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