (2) whether there was
any consideration given by Southern for the alleged 43 or
45-year warranty that Southern contends was made as part of a
report prepared by CCI for Tampa Tank in 2002. For the
reasons that follow, we affirm.
judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of
law. A trial court's grant of summary judgment is
reviewed de novo on appeal, construing the evidence in the
light most favorable to the nonmovant." Bruce v.
Georgia-Pacific, LLC, 326 Ga.App. 595, 595 (757 S.E.2d
192) (2014) (citations and punctuation omitted).
Relevant Facts and Procedural History
relevant facts and procedural history of this case are set
forth in this Court's prior opinions as well as the order
giving rise to this appeal:
The record shows that [Southern] manufacture[s], buy[s],
sell[s], and store[s] sulfuric acid in bulk at a facility in
Savannah. In 2000, [Southern] contacted Tampa Tank about
renovating a 24-foot tall, 130-foot wide storage tank (the
"Duvall tank") that had previously stored molten
sulfur, such that it would be suitable for storing up to 2.2
million gallons of sulfuric acid. . . .
The initial letter proposal between Tampa Tank and [Southern]
contained the following express one-year warranty provision:
"All material and workmanship are guaranteed for a
period of twelve (12) months from the date of completion of
this work." . . .
The Duvall tank renovation was completed in January 2002. The
renovation required Tampa Tank to install an impervious
plastic ("HDPE") liner directly on top of the steel
floor of the tank. Tampa Tank then welded a new steel floor
above the old floor of the tank, and a layer of sand filled
the gap between the old floor and the new floor. In order to
prevent corrosion of the new floor, Tampa Tank installed a
cathodic corrosion control system ("cathodic
system") in the sand layer. Tampa Tank installed, but
did not design, the cathodic system; it contracted with CCI
to provide the design, materials, on-site technical
assistance, and testing of the system.
During installation, Tampa Tank's foreman consulted with
CCI over the phone regarding the installation of the
magnesium strips of the cathodic system, but CCI did not
assist with the installation onsite. CCI's contract with
Tampa Tank only required it to design the cathodic system,
procure the materials for its installation, and test the
system once installed. [Southern] contends that Tampa Tank
misplaced magnesium ribbons, which are a key component of the
cathodic system, drove a Bobcat bulldozer over the sand layer
after the ribbons were installed, which tampered with the
integrity of the system, and failed to properly seal the new
floor, which left it open to corrosive rainwater.
[Southern] contends that CCI failed to properly test, design
and commission the cathodic system. After the tank's
renovation was substantially completed in January 2002, CCI
performed a post-installation commissioning inspection of the
cathodic system. The report resulting from that inspection
indicated that the cathodic system was working and properly
installed. However, the cathodic system and the sand layer it
was installed upon had been covered up with steel plates by
the time CCI arrived onsite to perform its inspection. CCI
inspected the cathodic system when the tank was empty, and it
was possible that a portion of the steel plates was not in
contact with the sand layer during the testing because there
was no liquid pressing the plates down into the sand.
[Southern] contends that CCI failed to properly test the
cathodic system by neglecting to confirm that Tampa Tank kept
the sand layer dry, by failing to verify that Tampa Tank had
not driven a Bobcat over the floor, and by conducting an
inspection when the tank was empty, which only put the
cathodic system to limited use. [Southern] also fault[s] CCI
for not having an engineer on-site to ensure that the
corrosion protection system was installed properly. CCI made
no warranty to [Southern] about the tank. After inspection,
CCI prepared a post-installation report concluding that the
Duvall Tank's cathodic system had been properly installed
and was fully functioning. CCI sent the report to Tampa Tank,
but not to [Southern].
On July 3, 2011, it was discovered that sulfuric acid was
leaking from the base of the Duval Tank. The parties hotly
dispute the cause of the leak. Southern contends the hole in
the tank resulted from improper installation and "a
defective or otherwise unsuitable cathodic corrosion
protection system." The defendants, on the other hand,
assert that inadequate maintenance caused sludge to form
inside the tank which interacted with the sulfuric acid in a
way that caused a hole to form on the inside of the tank.
There is also evidence that Southern failed to preserve the
portion of the particular plate where the hole formed.
In Southern States I, this Court reversed the trial
court's grant of summary judgment in favor of appellees
Tampa Tank and CCI. We remanded the case to the trial court
to determine if Appellees were estopped from raising the
statute of repose defense based on alleged fraud.
Specifically, we instructed the trial court to determine if a
genuine issue of fact existed "as to whether Appellees
fraudulently concealed any defects in the renovation,
installation or testing of the Duval Tank" and whether
Southern exercised due diligence. This Court also reversed
the trial court's denial of Southern's motion for
partial summary judgment and remanded it to the trial court
with direction. We instructed that if the trial court
determined Appellees were estopped from raising the statute
of repose defense due to fraud, it should then determine if a
causal connection exists between any negligence per se by the
Appellees and the injury suffered by Southern.
Following remand, the trial court issued a lengthy, 22-page
order in which it meticulously examined each of the five
allegedly fraudulent statements supporting Southern's
equitable estoppel claim. With regard to two of the
statements, it concluded there ...