Maryan Fields and Jimmy Clark v. Little Tree Construction, Inc.

Negligence - Construction - Residence - Breach of Contract - Plaintiffs Maryan Fields and Jimmy Clark brought this breach
of contract action against defendant Richard Losey, d/b/a Little
Tree Construction, seeking to recover $23,700.00 in expenses
allegedly incurred as a result of defendant's defective and
negligent construction of plaintiffs' residence. Defendant
Richard Losey acknowledged service of process but defended in part
on the ground that he was not a proper party, because he was at
all times acting as an officer of Little Tree, Inc., a Georgia
corporation. Pursuant to a consent order entered May 16, 1997,
Little Tree, Inc. ("LTI") was substituted as the proper defendant.
The trial court subsequently permitted LTI to file a third-party
complaint against Norris A. Garrett, the alleged owner of the real
property where the house was built and alleged joint venturer with
LTI in its construction. Norris A. Garrett in turn filed a
third-party complaint against Richard Losey individually. Richard
Losey answered the third-party complaint, again defending on the
basis that "[LTI] constructed the home, not Rick Losey
individually. . . ." After discovery, plaintiffs moved on
December 7, 1998, to amend the complaint by adding Richard Losey
individually as a defendant in the main case, contending the
corporate defendant LTI was a sham. This motion was made one day
before trial.

At the scheduled bench trial, defendant Richard Losey argued
it was not equitable to add him at the eleventh hour, since he had
been dismissed 18 months earlier by the consent order substituting
LTI as the proper defendant. The superior court took the motion
to add Richard Losey individually under advisement subject to a
showing of fundamental unfairness but proceeded with the hearing
on the basis that Richard Losey would be a defendant individually.

The superior court ultimately determined that both LTI and Richard
Losey individually were proper defendants, and that the corporate
veil should be pierced in this case. The superior court granted
judgment in favor of plaintiffs, awarding them $22,113.00 but
declined to award attorney fees for bad faith or stubborn litigiousness.

John Stoddard, Construction, Georgia

Unknown

Affirmed by the Georgia Court of Appeals. See: 240 Ga. App. 12 (1999),___ S.E.2d ___. Note: The above date reflects the appellate court decision date, not the original trial date. Reported by kkm.