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Jai Ganesh Lodging Inc. v. David M. Smith Inc.

The acceptance doctrine did not apply to the plaintiffs' negligent construction claims because there was evidence that the defect at issue was not readily observable on reasonable inspection.

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Jai Ganesh Lodging, Inc. and Laxesh, L.P. appeal from the trial court’s order granting summary judgment in favor of David M. Smith, Inc. “DMS” and B & J Reed Construction, LLC “B & J Reed”, an order rescinding its previous order allowing Baron and Jeremy Reed to be added as defendants, and an order excluding the testimony of an expert witness. For the reasons explained below, we affirm the trial court’s order excluding the appellants’ expert, reverse its order dismissing the appellants’ complaint against Baron Reed and Jeremy Reed, affirm the grant of summary judgment on the breach of contract claims, and reverse the grant of summary judgment on the claims of negligent construction.

This case arises from structural damage to a newly constructed Holiday Inn Express resulting from settlement of the rear parking lot, pool areas, and one side of the building itself. The record shows that Laxesh, L. P. owns the real property on which the Holiday Inn Express is located and that Jai Ganesh Lodging, Inc. holds the franchise rights to and operates the Holiday Inn Express. In April 2007, site plans for the Holiday Inn Express were created by Rhodes Engineering Services, Inc., and the site plans list Anil Patel “Patel” as the “owner/developer/24-hour emergency contact” person.1

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