In 2000, R. Larry Phillips Construction Company, Inc. “Phillips” finished its construction of a new automobile dealership building in Columbus. Four years later, the owners and lessors of the building, Richard E. Stevens, KMAR Investments, LLP, and Rivertown Ford, Inc. the “Stevens plaintiffs”, sued general contractor Phillips and The Zenner Group, Inc. “Zenner”1 for construction defects in the building, alleging that the building suffered from water intrusion and was not properly designed and constructed the “2004 case”. By two motions in 2007, Phillips sought to add as third-party defendants entities which were involved in the project as subcontractors, suppliers and/or manufacturers the “subcontractors”.2 In 2008, Phillips filed an independent lawsuit for contribution and indemnity against the foregoing subcontractors and two others, Lott Sheet Metal Contractors, Inc. and River City Construction Company, Inc. the “2008 case”. In March 2009, the trial court dismissed Phillips’ 2008 case for failure to state a claim upon which relief can be granted and denied its motions to add subcontractors as third-party defendants in the 2004 case based on potential prejudice to the subcontractors due to the passage of time and finding that Phillips failed to offer sufficient justification for failing to name the subcontractors earlier. Inasmuch as the appeals from the judgment in each case arise out of the same facts below, we have consolidated them for disposition on appeal. In Case No. A09A2050, upon this Court’s grant of its application for interlocutory appeal in the 2004 case, Phillips appeals from the trial court’s order denying its motion to add the subcontractors as third-party defendants. Phillips argues that the trial court abused its discretion by i entering its order ex parte in the 2008 case, ii entering its order although the motion was unopposed by the parties in the 2004 case and based, in part, upon objections by the subcontractors in the 2008 case, iii potentially causing his contribution rights to be barred by the statute of repose, resulting in a denial of due process, and iv finding that the subcontractors established prejudice and that it failed to offer sufficient justification to add the subcontractors as third-party defendants earlier.
In Case No. A09A1744, Phillips appeals from the trial court’s order dismissing its 2008 case, contending that the trial court erred in i finding such action unripe for disposition for lack of judgment or settlement therein, ii construing OCGA § 9-11-14 as limiting its right to seek contribution prior to judgment or settlement, and iii violating the Due Process Clause of the Georgia Constitution and OCGA § 9-3-3 by leaving it without a remedy to exercise its substantive contribution rights.
