Crum v. Johns Manville, Inc.

• Decision Date: 13 March 2009
• Docket Number: 2070869.
• Citation: 19 So.3d 208
• Parties: Richard M. CRUM et al. v. JOHNS MANVILLE, INC., et al.
• Court: Alabama Court of Civil Appeals

19 So.3d 208

Richard M. CRUM et al. v. JOHNS MANVILLE, INC., et al.

2070869.

Court of Civil Appeals of Alabama.

March 13, 2009.

Richard E. Crum of Shealy, Crum & Pike, P.C., Dothan, for appellants.

Eric D. Franz and Devin C. Dolive of Burr & Forman, LLP, Birmingham, for appellee Johns Manville, Inc.

E. Clark Summerford and Gaines B. Brake of Zeanah, Hust, Summerford & Williamson, Tuscaloosa, for appellee Tip-Top Roofing and Sheet Metal, Inc.

THOMPSON, Presiding Judge.

Richard M. Crum, R.M. Crum Construction Company, Inc., R.M. Crum Construction Company of Alabama, Inc., and the Crum Family Limited Partnership (collectively, "the Crum plaintiffs") appeal from a judgment of the Madison Circuit Court dismissing several of their claims against Johns Manville, Inc. ("Johns Manville"), and Tip-Top Roofing and Sheet Metal, Inc. ("Tip-Top"). For the reasons set forth herein, we affirm the judgment in part and reverse it in part.

On October 12, 2007, the Crum plaintiffs filed an action against Johns Manville, Tip-Top, and several fictitiously named parties in which the Crum plaintiffs alleged that they had purchased a roofing system from Johns Manville for a building they were constructing. The Crum plaintiffs alleged that Johns Manville had guaranteed the roofing system for a period of 10 years and that, during that period, numerous problems with the roofing system had occurred, including leaks, which they had reported to Johns Manville. According to the complaint, Tip-Top, as Johns Manville's representative and under Johns Manville's direction, had "allegedly repaired the roof problems," but the roofing system continued to experience problems. The Crum plaintiffs alleged that, despite their demands, nothing had been done to rectify the problems with the roofing system. They alleged that Johns Manville had agreed to extend its guarantee of the roofing system but that it ultimately had failed to do so. The Crum plaintiffs' complaint against Johns Manville and Tip-Top included claims of negligence and wantonness, fraud, misrepresentation, breach of contract, breach of express warranty, breach of implied warranty, and breach of the implied warranty of fitness for a particular purpose.¹

On November 6, 2007, Tip-Top filed a motion to stay the case and to compel arbitration. It argued that all the Crum plaintiffs' claims were subject to arbitration under a clause in Tip-Top's subcontract with plaintiff R.M. Crum Construction Company, Inc. Tip-Top attached to its motion a copy of the guarantee that Johns Manville's predecessor-in-interest had issued to R.M. Crum Construction Company, Inc., as well as a copy of its subcontract with that plaintiff.

On November 19, 2007, Johns Manville filed a motion to join Tip-Top's motion to stay or, in the alternative, to dismiss or to order a more definite statement. Johns Manville argued that the trial court should stay the action pending its determination of whether the Crum plaintiffs were required to arbitrate their claims against Tip-Top.

On December 3, 2007, the Crum plaintiffs filed a response to the motion to compel arbitration in which they argued that the arbitration agreement contained in the subcontract was ineffective as drafted. On December 19, 2007, Tip-Top filed a motion to dismiss or, in the alternative, for a more definite statement, adopting as its grounds those grounds set forth in Johns Manville's motion.

On January 14, 2008, the trial court denied the motion to compel arbitration and ordered the Crum plaintiffs to file an amended complaint. On January 29, 2008 the Crum plaintiffs complied with the trial court's order and filed an amended complaint that set forth additional allegations in support of their claims.

On January 31, 2008, Johns Manville filed a motion to dismiss the Crum plaintiffs' amended complaint. On February 14, 2008, Tip-Top filed a motion to dismiss the Crum plaintiffs' amended complaint.

On May 1, 2008, the trial court held a hearing on the motions to dismiss. On May 8, 2008, it entered a judgment granting in part and denying in part those motions. As to Johns Manville, the trial court dismissed all the Crum plaintiffs' claims except for their claims asserting negligence and breach of express warranty. As to Tip-Top, the trial court dismissed all the Crum plaintiffs' claims except for their claim alleging negligence. The trial court made its judgment final pursuant to Rule 54(b), Ala. R. Civ. P. The Crum plaintiffs timely appealed to this court. This court transferred the appeal to the supreme court for lack of appellate jurisdiction. The supreme court transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The standard by which we review a dismissal pursuant to Rule 12(b)(6), Ala. R. Civ. P., is well settled.

"On appeal, a dismissal is not entitled to a presumption of correctness. . . . The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. . . . In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail."

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). Our supreme court has held that "`"[m]otions to dismiss should be granted sparingly, and a dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief."'" DRC, Inc. v. Great American Ins. Cos., 901 So.2d 710, 713 (Ala.2004) (quoting Gilliland v. USCO Power Equip. Corp., 631 So.2d 938, 939 (Ala.1994), quoting in turn Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986)). Furthermore, "[i]n considering whether a complaint is sufficient to withstand a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P., a court `must accept the allegations of the complaint as true.'" Crosslin v. Health Care Auth. of Huntsville, 5 So.3d 1193, 1195 (Ala.2008) (quoting Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002)).²

The Crum plaintiffs contend that the trial court erred when it granted in part Johns Manville's and Tip-Top's motions to dismiss. They argue that the amended complaint satisfied the pleading requirements of Rules 8 and 9, Ala. R. Civ. P. Specifically, they contend that it is not beyond doubt that they could prove no set of facts as to each of their claims that would entitle them to relief.

Rule 8, Ala. R. Civ. P., sets forth the general requirements for pleadings. In pertinent part, it provides:

"(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.

". . . .

"(e) Pleading to Be Concise and Direct; Consistency.

"(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

"(2) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or on equitable grounds, or on both. All statements shall be made subject to the obligations set forth in Rule 11.

"(f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice."

Our supreme court has written that "the primary purpose of pleading is to provide fair notice to adverse parties of any claim against them and the grounds upon which it rests. . . . Generally, the pleadings, in and of themselves, are considered relatively unimportant because cases are to be decided on the merits." Johnson v. City of Mobile, 475 So.2d 517, 519 (Ala.1985). Discussing the issue whether a pleading complies with Rule 8, this court wrote in Mitchell v. Mitchell, 506 So.2d 1009 (Ala. Civ.App.1987):

"[Rule 8] is complied with if the claim for relief gives to the opponent fair notice of the pleader's claim and the grounds upon which it rests. Carter v. Calhoun County Board of Education, 345 So.2d 1351 (Ala.1977). The discovery process bears the burden of filling in the factual details. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1215, p. 110 (1969). A fair reading and study of the Alabama Rules of Civil Procedure lead to the determination that pleading technicalities are now largely avoided and that the pleading of legal conclusions is not prohibited, as long as the requisite fair notice is provided thereby to the opponent."

Mitchell, 506 So.2d at 1010.

In the first count of the amended complaint, titled "negligence and/or wantonness," the Crum plaintiffs made the following allegations:

"11. Plaintiffs constructed a building located at 645 Wynn Drive, Huntsville, Alabama 35816, and [at] that time, purchased a roof system from Defendant, Johns Manville.

"12. The roofing system purchased from Defendant, Johns Manville, was guaranteed for a period of ten (10) years.

"13. Over a period of years, numerous problems with the roof have occurred. These include but are not limited to leaks. On each occasion, leaks or other problems were reported to Defendant, Johns Manville.

"14. Defendant, Tip-Top Roofing and Sheet Metal, Inc., as the official Johns Manville representative and under the direction of Defendant, Johns Manville, allegedly...