May 8, 2015
Robert N. Barrett and Tracy C. Barrett
Carlos Roman d/b/a Carlos Roman Roofing, and Bobby Beach d/b/a Just Brick It Masonry
[Copyrighted Material Omitted]
from Madison Circuit Court. (CV-10-900557).
N. Barrett and Tracy C. Barrett appeal from summary judgments
entered by the Madison Circuit Court in favor of Carlos Roman
d/b/a Carlos Roman Roofing (" Roman" ) and Bobby
Beach d/b/a Just Brick It Masonry (" Beach" ). We
Facts and Procedural History
the second time this case has been on appeal. Our supreme
court dismissed the first appeal as having been taken from a
nonfinal order. See Barrett v. Roman, 143 So.3d 144
(Ala. 2013). On remand, the trial court disposed of all
pending claims, and the case is now ripe for appeal.
2006, Jonathan Whitten obtained a building permit from the
City of Huntsville for the construction of a residence on a
piece of real property Whitten owned. At the time he began
construction, Whitten intended to occupy the residence with
his family. Whitten's long-time friend, Robert Fugate,
who had experience as a homebuilder, agreed to help Whitten
with the construction.
point before the house was completed, Whitten decided that
the construction was taking too much of his time, that he and
his family were not going to live in the house, and that he
would sell the house once construction was finished.
Accordingly, " at the framing stage," Whitten asked
Fugate to take over the construction of the house completely.
also promised to split with Fugate any profit from the sale
of the property. Fugate agreed to the proposed arrangement.
Neither Whitten nor Fugate was licensed as a homebuilder
during any phase of the construction, which was completed in
January 20, 2008, the Barretts agreed to purchase the
residence from Whitten. On February 29, 2008, the Barretts
closed on the purchase. Whitten and Fugate each made $45,000
in profit from the sale of the house.
to the Barretts, " shortly after moving into the
residence," they discovered that water was leaking into
the house. Relevant to this appeal, the Barretts claim that
numerous building defects, including defective roofing and
brick work, caused the leaks.
10, 2010, the Barretts sued Whitten and fictitiously named
defendants in the trial court, stating claims of fraudulent
suppression, negligence and wantonness in the construction of
the house, breach of express and implied warranties of
habitability, breach of an implied warranty of good
workmanship, and a violation of the Alabama Deceptive Trade
Practices Act, § 8-19-1 et seq., Ala. Code 1975. The
Barretts later amended their complaint on July 9, 2010, to
add a breach-of-contract claim.
August 31, 2010, Whitten filed a third-party complaint
against Roman, Beach, and Ronnie Smith. Whitten asserted in
his third-party complaint that he had acted as the builder
" during a portion of the construction" of the
residence and that Smith, Roman, and Beach were three of his
subcontractors. The parties agree that Roman roofed the house
and that Beach performed the brick-masonry work. Although
Smith has not appeared in the action, it appears that he may
have been responsible for the framing work on the residence.
alleged in his third-party complaint that, if the
Barretts' assertions regarding the defects in the house
had merit, then Smith, Roman, and Beach were responsible.
Whitten stated claims against the third-party defendants
based on theories of common-law indemnity; breach of express
and implied warranties regarding their work, labor, and
materials; and breach of their duty " to exercise
reasonable care, and to comply with [their] contractual and
warranty obligations." Roman and Beach answered the
third-party complaint and denied liability; Smith, who was
served with the summons and complaint, never appeared in the
action. In May and June 2012, respectively, Roman and Beach
each filed a motion for a summary judgment on Whitten's
third-party claims against him.
26, 2012, the Barretts filed a second amended complaint, in
which they named Smith, Roman, and Beach as additional
defendants. The Barretts also asserted in their second
amended complaint that Whitten had, " on or about July
26, 2012," assigned to the Barretts " his rights to
make any claims against the subcontractors."
Accordingly, the Barretts asserted against Smith, Roman, and
Beach the same claims that Whitten had made in his
third-party complaint, namely, claims based on theories of
common-law indemnity; breach of express and implied
warranties regarding Smith's, Roman's and Beach's
work, labor, and materials; and breach of Smith's
Roman's, and Beach's duty " to exercise
reasonable care, and to comply with [their] contractual and
warranty obligations." The Barretts also included
against Smith, Roman, and Beach separate counts asserting
breach of an implied warranty of good workmanship and
breach of contract. Finally, the Barretts stated direct
claims against Smith, Roman, and Beach asserting that those
parties had negligently and wantonly constructed the house.
after the Barretts filed their second amended complaint, the
trial court entered summary judgments in favor of Roman and
Beach on Whitten's third-party claims against them. On
the same day, shortly after the trial court entered the
summary judgments on Whitten's third-party claims,
Whitten and the Barretts moved jointly to dismiss, with
prejudice, the Barretts' claims against Whitten. In their
motion to dismiss, the Barretts and Whitten asserted that
they had reached a settlement agreement and that Whitten had
assigned to the Barretts his claims against the
subcontractors that had worked on the construction of the
residence. The trial court granted the motion to dismiss.
August 2012, Roman and Beach each filed a motion for a
summary judgment on the Barretts' claims against him,
arguing, in part, that the Barretts' direct negligence
and wantonness claims were barred by the applicable two-year
statute of limitations. A week later, on August 15, 2012, the
Barretts filed a third amended complaint (styled as an "
amended second amended complaint" ), in which they
substituted Smith, Roman, and Beach for fictitiously named
defendants that had been named in the original complaint.
Roman and Beach later renewed and supplemented their
addition to their statute-of-limitations arguments, Roman and
Beach asserted that they did not owe the Barretts a duty and
that the claims Whitten had assigned to the Barretts were
without merit. On November 21, 2012, the trial court entered
summary judgments in favor of Roman and Beach on all the
Barretts' claims. After a default judgment was entered
against Smith, the Barretts timely appealed to our supreme
court, which, pursuant to § 12-2-7(6), Ala. Code 1975,
transferred the appeal to this court.
Standard of Review
standard of appellate review of a summary judgment is
" [An appellate court's] review of a summary
judgment is de novo. Williams v. State Farm Mut. Auto.
Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the
same standard of review as the trial court applied.
Specifically, we must determine whether the movant has made a
prima facie showing that no genuine issue of material fact
exists and that the movant is entitled to a judgment as a
matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross &
Blue Shield of Alabama v. Hodurski, 899 So.2d 949,
952-53 (Ala. 2004). In making such a determination, we must
review the evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.
1986). Once the movant makes a prima facie showing that there
is no genuine issue of material fact, the burden then shifts
to the nonmovant to produce 'substantial evidence' as
to the existence of a genuine issue of material fact.
Bass v. SouthTrust Bank of Baldwin County, 538 So.2d
794, 797-98 (Ala. 1989); Ala. Code 1975, §
Dow v. Alabama Democratic Party, 897 So.2d 1035,
1038-39 (Ala. 2004). " [S]ubstantial evidence is
evidence of such weight and quality that fair-minded persons
in the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved."
West v. Founders Life Assurance Co. of Florida, 547
So.2d 870, 871 (Ala. 1989).
Direct Claims of Negligence and Wantonness
Statute of Limitations
Barretts raised direct claims against Roman and Beach
asserting that those parties had negligently and wantonly
constructed the residence. In their motions for a summary
judgment, Roman and Beach argued that the Barretts'
claims were barred by the two-year statute of limitations set
out in § 6-2-38(l), Ala. Code 1975. The Barretts do not
dispute that a two-year limitations period applies or that
they failed to sue Roman and Beach until more than two years
after the limitations period began to run. The Barretts,
however, assert that, pursuant to fictitious-party practice,
their claims relate back to the date they filed their
original complaint and are, therefore, not
Barretts substituted Roman and Beach for fictitiously named
defendants when they filed their third amended complaint on
August 15, 2012. The Barretts argue that, under Rules
9(h) and 15(c)(4), Ala. R. Civ. P., a claim against a
defendant who is timely substituted for a fictitiously named
defendant relates back to the complaint in which the
fictitiously named defendant was first sued.
Weber v. Freeman, 3 So.3d 825 (Ala. 2008), our
supreme court restated the following principles applicable to
the relation-back doctrine and fictitious-party practice:
" '[I]n order to invoke the relation-back principles
of Rule 9(h), that is, in order for the amended complaint
with the defendant's true name to relate back to the
original complaint with the fictitious name, the plaintiff
must establish (1) that the plaintiff was ignorant of the
identity of the fictitiously named party, in the sense of
having no knowledge at the time the complaint was filed that
the party subsequently named was in fact the party intended
to be sued, Columbia Engineering International, Ltd. v.
Espey, 429 So.2d 955 (Ala. 1983); and (2) that the
plaintiff used due diligence to discover the defendant's
true identity before filing the original complaint,
Fulmer v. Clark Equipment Co., 654 So.2d 45 (Ala.
3 So.3d at 831-32 (quoting Ex parte Atkinson, 976
So.2d 1001, 1003 (Ala. 2007)). " If the plaintiff knows
the identity of the fictitiously named parties or possesses
sufficient facts to lead to the discovery of their identity
at the time of the filing of the complaint, relation back
under fictitious party practice is not permitted and the
running of the limitations period is not tolled."
Clay v. Walden Joint Venture, 611 So.2d 254, 256
undisputed that, at or near the time the Barretts closed on
the purchase of the house in February 2008, the Barretts
a list of some of the subcontractors who had worked on the
residence. That list specifically states that Roman performed
the roofing work on the house. Moreover, Robert Barrett
testified during his deposition that, before the Barretts
filed the lawsuit against Whitten and fictitiously named
defendants, he had actually spoken to Roman on the telephone
about repairing the roof. Accordingly, the undisputed
evidence clearly shows that the Barretts were not ignorant of
the fact that Roman was one of the defendants they intended
to sue when they filed the original complaint. Thus, we
affirm the trial court's summary judgment on the
Barretts' direct claims against Roman asserting
negligence and wantonness in the construction of the
name does not appear on the referenced list of
subcontractors, and the record does not otherwise support the
conclusion that the Barretts had actual knowledge when they
filed their original complaint that Beach was the party they
should have sued regarding the defective brick-masonry work.
As noted, however, a plaintiff must use due diligence to
discover a defendant's true identity before suing a
fictitiously named defendant.
" 'The test for determining whether a party
exercised due diligence in attempting to ascertain the
identity of the fictitiously named defendant is "
whether the plaintiff knew, or should have known, or was on
notice, that the substituted defendants were in fact the
parties described fictitiously." Davis v. Mims,
510 So.2d 227, 229 (Ala. 1987).
" 'As evidence of due diligence, [a court] looks to,
among other things, whether the plaintiff has conducted
formal or informal discovery. " Although it is true that
formal discovery is not the only method of determining the
identity of a fictitiously named defendant, it commonly is
vital to demonstrating due diligence because it provides
objective evidence of the plaintiff's case
activity." Ex parte Hensel Phelps Constr. Co.,
7 So.3d 999, 1004 (Ala. 2008). The conducting of formal
discovery does not necessarily prove due diligence, however.
See, e.g., Jones v. Resorcon, Inc., 604 So.2d 370,
373 (Ala. 1992) (finding a lack of due diligence where the
plaintiff failed to seek a court order permitting inspection
of a fan after the defendant refused to allow the
plaintiff's requested access to the fan; inspection of
the fan that allegedly caused the plaintiff's injury
would have revealed the name of the fan's manufacturer).
" '[Our supreme court] has found a lack of due
diligence even when a plaintiff has conducted both formal and
informal discovery. See, e.g., Ex parte Mobile Infirmary
Ass'n, 74 So.3d 424 (Ala. 2011) (finding a lack of
due diligence where the plaintiff had inquired informally of
defense counsel as to who should be the proper defendants,
had searched the Alabama Secretary of State's Web site,
and had propounded interrogatories directed at determining
the proper identities of the defendants, but waited until
after the limitations period had expired to amend the
complaint). See also Crowl v. Kayo Oil Co., 848
So.2d 930 (Ala. 2002) (finding a lack of due diligence where
the plaintiff was relying on interrogatories to determine the
identities of the defendants, and the defendants never
answered the interrogatories).'"
Ex parte Noland Hosp. Montgomery, LLC, 127 So.3d
1160, 1167 (Ala. 2012) (quoting Ex parte Tate & Lyle
Sucralose, Inc., 81 So.3d 1217, 1221 (Ala. 2011)).
instant case, the Barretts did not exercise the required
diligence. Robert Barrett testified during his deposition
before he filed the complaint, he worked with both Whitten
and Fugate in an effort to remedy the problems with the
construction. The Barretts alleged in their original
complaint that the brick work on the residence was defective.
In their brief to this court, however, the Barretts do not
identify any formal or informal steps, supported by the
record, that they took before filing the lawsuit in an effort
to identify the person or persons who should have been sued
because of the defective brick work. Rather, the only effort
to which the Barretts cite is their attorney's deposing
of Beach, which occurred on March 22, 2012, more than four
years after the Barretts purchased the house and, shortly
thereafter, discovered water leaks.
even if a plaintiff exercises the necessary diligence before
filing a complaint against fictitiously named defendants,
" a plaintiff, after filing suit, must proceed in a
reasonably diligent manner to determine the true identity of
a fictitiously named defendant." Ex parte FMC
Corp., 599 So.2d 592, 593 (Ala. 1992). Again, the only
effort to which the Barretts cite is the deposition of Beach,
which occurred almost two years after the Barretts filed the
original complaint. Because the Barretts did not exercise the
required diligence in attempting to discover Beach's
identity, the trial court properly concluded that the
Barretts' direct claims against Beach asserting
negligence and wantonness are time-barred.
Lack of Duty
alternative ground for affirming the summary judgments on the
Barretts' negligence and wantonness claims, Roman and
Beach argue that they did not owe a duty to the Barretts. We
Keck v. Dryvit Systems, Inc., 830 So.2d 1 (Ala. 2002),
our supreme court upheld a summary judgment in favor of the
manufacturer, the distributor, and the installer of an
exterior insulation finishing system (" EIFS" ),
which allegedly had been installed incorrectly on the
plaintiffs' residence, which they had purchased from the
previous owner. In affirming the judgment, the supreme court
concluded that the defendants did not owe the plaintiffs a
duty, notwithstanding the fact that contractual privity is
not necessarily required to establish the existence of a
" '" [W]here one party to a contract assumes a
duty to another party to that contract, and it is foreseeable
that injury to a third party -- not a party to the contract
-- may occur upon a breach of that duty, the promissor owes
that duty to all those within the foreseeable area of
" Ex parte Grand Manor, Inc., 778 So.2d 173,
178 (Ala. 2000) (quoting Harris v. Board of Water & Sewer
Comm'rs of the City of Mobile, 294 Ala. 606, 613,
320 So.2d 624 (1975)).
" In the present case, the ... defendants did not enter
into a contract to manufacture and apply the EIFS to a house
owned by the [plaintiffs]. As subsequent purchasers of the
house, the [plaintiffs] had no relationship with, and no
other contact with, the builder of the house or any of the
... defendants. Because the [plaintiffs] did not enter into a
contract with the ... defendants
to apply the EIFS to the house, because the [plaintiffs] were
not the intended purchasers of the house when the EIFS was
applied during the construction of the house, and because the
... defendants could not have anticipated when or if the
[plaintiffs] would purchase the house, the ... defendants
owed the [plaintiffs] no duty to manufacture and apply the
EIFS with reasonable care."
Id. at 9-10.
and Beach did not enter into contracts to perform the roofing
and brick-masonry work on a house owned by the Barretts. The
Barretts did not have an agreement with Whitten or anyone
else for the construction of the residence. The Barretts were
not the intended purchasers of the house when it was
constructed. The Barretts did not have contracts with Roman
or Beach. Thus, like the defendants in Keck, Roman and Beach
could not have anticipated when or if the Barretts would
purchase the house.
Barretts assert that Keck is distinguishable because, they
say, they purchased their house directly from the builder,
Whitten, whereas the plaintiffs in Keck purchased their house
from the first owner. That argument is unpersuasive, however,
because the conclusion in Keck was based primarily on the
fact that the defendants in that case were not participating
in the construction of a house intended to be occupied by the
particular plaintiffs and could not have anticipated that
those plaintiffs would purchase the house. The fact that
Whitten may have been the builder, in addition to being the
original owner, is a distinction without a difference.
Barretts also argue that Keck is inapplicable to their
negligence and wantonness claims because, they say, the
alleged duty owed by Roman and Beach is not based on
agreements those defendants had with the builder of the house
but, rather, on duties imposed by their licenses with the
City of Huntsville to engage in residential construction. The
Barretts do not, however, cite any authority for the
proposition that such a license imposes a duty upon a
contractor that would support a private cause of action by
the subsequent purchaser of a residence for property damage
caused by faulty construction. See Harris v. Owens,
105 So.3d 430, 436 (Ala. 2012) (discussing Rule 28, Ala. R.
App. P., and an appellant's duty to demonstrate error on
the part of the trial court by supporting his or her
arguments with citations to supporting authority).
Barretts have not shown that Roman and Beach owed them a
duty, which is an essential element of negligence and
wantonness claims. See McKelvin v. Smith, 85 So.3d
386, 390 (Ala.Civ. 2010). Thus, the trial court correctly
entered the summary judgments in favor of Roman and Beach on
the Barretts' direct negligence and wantonness claims.
Lack of Evidence of Assignment
noted, the Barretts asserted in their second and third
amended complaints that Whitten had assigned them his rights
to make any claims against the subcontractors that had worked
on the construction of the residence. Pursuant to that
assignment, counsel for both the Barretts and Whitten filed a
joint stipulation of dismissal in which they expressly
stipulated that Whitten had assigned his claims to the
Barretts. Thus, Whitten's own counsel has expressly
admitted that the assignment took place and that his client
no longer has interests in the claims. Of course, statements
of counsel are not evidence. Hicks v. Jackson Cnty.
Comm'n, 990 So.2d 904, 905 n.1 (Ala.Civ. 2008).
Accordingly, Roman and Beach argue that there is no actual
evidence in the record
indicating that Whitten had indeed assigned his claims to the
support of their motions for a summary judgment, Roman and
Beach did not argue to the trial court that there was no
evidence of an assignment. Indeed, it appears that all the
parties below operated under the assumption that an
assignment had, in fact, occurred. Thus, the Barretts assert,
this court should disregard the argument.
true that this court will affirm a trial court's judgment
on any valid legal ground supported by the record. That rule,
however, " fails in application ... where a
summary-judgment movant has not asserted before the trial
court a failure of the nonmovant's evidence on an element
of a claim or defense and therefore has not shifted the
burden of producing substantial evidence in support of that
element ...." Liberty Nat'l Life Ins. Co. v.
University of Alabama Health Servs. Found., P.C., 881
So.2d 1013, 1020 (Ala. 2003). Because Roman and Beach never
shifted the burden on this issue to the Barretts, this court
will not affirm on the basis of the lack of evidence of an
Alleged Failure to Appeal the Summary Judgments in Favor of
Roman and Beach on Whitten's Claims
argues in his brief to this court that the Barretts did not
appeal from the summary judgments in favor of Roman and Beach
on Whitten's third-party claims and, thus, cannot argue
on appeal that the trial court erred in entering summary
judgments against the Barretts as assignees of those claims.
Beach points out that the Barretts did not identify in their
notice of appeal the summary judgment against Whitten as one
of the judgments from which the Barretts were appealing.
Assuming that the Barretts were required to formally appeal
from that judgment, Rule 3(c), Ala. R. App. P., specifically
states that the designation in a notice of appeal of the
judgment to be reviewed " shall not ... limit the scope
of appellate review." Accordingly, we reject Beach's
undisputed that, pursuant to the assignment from Whitten, the
Barretts asserted claims against Roman and Beach of breach of
express and implied warranties regarding their work, labor,
and materials; common-law indemnity; and breach
of duty " to exercise reasonable care, and to comply
with [their] contractual and warranty obligations."
There appears to be some confusion as to whether the
Barretts' additional claims asserting breach of an
implied warranty of good workmanship and breach of contract
were also assigned claims (see supra note 1). In any event,
those claims appear to be subsumed by the claims asserting
breach of express and implied warranties and breach of duty
" to comply with ... contractual obligations,"
which undisputedly were assigned by Whitten.
and Beach, by adopting Roman's arguments, asserted in
support of their summary-judgment motions that there could be
no breach of an express warranty unless Roman and Beach had
written contracts with Whitten. They also argued that there
could be no breach of an implied warranty unless (1) Roman
and Beach had built a new residence for Whitten, (2) Whitten
bought the new residence from Roman and Beach, and (3) there
was an express warranty to build the residence per plans and
specifications. The Barretts do not address those arguments
on appeal. Accordingly, the summary judgments on the
Barretts' claims alleging breach of express and implied
warranties regarding work, labor, and materials and breach of
an implied warranty of good workmanship are due to be
affirmed. See Soutullo v. Mobile Cnty., 58 So.3d
733, 739 (Ala. 2010) ( " [T]he failure of the appellant
to discuss in the opening brief an issue on which the trial
court might have relied as a basis for its judgment results
in an affirmance of that judgment." ).
further support of their summary-judgment motions, Roman and
Beach argued that all of the Barretts' assigned claims
were based on contracts entered into by Whitten or Fugate
that were illegal because Whitten or Fugate, or both, should
have been licensed under the Alabama Home Builders Licensure
Act (" the Act" ), § 34-14A-1 et seq., Ala.
Code 1975. See § 34-14A-5, Ala. Code 1975 (" All
residential home builders shall be required to be licensed by
the Home Builders Licensure Board annually." ). Section
34-14A-14, Ala. Code 1975, provides, in part, that " [a]
residential home builder, who does not have the license
required, shall not bring or maintain any action to enforce
the provisions of any contract for residential home building
which he or she entered into in violation of this
chapter." According to Roman and Beach, because the
Barretts' assigned claims are based on contracts entered
into by Whitten or Fugate that violate the Act, the Barretts
are barred from pursuing those claims.
Barretts respond with the assertion that Whitten was the
builder on the project and that Fugate was simply his agent
for purposes of choosing subcontractors and entering into
contracts on Whitten's behalf. Thus, they argue, it is
irrelevant that Fugate was not licensed.
Barretts assert, " a summary judgment on the issue of
agency is generally inappropriate because agency is a
question of fact to be determined by the trier of fact."
Kennedy v. Western Sizzlin Corp., 857 So.2d 71, 77
(Ala. 2003). " 'This is not to say, however, that
agency may be presumed; the party asserting it has the burden
of adducing [substantial] evidence to prove its
existence.'" Id. (quoting Wood v. Shell
Oil, 495 So.2d 1034, 1035-36 (Ala. 1986) (alteration in
Kennedy)). The Barretts point out that Whitten, not Fugate,
paid Roman and Beach for their work. Roman and Beach
essentially ignore this fact and do not provide any
explanation as to why Whitten would provide the consideration
for Roman's and Beach's performance under their
subcontracts if Whitten was not a party to those contracts.
Roman conceded in his summary-judgment motion that "
Whitten gave Fugate full authority to act as his agent, with
power to select, hire, and fire subcontractors," and
Beach adopted and incorporated all of Roman's arguments.
Thus, this court cannot conclude that there is no question of
fact as to whether Fugate acted as Whitten's agent and
entered into the subcontracts on his behalf.
Barretts vigorously argue that a property owner, such as
Whitten, cannot be barred from enforcing his or her contract
with an unlicensed homebuilder. They do not, however, assert
that an unlicensed homebuilder can enforce his or her
subcontracts, nor do they cite any authority for that
proposition. Accordingly, it is not disputed in this case
that, if Whitten was required to be licensed as a homebuilder
when he entered into the subcontracts with Roman and Beach,
then Whitten (and by assignment, the Barretts) cannot recover
on the assigned claims. See also § 34-14A-14, Ala. Code
1975 (" A residential home builder, who does not have
the license required, shall not bring or maintain any action
to enforce the provisions of any contract for residential
home building which he or she entered into in violation of
this chapter." (Emphasis added.)).
Barretts argue that Whitten was not required to have a
homebuilder's license because, they say, he was an "
owner builder" who was exempt from the licensing
requirements. The Barretts suggest that a builder, who
initially decides to build a residence for himself or
herself, never has to be licensed, even if he or she decides
before construction is complete that he or she will not
occupy the residence and, instead, will sell it once it is
finished. We disagree.
§ 34-14A-5(a), Ala. Code 1975, " [a]ll residential
home builders shall be required to be licensed ...."
Section 34-14A-2(10), Ala. Code 1975, defines "
residential home builder," in relevant part, as "
[o]ne who constructs a residence ... for sale" and
provides that " [a]nyone who engages or offers to engage
in such undertaking in this state shall be deemed to have
engaged in the business of residential home building."
At least from the time Whitten determined that he was going
to construct the house for sale, he was a " residential
home builder," who was " engaged in the business of
residential home building," under § 34-14A-2(10).
Barretts rely primarily on § 34-14A-6(5), Ala. Code
1975, which provides an exemption from the homebuilder
licensing requirements for " [o]wners of property when
acting as their own contractor and providing all material
supervision themselves, when building or improving one-family
or two-family residences on such property for the occupancy
or use of such owners and not offered for sale." The
plain language of § 34-14A-6(5) exempts owners of
property from the licensing requirements " when building
or improving one-family or two-family residences on such
property for the occupancy or use of such owners and not
offered for sale." (Emphasis added.) Obviously, once
Whitten decided that he would not occupy the house and,
instead, would sell it, he was no longer " building or
improving ... [a residence] on [his] property for the
occupancy or use of [himself] and not offered for sale."
Barretts emphasize an additional portion of the exemption set
out in § 34-14A-6(5), which provides:
" In any action brought under this chapter [for a
violation of the licensing
requirements], proof of the sale or offering for sale of such
structure by the owners of property, as provided in this
subdivision, within one year after completion of same is
presumptive evidence that the construction was undertaken for
the purpose of sale."
(Emphasis added.) The Barretts suggest that the use of the
phrase " was undertaken" shows that the legislature
intended to require licensure of only those builders who, at
the time they first start building a residence, intend to
sell the residence, and not to those that set out initially
to build their own residence but, during construction, change
disagree that that portion of § 34-14A-6(5) was intended
to modify or qualify the provision exempting property owners
" when" they are building or improving residences
for their own occupancy or use. The term "
undertaken" does not necessarily refer to the first time
construction begins. Black's Law Dictionary 1759 (10th
ed. 2014), defines " undertake," in part, as "
[t]o take on an obligation or task." A property owner
can begin construction for purposes of his or her own
occupancy and, at a later time, take on the obligation or
task of construction for the purpose of sale.
the legislature's purpose in enacting the Act was as
" In the interest of the public health, safety, welfare,
and consumer protection and to regulate the home building and
private dwelling construction industry, the purpose of this
chapter, and the intent of the Legislature in passing it, is
to provide for the licensure of those persons who engage in
home building and private dwelling construction, including
remodeling, and to provide home building standards in the
State of Alabama. The Legislature recognizes that the home
building and home improvement construction industries are
significant industries. Home builders may pose significant
harm to the public when unqualified, incompetent, or
dishonest home building contractors and remodelers provide
inadequate, unsafe, or inferior building services. The
Legislature finds it necessary to regulate the residential
home building and remodeling construction industries."
§ 34-14A-1, Ala. Code 1975. See also Hooks v.
Pickens, 940 So.2d 1029, 1031-32 (Ala.Civ. 2006)
(stating that the purpose of the homebuilder-licensing
requirements is the protection of the public from
unqualified, incompetent, or dishonest homebuilders). The
legislature's purpose would be defeated if a property
owner, who has not met the requirements for obtaining a
homebuilder's license, could start building a residence
for himself or herself and, at any point during the
construction, decide to sell the residence to a member of the
public. " Because the Act was intended for the benefit
of the public, our caselaw requires that it be construed most
favorably to the public." State Home Builders
Licensure Bd. v. Sowell, 699 So.2d 214, 219 (Ala.Civ.
1997) (superseded by statute on other grounds, as recognized
in Hutchenson v. Daniel, 53 So.3d 909, 915 (Ala.Civ.
Barretts also contend that the definition of "
residential home builder," referenced above, actually
supports their position that Whitten never had to be
licensed. Specifically, the Barretts emphasize a portion near
the end of § 34-14A-2(10), which defines "
residential home builder" as
" [o]ne who constructs a residence or structure for sale
or who, for a fixed price, commission, fee, or wage,
undertakes or offers to undertake the construction or
superintending of the construction, or who manages,
supervises, assists, or provides consultation to a
homeowner regarding the construction or superintending of the
construction, of any residence or structure which is not over
three floors in height and which does not have more than four
units in an apartment complex, or the repair, improvement, or
reimprovement thereof, to be used by another as a residence
when the cost of the undertaking exceeds ten thousand dollars
($10,000). Nothing herein shall prevent any person from
performing these acts on his or her own residence or on his
or her other real estate holdings. Anyone who engages or
offers to engage in such undertaking in this state shall be
deemed to have engaged in the business of residential home
(Emphasis added.) The Barretts suggest that, pursuant to the
above-emphasized language, the owner of a piece of real
property may, without a license, perform all the acts
referenced in § 34-14A-2(10), one of which is the
construction of a residence for sale. We disagree.
Barretts' argument would require this court to conclude
that the legislature, in the first portion of the definition
of " residential home builder," indicated that such
term encompasses those persons that build residences with the
intent to sell them and, at the end of the very same
definition, indicated the opposite. Accepting the
Barretts' argument would render the first portion of the
definition meaningless. " [T]he Legislature will not be
presumed to have done a futile thing in enacting a statute;
there is a presumption that the Legislature intended a just
and reasonable construction and did not enact a statute that
has no practical meaning." Weathers v. City of
Oxford, 895 So.2d 305, 309 (Ala.Civ. 2004).
our opinion that, in stating that the definition of "
residential home builder" should not be construed to
preclude a person from performing " these acts" on
his or her own residence or on his or her other real-estate
holdings, the legislature intended to make clear that
property owners wanting to build residences or structures for
their own occupancy, or to make improvements or repairs
thereto, are not required to become licensed homebuilders
first. Our conclusion is buttressed by the exemption set out
in § 34-14A-6(5) for " owner builders," which
is clearly intended to exempt those property owners that are
building their own residences. See Hooks v. Pickens,
940 So.2d 1029, 1031 (Ala.Civ. 2006) (indicating that the Act
must be interpreted as a whole).
the expressly stated legislative purpose of protecting the
public from unqualified, incompetent, or dishonest
homebuilders would be defeated if property owners could build
residences for sale without being licensed. A developer would
be at liberty to buy real property and build houses for sale
to the public without undergoing the vetting necessary to
obtain a homebuilder's license. We do not believe the
legislature intended such a result. See State Home Builders
Licensure Bd. v. Sowell, supra (stating that the Act must be
construed most favorably to the public). We thus conclude
that Whitten was required to be licensed at least from the
point in time when he was no longer constructing the
residence for himself.
the Barretts do not dispute that Whitten could not recover
via any theory of liability if he entered into the
subcontracts with Roman and Beach while required to be
licensed, the Barretts assert that there is " no
evidence Whitten changed his mind about occupying the house
at the time the contracts [with Roman and Beach] were entered
into." (Emphasis added.) Notably, however, the Barretts
do not affirmatively assert that
Whitten did not change his mind until after Roman and Beach
were hired, and they do not cite any evidence that would
support such a conclusion.
testified as follows regarding his decision that he would not
occupy the residence:
" [Counsel for the Barretts:] Q. ... In your own words,
tell me a little bit about the role that Robert [Fugate]
played in building your house ....
" A. ... We started it.
" And after a while, you know, it was like I can't
do it. It's too much time, too many problems there. So,
at the framing stage I asked him to go ahead and finish it,
basically split the profit with me. So that's what
" Q. ... Once the footing is poured, then the block
mason would show up and start doing the perimeter of the
foundation before the framing would start. Was this before
you had decided that this house may not be for you and your
family and be sold?
" A. No.
" Q. After the block foundation was finished, the next
thing that should have been done would be the framing where
they started putting the wood on top of the block foundation.
Is that about the time that you said that things started to
change for you and your expectations?
" A. That's when -- yes. During the framing is when
I went to [Fugate] and said, you know, if you can finish this
up for me, then we'll just split the profit, if there is
" Q. Can you give me your best recollection about what
stage the house was at or what would have been the first
subcontractor that was working on the job when Robert
[Fugate] began doing this for a fee as opposed to doing it as
" THE WITNESS: It was during the framing stage.
" Q. ... But the framer had not been -- not completed
" A. Right. " ....
" Q. You said you gave up or you decided not to finish
building the house for yourself sometime certainly before the
framing was done; is that right?
" A. Correct."
(Emphasis added.) Thus, Whitten's testimony indicates
that he delegated to Fugate the primary responsibility for
construction " during the framing stage" but that
he had actually decided that he would not occupy the house at
some point before framing even started.
and Roman's testimony indicates that they were hired at a
stage of construction that occurred after Whitten had decided
that he would not occupy the residence. Specifically, Beach,
the brick mason, testified as follows regarding the point in
time at which he was hired:
" [Counsel for the Barretts:] Q. Do you remember how you
got involved in that, how you may have met Mr. Fugate for the
first time or became acquainted with him?
" A. I do. I was bricking a house for Ricky Clark kind
of catty-corner to this house here and just walked over
there. I was finishing up this project within a week, so I
walked over there and talked to Robert [Fugate] and asked --
walked in the garage and said, 'Is the builder here?'
" And Robert Fugate spoke up and said it was him. And I
said, Well, 'I'd
like to ... do your brick job for you, if you don't
" He said, 'How much?'
" And I told him. And he said, 'Okay.'"
the roofer, testified as follows:
" [Counsel for the Barretts:] Q. ... Do you remember
meeting somebody and talking to them about this house,
discussing the fact that you would do this job in the first
" A. I do not remember. The only thing I remember is
that it was a phone call.
" Q. All right. Was the phone call you're referring
to from Mr. Fugate?
" A. It was from Mr. Fugate. " ....
" Q. Okay. So you had a call from Mr. Fugate. And even
if you can't remember exactly what was said, he was
interested in your roofing services?
" A. Correct.
" Q. Did you agree to meet, or did you make a deal on
the phone, or do you recall?
" A. I think we met, met up one time. "
" Q. Did you meet at the house?
" A. Yes.
" Q. Tell me about the meeting, what you can recall.
" A. We only talk [sic] about when the roofing was going
to be shipped out to the jobsite, when we were going to
start. That was it, and agree on the price. ...
" Q. All right. Was the house almost ready for roofing?
Do you remember what stage the house was in?
" A. I believe it was, I would say, a week away."
testimony shows that he was hired at a point in time when the
garage of the residence had already taken shape, and
Roman's testimony shows that he was hired only a week
away from the start of the roofing. As noted, Whitten
testified that, before framing even started, he had already
decided he would not live in the residence once it was
finished. Thus, the record is clear that there is no genuine
issue of fact regarding whether Roman and Beach entered into
their subcontracts at a time when Whitten was required to be
licensed as a homebuilder. Accordingly, the trial court
correctly entered the summary judgments in favor of Roman and
Beach on all the Barretts' assigned claims.
P.J., and Thomas, Moore, and Donaldson, JJ., concur.
The second amended complaint does not
clearly indicate that the Barretts obtained those specific
two causes of action via the assignment from Whitten,
although the Barretts make that assertion on appeal.
The parties do not state exactly when the
Barretts were allegedly damaged. Accordingly, it is not clear
to this court whether the original complaint itself was filed
within two years of the date the limitations period began to
run. There is, however, no dispute that the Barretts did not
substitute Roman and Beach for fictitiously named defendants
until after the two-year limitations period expired.
The Barretts claim that they intended to
substitute Roman and Beach for fictitiously named defendants
in their second amended complaint, which was filed on
July 26, 2012. It is clear, however, that they did not
actually do so until they filed the third amended
The Barretts also argue that, in order to
avoid relation back, Roman and Beach were required to show
that they were actually prejudiced by their substitution for
fictitiously named defendants. None of the cases the
Barretts cite in support of their argument, however, involved
fictitious-party practice, much less a lack of diligence in
determining the true identity of a fictitiously named
The Barretts attach a copy of a written
assignment, which does not appear in the appellate record, as
an appendix to their reply brief. Beach has moved to strike
the appendix. Because this court cannot consider matters
outside the appellate record, Beach's motion is well
taken, and, accordingly, Beach's motion to strike is
granted. See Etherton v. City of Homewood, 700 So.2d
1374, 1378 (Ala. 1997) (stating that appellate courts will
not consider matters outside the appellate record).
We also note here that Roman and Beach did
not support their summary-judgment motions with an argument
that the type of claims assigned by Whitten cannot, as
a matter of law, be validly assigned. We express no opinion
as to that issue.
Roman and Beach assert that, without an
assignment, the Barretts did not have standing to pursue the
allegedly assigned claims and that, therefore, the trial
court lacked subject-matter jurisdiction over those claims.
We disagree. Cf. Ex parte Simpson, 36 So.3d 15,
24-25 (Ala. 2009) (holding that the doctrine of real party in
interest, as opposed to standing, was implicated by the issue
whether a party was entitled to sue a governmental entity
alleging inverse condemnation after the party allegedly had
assigned away its rights to litigate, and to recover
compensation for, governmental takings). See
generally Ex parte BAC Home Loans Servicing, L.P., 159
So.3d 31 (Ala. 2013) (discussing standing and distinguishing
that concept from others, such as real party in interest and
failure to state a claim).
We express no opinion as to whether Fugate
was also bound by the pertinent contracts.
It is not necessary for the court to decide
whether the fact that Whitten should have been licensed when
Roman and Beach actually performed the work under their
subcontracts would also bar the assigned claims against Roman