Bella Invs., Inc. v. Multi Family Servs., Inc.

• Decision Date: 22 November 2013
• Docket Number: 2120478.
• Citation: 148 So.3d 716
• Parties: BELLA INVESTMENTS, INC. v. MULTI FAMILY SERVICES, INC.
• Court: Alabama Court of Civil Appeals

148 So.3d 716

BELLA INVESTMENTS, INC.

v.MULTI FAMILY SERVICES, INC.

2120478.

Court of Civil Appeals of Alabama.

Nov. 22, 2013.

Certiorari Denied Feb. 14, 2014

T. Blake Liveoak of Liveoak & Boyles, LLC, Birmingham, for appellant.

Kile T. Turner and W.M. Bains Fleming III of Norman, Wood, Kendrick & Turner, Birmingham, for appellee.

Opinion

THOMAS, Judge.

Bella Investments, Inc.(“Bella”), appeals from a judgment as a matter of law (“JML”) entered by the Jefferson Circuit Court(“the trial court”) in favor of Multi Family Services, Inc.(“MFS”), on Bella's negligent-construction and fraudulent-suppression claims.Additionally, Bella appeals the trial court's denial of its motion for a JML on its negligent-construction and fraudulent-suppression claims.

This is the third time these parties have been before this court.SeeBella Invs., Inc. v. Multi Family Servs., Inc.,80 So.3d 921(Ala.Civ.App.2011)(“Bella I ”);andBella Invs., Inc. v. Multi Family Servs., Inc.,97 So.3d 787(Ala.Civ.App.2012)(“Bella II ”).The procedural history of this case is set forth in Bella II:

“ ‘In June 2003, Bella entered into a contract with MFS for MFS to serve as the general contractor for the construction of a hotel in Gardendale.The contract between the parties included a warranty provision, warranting MFS's work for one year from the issuance of the certificate of occupancy.MFS, in turn, contracted with various other entities, including David & Company Architects, Inc.(“David & Company”), to serve as the architects for the project and Danny Hawkins d/b/a Danny Hawkins Floor Covering (“Hawkins”) to serve as a subcontractor to install tile flooring in the hotel.

“ ‘The building inspector for the City of Gardendale inspected the hotel on April 5, 2006, and, that same day, issued a certificate of occupancy for the hotel.At the time that the certificate of occupancy was issued, several issues, including cracking in some of the floor tiles, remained outstanding and had been listed on a punch list of items for MFS to remedy.Bella also made requests under the warranty provision of the contract for MFS to repair cracked floor tiles in the hotel.According to Bella, problems with cracking floor tiles continued and MFS failed to remedy the issue.

“ ‘On August 4, 2008, Bella sued MFS, C. Boyd Edgerton, in his individual capacity, David & Company, and various fictitiously named defendants in the Marshall Circuit Court.In its complaint, Bella asserted claims of negligence/wantonness, negligent hiring and supervision, suppression, and breach of contract.Bella also asserted that MFS's subcontractors were liable to Bella because Bella was a third-party beneficiary to the contracts between MFS and the subcontractors.Bella then moved the Marshall Circuit Court to transfer the action to the Jefferson Circuit Court; MFS and Edgerton joined Bella's motion to transfer the action.On September, 30, 2008, the Marshall Circuit Court transferred the action to the Jefferson Circuit Court....

“ ‘On November 3, 2008, Bella amended its complaint, reasserting its claims and substituting Layne Structural, Gonzales Strength & Associates, Inc., Tusco Fence, Inc., and Whiten Pools for some of the fictitiously named defendants.MFS answered Bella's complaint, denying all its material allegations and asserting certain affirmative defenses, including the statute of limitations.MFS also asserted a counterclaim against Bella, alleging that Bella had breached its contract with MFS by failing to pay MFS the full amount owed under the contract.In addition, MFS asserted a third-party complaint against Suresh Parmar and Bharti Parmar, in their individual capacities, alleging that the Parmars had executed a note in favor of MFS, which they had not paid.On May 5, 2010, Bella filed a second amended complaint, reasserting its claims and substituting Hawkins for one of the fictitiously named defendants.

“ ‘On June 14, 2010, MFS moved the trial court for a summary judgment on all Bella's claims against it.MFS asserted three bases in support of its summary-judgment motion: (1) that all Bella's claims were barred by the applicable statute of limitations, as provided in § 6–5–221,Ala.Code 1975;(2) that Bella did not provide MFS with notice of its claims, in contravention of the contract between the parties; and (3) that there was no genuine issue of material fact concerning Bella's suppression claim.MFS also submitted evidence in support of its summary-judgment motion.Bella filed a brief in opposition to MFS's summary-judgment motion and submitted evidence in support of its brief in opposition.

“ ‘On September 23, 2010, the trial court entered a summary judgment in favor of MFS on all Bella's claims against it.In its order, the trial court stated that it had determined, among other things, that Bella's claims were barred by the statute of limitations.The summary-judgment order also stated that “[t]his order shall not affect [Bella's] claims against DefendantsDavid & Company ... and [Hawkins],” the only other defendants still remaining in the action....Bella filed a purported postjudgment motion requesting that the trial court alter, amend, or vacate its summary-judgment order, which the trial court denied.Bella subsequently appealed to the Alabama Supreme Court.Our supreme court transferred the appeal to this court, pursuant to § 12–2–7(6),Ala.Code 1975.’

“Bella [I ], 80 So.3d at 922–24(footnotes omitted).

“In Bella [I ], we dismissed Bella's appeal as having been taken from a nonfinal judgment because several claims against other defendants as well as MFS's counterclaim and third-party claims were still pending in the trial court and the trial court had failed to certify the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.Id. at 924.

“After this court issued a certificate of judgment in Bella [I ], on October 13, 2011, MFS filed a motion to dismiss its counterclaim against Bella and its third-party claims against Suresh Parmar and Bharti Parmar without prejudice.Additionally, on October 13, 2011, Bella filed a stipulation of dismissal with the trial court, noting that it stipulated to the dismissal of all its claims against David & Company and Hawkins.That same day the trial court entered an order dismissing MFS's counterclaim and third-party claims and Bella's claims against David & Company and Hawkins.On October 28, 2011, Bella filed a timely notice of appeal; its appeal was transferred by the supreme court to this court, pursuant to Ala.Code 1975, § 12–2–7(6).”

Bella II,97 So.3d at 790–91.

In addressing the appeal in Bella II,this court affirmed “the trial court's summary judgment in favor of MFS on Bella's wantonness claim, third-party-beneficiary claim, negligent-hiring, -supervision, and -training claim, breach-of-contract claim, and negligent-construction claim regarding the widespread cracking of tile flooring.”Id. at 800.However, we reversed the “the trial court's summary judgment in favor of MFS on Bella's [fraudulent-] suppression claim and its negligent-construction claim” insofar as it related to defects with the doors, buckling floors, and improper installation of the fiber-cement siding, and we remanded the action for further proceedings.Id.On remand, the trial court held a jury trial regarding Bella's fraudulent-suppression claim and its negligent-construction claim regarding the floors, the doors, and the siding.

The testimony revealed the following facts pertinent to this appeal.Suresh Parmar testified that he is one of the two principals of Bella Investments; his wife, Bharti Parmar, is the other principal.He testified that Bella was formed to construct the Microtel Inn in Gardendale (“the hotel”).Suresh testified that the total project cost $4,000,000 and that the total contract price between Bella and MFS for construction of the hotel was $2,275,408.He further testified that Bella and MFS reached an agreement that the construction price would be $2,275,408 around 2003 but that, due to financing issues, construction of the hotel did not begin until 2005.However, he testified that MFS honored the 2003 construction-contract price of $2,275,408 in 2005.He testified that the hotel was completed on time, that the hotel's certificate of occupancy was issued on April 5, 2006, and that April 19, 2006, was the hotel's first day of business.

Suresh testified that he had relied on MFS to follow the applicable building codes and the building plans throughout its construction of the hotel.He further testified that, at the end of construction, Bella had provided MFS with a “punch list” identifying items to be rectified and that he was not aware of whether MFS had made an attempt to correct those items, although, he said, MFS had indicated that it intended to meet its obligations to Bella in an e-mail exchange.He testified that the punch list did not include problems with the siding, the concrete flooring system, or the installation of the doors.Additionally, he testified that MFS never informed him that the siding had been misapplied, that the flooring system was improper, or that the doors had not been installed correctly and that he would have expected MFS, the general contractor, to tell him that information.He also testified that operational issues could impact the value or income of the hotel.

Richard Laframboise testified that he is employed at E-services, Inc., that he has an Alabama home-inspection license, and that he is certified by the International Code Council as a building inspector.He testified that he had inspected the hotel on August 5, 2010, and then again on October 31, 2012.He testified that his inspections revealed that a flooring membrane, or felt paper, was missing on the second and third floors, that the siding and flashing on the exterior of the hotel had been improperly installed, and that framing issues had caused problems with the doors within the hotel.He opined that the missing felt paper had led to the...