Desouza v. Lauderdale

• Decision Date: 30 June 2005
• Docket Number: 2031051.
• Citation: 928 So.2d 1035
• Parties: Pearl DESOUZA and Kimberly Desouza v. Don LAUDERDALE et al.
• Court: Alabama Court of Civil Appeals

928 So.2d 1035

Pearl DESOUZA and Kimberly Desouza v.Don LAUDERDALE et al.

2031051.

Court of Civil Appeals of Alabama.

June 30, 2005.

Rehearing Denied September 2, 2005.

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Joey K. James of Bunch & James, Florence, for appellants.

Winston V. Legge, Jr., and T. Mark Maclin of Wilmer & Lee, PA, Athens, for appellees.

PITTMAN, Judge.

Pearl Desouza and Kimberly Desouza appeal from a summary judgment in favor of Don Lauderdale and Sheila Lauderdale, "Lauderdale Land Company," and Joey Burgreen("Burgreen").The record does not reveal whether "Lauderdale Land Company" is an entity subject to suit.In their motion to dismiss, the Lauderdales asserted that "Lauderdale Land Company" was merely a trade name under which the Lauderdales do business.For purposes of this opinion, we will treat the claims against "Lauderdale Land Company" as if they are subsumed within the claims against the Lauderdales.We affirm in part, reverse in part, and remand.

The procedural history and pertinent facts in this case are as follows: On March 31, 1995, the Desouzas purchased a house in Athens from the Lauderdales.The house's exterior had been clad with an Exterior Insulation Finish System "EIFS"¹ composed of a material more commonly known as "synthetic stucco."Shortly before purchasing the house, the Desouzas retained a house-inspection company, Home Buyer's Inspection Service, to conduct an inspection of the house.The report of that house inspection, which was conducted on March 22, 1995, failed to disclose any defect in the EIFS exterior cladding.²In connection with the house's purchase, the Desouzas also applied for and obtained an express warranty from the Residential Warranty Corporation.The warranty afforded the Desouzas protection for a 10-year period subject to certain exclusions and limitations.

In August 2001, the Desouzas were advised by a neighbor that they needed to consult with a particular attorney about their house.The Desouzas later met with the attorney, who informed the Desouzas that their house may have begun "deteriorating."On September 28, 2001, more than six years and six months after the Desouzas had purchased the house, the attorney filed a complaint on behalf of the Desouzas in Limestone Circuit Court, naming as defendants the Lauderdales, "Lauderdale Land Company," Burgreen, Cell Pest Control, Home Buyer's Inspection Service, and Residential Warranty Corporation, and asserting claims of negligence, fraud, breach of contract, and breach of warranty.The Desouzas alleged that their causes of action arose from the design and construction of the house.In March 2002, the Desouzas amended their fraud claim against the Lauderdales and "Lauderdale Land Company,³ asserting that the Desouzas had discovered in November 2001 that the EIFS exterior had begun failing and was allowing moisture to intrude between the interior and exterior walls of the house.Eleven months later, the Desouzas retained an engineering firm, Jade Engineering and Inspection, Inc., to conduct an on-site inspection of the EIFS at the Desouzas' house.The firm's June 2003 report determined that the EIFS had been improperly installed and that high moisture conditions had been detected in the house's exterior walls that appeared to have emanated from the structure's roof line, windows, and doors.In May 2003, the Desouzas retained a second engineering firm, Mid-South Testing, Inc., to conduct an environmental assessment of the house.That firm's subsequent report noted visible mold growth in two areas of the house's northwest bedroom that appeared to have been caused by a leak in the roof.The report also noted elevated moisture levels in the closet area of the northwest bedroom, in the house's attic area, and around the door frame and gypsum board located near the house's front door.

In August 2003, the Lauderdales and Burgreen filed a motion for a summary judgment asserting that all the Desouzas' claims had been untimely filed and were, therefore, barred by the applicable statute of limitations.Eventually, the trial court either dismissed or entered a summary judgment as to all of the Desouzas' claims except those against the Lauderdales, "Lauderdale Land Company," and Burgreen.In July 2004, the trial court entered a summary judgment in favor of those defendants on the remaining claims in the case.The Desouzas filed a timely notice of appeal as to the summary judgment against the Lauderdales, Lauderdale Land Company and Burgreen; the Alabama Supreme Court transferred the appeal to this court pursuant to § 12-2-7(6),Ala.Code 1975.

Our review of a summary judgment is de novo.

"An appellate court reviews a summary judgment by the same standard the trial court uses in determining whether to grant a summary-judgment motion.Pryor v. Brown & Root USA, Inc.,674 So.2d 45, 47(Ala.1995);Bussey v. John Deere Co.,531 So.2d 860, 862(Ala.1988).A summary judgment is appropriate if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law.Rule 56(c)(3), Ala. R. Civ. P.The movant has the burden of making a prima facie showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law.Bass v. SouthTrust Bank of Baldwin County,538 So.2d 794, 797-98(Ala.1989).If the moving party makes that prima facie showing, then the burden shifts to the nonmoving party, who then has the burden of presenting substantial evidence creating a genuine issue of material fact.Id.In determining whether the evidence creates a genuine issue of material fact, this court must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co.,622 So.2d 314(Ala.1993).Evidence is `substantial' if it is 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 Assurance Co. of Florida,547 So.2d 870, 871(Ala.1989)."

Millican v. McKinney,886 So.2d 841, 843(Ala.Civ.App.2003).Additionally, "[o]ur

review is further subject to the caveat that [we] must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant."Brewer v. Woodall,608 So.2d 370, 372(Ala.1992).

With respect to the Desouzas' first two issues asserted on appeal, they contend, without citing to authority, (1) that Burgreen was not entitled to a summary judgment because he failed to affirmatively assert a statute-of-limitations defense in a responsive pleading and (2) that "Lauderdale Land Company" failed to file a formal summary-judgment motion.We note that the Desouzas' failure to cite legal authority in support of their argument violates the requirements of Rule 28(a)(10), Ala. R.App. P.(requiring that arguments in a brief contain "citations to the cases, statutes, other authorities, and parts of the record relied on")."This court will not consider on appeal issues that are not properly presented and argued in brief."James v. Old Republic Sur.,674 So.2d 615, 618(Ala.Civ.App.1996);see alsoSpradlin v. Birmingham Airport Auth.,613 So.2d 347, 347(Ala.1993).Therefore, because the Desouzas have failed to comply with the provisions of Rule 28, Ala. R.App. P., as to those two arguments, they are deemed to be waived on appeal and we pretermit further discussion of them.

The Desouzas next contend that the trial court erred in entering the summary judgment in favor of the Lauderdales and Burgreen as to the Desouzas' negligence claim because, they say, their cause of action accrued upon the discovery of the alleged defect in November 2001.The Desouzas cite Ala.Code 1975, § 6-5-220(e), which allows an action to be commenced, in certain instances, within two years from the date of the plaintiff's discovery of any latent damage or defects.That discovery rule is limited to actions against an "architect, engineer, or builder."Ala.Code 1975, § 6-5-221.Section 6-5-220(a) defines a "builder" as follows:

"Any individual, partnership, firm, or corporation that constructed, or performed or managed the construction of, an improvement, or any portion thereof, on or to real estate, and at the time of the construction was licensed as a general contractor in the State of Alabama."

The Lauderdales and Burgreen counter that the Desouzas failed to show that the Lauderdales or Burgreen were "builders" so as to subject the claims against them to the "discovery" rule.They argue that the Desouzas' negligence claim is instead subject to the provisions of Ala.Code 1975, § 6-2-(38)(l), providing that "[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years."The Lauderdales and Burgreen argue that the defects in the house were not latent defects; they posit that the exterior design and installation of the EIFS was the actual defect in the house and should have been discovered by the Desouzas at or before the time of the house's purchase.

It is well-settled law in Alabama that the statutory limitations period as to tort claims begins to run when the cause of action accrues.Jackson v. Secor Bank,646 So.2d 1377, 1379(Ala.1994).Even if we were to accept the Lauderdales' and Burgreen's argument that the Desouzas' negligence claim is subject to the provisions of Ala.Code 1975, § 6-2-38(l), a question of material fact would still remain as to the date that the Desouzas' negligence action actually accrued.The Supreme Court in Payne v. Alabama Cemetery Association, Inc.,413 So.2d 1067(Ala.1982), analyzed Alabama case law generally relating to the accrual of a cause of action arising from a tort as follows:

"`The statute ... will not begin to run until some injury occurs...