United States District Court, M.D. Alabama, Northern Division
STEVEN E. S. BEASLEY and MARTHA S. BEASLEY, Plaintiffs,
500 FINISHES CORPORATION and JOHN P. CARROLL, Defendants.
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.
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.
JURISDICTION AND VENUE
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.
STANDARD OF REVIEW
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).
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
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).
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.)
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
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
(Doc. # 22-2, at 7-8.)
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.)
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.) The Beasleys eventually hired a different
contractor to complete the house. (Doc. # 22-4, at 16 n. 6.)
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.)
removal and discovery, Defendants now move for partial
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.
Motions to strike and supplement
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 ...