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Beasley v. 500 Finishes Corp.

United States District Court, M.D. Alabama, Northern Division

August 13, 2018




         This case is about the house that Defendant 500 Finishes Corporation did not finish. Plaintiffs Steven E. S. Beasley and Martha S. Beasley hired 500 Finishes, through its agent Defendant John P. Carroll, to build their house. Construction did not go as planned. When the funds allotted in the contract were depleted - and then some - and the house still was not finished, the Beasleys and the builders parted ways. The Beasleys then learned that not only was their house over budget and under built, but that portions of the house that had been constructed were not up to par. They filed suit in Alabama state court, and 500 Finishes and Mr. Carroll removed to this court, before which is Defendants' motion for partial summary judgment (Doc. # 20), as well as various motions regarding evidentiary submissions related to that motion (Docs. # 24 & 26). Upon careful consideration, and after complete briefing (Docs. # 21, 22, 23, 25, & 27), the motion for partial summary judgment will be granted in part and denied in part, Plaintiffs' motion to allow a supplemental expert witness disclosure (Doc. # 26) will be granted, and Defendants' motion to strike (Doc. # 24) will be construed as a Rule 56(c)(2) objection and sustained in part and overruled in part.


         Diversity jurisdiction is exercised pursuant to 28 U.S.C. § 1332(a). Plaintiffs are citizens of Alabama, Defendants of Florida. (Doc. # 1, at 3.) Defendants, who removed this action from Alabama state court, have met their burden of showing by a preponderance of the evidence that the amount in controversy exceeds $75, 000. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010). Venue is uncontested.


         As the parties moving for summary judgment, Defendants carry the burden of demonstrating “that there is no genuine dispute as to any material fact and [that they are] entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court views the evidence, and makes all reasonable inferences drawn therefrom, in the light most favorable to Plaintiffs as the nonmoving parties. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

         The summary judgment movant “always bears the initial responsibility of informing the district court of the basis for the motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying the portions of the record that demonstrate the absence of a genuine dispute of material fact. Id. Alternatively, movants like Defendants who do not have a trial burden of production can assert, without citing the record, that the nonmoving party “cannot produce admissible evidence to support” a material fact. Fed.R.Civ.P. 56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee's note (“Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials. . . . [A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact.”).

         If Defendants meet their burden, the burden will shift to Plaintiffs to establish, with evidence beyond the pleadings, that a genuine dispute material to each of their claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute of material fact means that there is evidence produced that would allow a reasonable fact finder to return a verdict in the non-moving party's favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001) (citation omitted).


         Mr. and Mrs. Beasley bought a plot of land in Tallassee, Alabama, in December 2013. The following November they contracted with 500 Finishes to build a house on that land for $236, 186. Mr. Carroll signed the contract on behalf of 500 Finishes and oversaw construction. According to the contract, the work was to be “substantially complete on or about 6/20/2015.” (Doc. # 1-1, at 22.)

         Construction began near the end of January 2015. It took longer, and became more expensive, than anyone planned. Though the parties dispute the exact nature of the events that then unfolded (compare Doc. # 21, at 4, with Doc. # 22, at 2), here is how Mr. Beasley described what happened:

The contract calls for Mr. Carroll to build our home in a workmanlike manner, and we were to pay him $236, 186.00. My wife and I obtained a construction mortgage to pay for the home, after which Mr. Carroll began construction on the home. . . . We were many months into construction, and our construction mortgage was exhausted; however, Mr. Carroll was nowhere near finished with construction. I informed Mr. Carroll that we were out of money in our construction account, and we needed to get some things resolved about the home, as I did not have an unlimited supply of money to put into the construction of our home. Mr. Carroll stated that he needed an additional approximately $50, 000.00 to finish the home. I asked him whether he would be able to finish the job for another $50, 000.00, and he assured me that he could. Based on that representation, I obtained an additional $50, 000.00 from the bank to complete the construction.
More months passed, and we were still not finished with construction. At that point, my additional funds that I had obtained had been depleted to about $20, 000 with no end to the construction in sight. At that point, we were nearly one (1) year beyond the date set out in the contract for the completion of construction. My wife and I told Mr. Carroll that, at that point, we did not have additional money to put into the house, particularly because I had no assurance that the home would be completed within a reasonable amount of time, and we had no assurance as to how much money it would take to finish the house. At the conclusion of the communications, Mr. Carroll could not give me a completion date for the home if [sic] even if I could obtain additional funds, and he was unable to give me any statement of how much money it would take to complete the home.
At that point, my wife and I discussed the matter, after which we informed Mr. Carroll that we were not going to put any more money into the home, as we were already approximately $30, 000.00 over budget and no end in sight. Just before construction ended, Mr. Carroll brought some interior cabinet doors to the house. The quality of the work done on the cabinet doors was terrible. At that point, we had paid him everything we were required under the contract to pay and more, and we had no more money to put into the house, which we told Mr. Carroll. Mr. Carroll did not respond. He simply never came back to do more work. He offered to purchase the house from us for the contract price of $236, 186.00, which did not include the purchase price for the land, which was in excess of $60, 000.00, or the supplemental loan of $50, 000.00, which would have been a tremendous loss to us.

(Doc. # 22-2, at 7-8.)[1]

         Defendants offer a slightly different, though not necessarily conflicting, interpretation. They note that “[c]onstruction by 500 Finishes progressed until Plaintiffs believed the home could not be completed for the remaining funds available, ” and that “[u]ltimately, Plaintiffs terminated the relationship and did not allow 500 Finishes to complete the construction of the home.” (Doc. # 21, at 4 (citations omitted).) All parties agree that “[t]he construction of the home was not completed by 500 Finishes.” (Doc. # 21, at 4.)

         Once the Beasleys and 500 Finishes parted ways in the spring of 2016, the Beasleys engaged at least two home inspectors to inspect the house. The inspectors found numerous flaws in construction, and one concluded that “it may not be possible to bring all components of the structure into conformity with today's standards.” (Doc. # 22-4, at 9.)[2] The Beasleys eventually hired a different contractor to complete the house. (Doc. # 22-4, at 16 n. 6.)

         The Beasleys also filed suit against 500 Finishes and Mr. Carroll. In their complaint filed in Alabama state court, they alleged twelve claims for relief: (1) breach of contract, (2) breach of warranty of workmanlike construction, (3) breach of warranty of habitability, (4) negligent construction, (5) wanton construction, (6) negligent hiring, training, and/or supervision, (7) wanton hiring, training, and or supervision, (8) misrepresentation of a material fact, (9) suppression of material facts, (10) deceit, (11) fraudulent deceit, and (12) continuing fraud. (Doc. # 1-1.)

         Following removal and discovery, Defendants now move for partial summary judgment.


         Defendants seek summary judgment on all claims against Mr. Carroll, as well as all claims against 500 Finishes except for breach of contract (count 1) and negligent construction (count 4). (Doc. # 21, at 5.) They also contest the admissibility of two evidentiary submissions the Beasleys reference and attach in their opposition to Defendants' motion. (Doc. # 24.) Because the resolution of the latter motions will determine what evidence the court will consider in determining the former, the court will address the evidentiary issues first.

         A. Motions to strike and supplement

         In their brief in opposition to Defendants' motion for partial summary judgment, Plaintiffs attach, among other documents, (1) an affidavit by Mr. Beasley, and (2) inspection reports of the house by Brent Garrett. (See Doc. # 22-2, at 6; Doc. # 22-4, at 27-47.) Defendants move to strike the exhibits as improper and inadmissible. (Doc. # 24.) The Beasleys have responded to that motion, and also move to allow a supplemental expert witness disclosure to cure any ...

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