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Barrett v. Roman

Alabama Court of Civil Appeals

May 8, 2015

Robert N. Barrett and Tracy C. Barrett
v.
Carlos Roman d/b/a Carlos Roman Roofing, and Bobby Beach d/b/a Just Brick It Masonry

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[Copyrighted Material Omitted]

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          Appeal from Madison Circuit Court. (CV-10-900557).

          OPINION

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          PITTMAN, Judge.

         Robert 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 affirm.

         I. Facts and Procedural History

         This is 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.

         In July 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.

         At some 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. Whitten

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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 April 2007.

         On 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.

         According 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.

         On May 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.

         On 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.

         Whitten 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.

         On July 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

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breach of contract.[1] Finally, the Barretts stated direct claims against Smith, Roman, and Beach asserting that those parties had negligently and wantonly constructed the house.

         The day 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.

         In 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 summary-judgment motions.

         In 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.

         II. Standard of Review

          The standard of appellate review of a summary judgment is settled:

" [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, § 12-21-12."

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

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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).

         III. Analysis

         A. Direct Claims of Negligence and Wantonness

         i. Statute of Limitations

         The 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 time-barred.[2]

         The Barretts substituted Roman and Beach for fictitiously named defendants when they filed their third amended complaint on August 15, 2012.[3] 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.

         In 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. 1995).'"

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 (Ala. 1992).

         It is undisputed that, at or near the time the Barretts closed on the purchase of the house in February 2008, the Barretts received

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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 residence.

         Beach's 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)).

         In the instant case, the Barretts did not exercise the required diligence. Robert Barrett testified during his deposition that,

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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 ...


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