from Baldwin Circuit Court (CV-16-900538)
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.
Background and Procedural History
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.
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
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.
Colony, Schlauder, and Spriggs answered Acme's
complaint. 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.
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.
"[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).
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 ...