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09/23/94 MAC SMITH v. JAMES E. FISH AND VANESSA S.

September 23, 1994

MAC SMITH, INC., A/K/A MAC SMITH BUILDERS, INC.
v.
JAMES E. FISH AND VANESSA S. FISH



Appeal from Madison Circuit Court. (CV-93-211)

Robertson, Presiding Judge. Thigpen and Yates, JJ., concur.

The opinion of the court was delivered by: Robertson

ROBERTSON, Presiding Judge

Mac Smith, Inc., a/k/a Mac Smith Builders, Inc., filed a complaint in the Madison County Circuit Court against James and Vanessa Fish, alleging that Mac Smith, Inc., had not been paid pursuant to an alleged agreement entered into by the parties whereby Mac Smith, Inc., was "to install cabinets and other work in and about the construction of a home" for the Fishes. Mac Smith, Inc., claimed a lien upon the real property and all improvements located thereon and sought a judgment in the amount of $8,840.87.

The record reflects that James and Vanessa Fish entered into a contract with Winston Davis, d/b/a Silver Creek Custom Home Builders, for the completion of a new house in Huntsville, Alabama, in June 1992. Davis hired and scheduled various subcontractors and suppliers for the construction of the Fishes' house. Davis ordered cabinets for the Fishes' house through Mac Smith, Inc., and gave him a $2500 deposit for the purchase of the cabinets.

Davis also had an ongoing business relationship with Mac Smith, Inc., whereby Davis wrote insurance estimates for Mac Smith, Inc., and was paid on a commission basis. When Hurricane Andrew hit South Florida in 1992, Winston Davis left Huntsville and went to Florida to write insurance repair estimates for Mac Smith, Inc.

While Davis was in South Florida, Mac Smith, Inc., began doing work (cabinets, driveway, yard leveling, etc.) on the Fishes' house. It is undisputed that Mac Smith, Inc., did this work on the Fishes' house. The dispute arises over who requested Mac Smith, Inc., to perform the work on the Fishes' house. Mac Smith, Inc., contends that its president, Charlie McCall Smith, reached an agreement with Mr. Fish whereby Mac Smith, Inc., would do certain work on the house on a "cost plus basis." The Fishes contend that they never had an agreement with Mac Smith, Inc., and that their only agreement was with Winston Davis. The Fishes further contend that they have paid Davis in full and that Mac Smith, Inc., is "coming after them" because Davis has not paid Mac Smith, Inc.

On December 9, 1993, the Fishes filed a motion for summary judgment on the contract claim of Mac Smith, Inc., which was granted by the trial court on February 22, 1994. The trial court amended its order to comply with the language of Rule 54(b), Ala.R.Civ.P., to make the summary judgment a final judgment. *fn1

Mac Smith, Inc., appeals, contending that it was error for the trial court to enter the summary judgment because, it argues, there were genuine issues of material fact to be resolved by the trier of fact.

First, Mac Smith, Inc., argues that the trial court erred in considering the deposition of Winston Davis. Specifically, it argues that the deposition was not signed in compliance with Rule 30(e), Ala.R.Civ.P., and that the parties did not stipulate to a waiver of the signing of Winston Davis's deposition.

The Fishes argue that Mac Smith, Inc., waived any objection to the signature requirement of Rule 30(e) by not objecting to the use of Winston Davis's deposition within a reasonable time. Rule 32(d)(4), Ala.R.Civ.P., states:

"(4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained."

(Emphasis added.)

Mac Smith, Inc., cites Wiginton v. Hagler, 585 So. 2d 5 (Ala. 1991), in support of its position that the unsigned deposition should not have been considered by the trial court. In Wiginton, the defendant did not object to the use of an unsigned deposition until trial. Our supreme court held that the objection made pursuant to Rule 32(d)(4), was timely because until ...


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