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Colony Homes, LLC v. Acme Brick Tile & Stone, Inc.

Alabama Court of Civil Appeals

July 14, 2017

Colony Homes, LLC, Mark Schlauder, and William Spriggs
v.
Acme Brick Tile & Stone, Inc.

         Appeal from Baldwin Circuit Court (CV-16-900538)

          PITTMAN, Judge.

         Colony Homes, LLC ("Colony"), Mark Schlauder, and William Spriggs appeal from a summary judgment entered by the Baldwin Circuit Court ("the trial court") in favor of Acme Brick Tile & Stone, Inc. We dismiss the appeal in part and affirm the judgment of the trial court.

         Factual Background and Procedural History

         In 2011, Brick Acquisition Company, which was a Delaware corporation and a subsidiary of Acme Brick Company, a Delaware corporation, purchased some of the assets of Jenkins Brick & Tile Company, LLC, which included, among other things, the right to use the name "Jenkins Brick" and any derivatives of that name. In 2012, Brick Acquisition Company, using the name Jenkins Brick Company, entered into a written contract ("the contract") with Colony, a company that acts as a general contractor in the construction business. Under the terms of the contract, Brick Acquisition Company agreed to provide Colony with bricks, mortar, and other building materials on credit, and Colony agreed to pay Brick Acquisition Company for them. Schlauder and Spriggs, who are associated with Colony, personally guaranteed Colony's performance under the contract. In 2014, Brick Acquisition Company changed its name to Acme Brick Tile & Stone, Inc. ("Acme"). In December 2015, Acme began supplying bricks, mortar, and other building materials on credit to Colony for the construction of a house ("the house") for Gary R. Bernard and Jacqueline R. Bernard in Baldwin County and for use in other construction jobs. In April 2016, Acme recorded a materialman's lien against the house, alleging that Acme was owed $7, 086.22 for bricks, mortar, and other building materials used to construct the house, plus interest and an attorney fee.

         In May 2016, Acme sued Colony, Schlauder, and Spriggs, stating claims seeking recovery of $11, 337.14 for bricks, mortar, and other building materials that Acme had supplied Colony on credit for the construction of the house and for use in other construction jobs, plus interest, costs, and an attorney fee.[1] In July 2016, when Colony, Schlauder, and Spriggs had failed to answer the complaint or otherwise defend, Acme sought and obtained default judgments against them that awarded Acme $11, 337.14 in damages to compensate Acme for the debt Colony, Schlauder, and Spriggs owed Acme, plus costs, interest in the amount of $844.23, and an attorney fee in the amount of $2, 834.29. Colony, Schlauder, and Spriggs subsequently filed a motion asking the trial court to set aside the default judgments on the ground that their failure to answer had resulted from their mistaken belief that an answer had been filed on their behalf. Although Acme opposed the motion to set aside the default judgments, the trial court granted the motion.

         Thereafter, Colony, Schlauder, and Spriggs answered Acme's complaint.[2] Colony, Schlauder, and Spriggs subsequently filed (1) an amended answer in which they asserted that the contract required that Acme's claims be resolved by arbitration and (2) a motion asking the trial court to compel arbitration of those claims. Acme objected to the motion to compel arbitration, and, on September 8, 2016, the trial court entered an order sustaining Acme's objection to the motion to compel arbitration, which effectively denied that motion. Colony, Schlauder, and Spriggs did not file a notice of appeal challenging the trial court's order refusing to compel arbitration within 42 days after the entry of that order.

         Thereafter, Acme filed a motion for a summary judgment with respect to its claims against Colony, Schlauder, and Spriggs and supported the motion with evidence. Colony, Schlauder, and Spriggs then filed a response and evidence in opposition to the summary-judgment motion. On November 8, 2016, the trial court entered a summary judgment in favor of Acme and against Colony, Schlauder, and Spriggs, which awarded Acme $11, 337.14 in compensation for the debt Colony, Schlauder, and Spriggs owed Acme, interest on that debt in the amount of $1, 285.91, and an attorney fee in the amount of $7, 174.27. Colony, Schlauder, and Spriggs filed a notice of appeal to this court on December 20, 2016.

         Standard of Review

"[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). [The appellate court] appl[ies] the same standard of review as the trial court applied. Specifically, [the appellate court] 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, [the appellate court] 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. '[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 Assur. Co. of Fla., 547 So.2d 870, 871 (Ala. 1989)."

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004).

         Analysis

         Colony, Schlauder, and Spriggs first attempt to challenge the trial court's September 8, 2016, order refusing to compel arbitration of Acme's claims. However, Colony, Schlauder, and Spriggs did not file a notice of appeal challenging that order within 42 days after September 8, 2016, the date that order was entered. Rule 4(d), Ala. R. App. P., provides:

"An order granting or denying a motion to compel arbitration is appealable as a matter of right, and any appeal from such an order must be taken within 42 days (6 weeks) of the date of the entry of the order, or within the time allowed by an extension ...

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