Ex parte Grand Manor, Inc.

• Decision Date: 31 March 2000
• Citation: 778 So.2d 173
• Parties: Ex parte GRAND MANOR, INC. (Re Grand Manor, Inc. v. Vicky H. Dykes and Benny J. Dykes).
• Court: Alabama Supreme Court

778 So.2d 173

Ex parte GRAND MANOR, INC.

(Re Grand Manor, Inc. v. Vicky H. Dykes and Benny J. Dykes).

1980348.

Supreme Court of Alabama.

March 31, 2000.

John R. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for petitioner.

J. Tutt Barrett of Dean & Barrett, Opelika; Susan G. Copeland of Law Office of J. Doyle Fuller, Montgomery, for respondents.

SEE, Justice.

Vicky Dykes and Benny Dykes, wife and husband, sued Grand Manor, Inc., seeking, among other things, compensatory damages for an alleged decrease in the value of their new mobile home, which had been manufactured by Grand Manor, and for mental anguish they claimed to have suffered when they experienced problems with the mobile home. Following a trial, the jury returned a general verdict awarding the Dykeses $12,500 in damages against Grand Manor. The trial court entered a judgment on that verdict. Grand Manor appealed. The Court of Civil Appeals affirmed. Grand Manor, Inc. v. Dykes, 778 So.2d 167 (Ala.Civ.App.1998). We granted certiorari review to consider whether the trial court erred in denying Grand Manor's motion for a judgment as a matter of law ("JML"—formerly the motion for a directed verdict and the motion for a JNOV) and submitting the Dykeses' claims to the jury. We conclude that the trial court erred by submitting the Dykeses' claim alleging "negligent manufacture" to the jury; therefore, we reverse and remand.

I.

In September 1995, the Dykeses visited Better Cents Home Builders, Inc. ("Better Cents"), a mobile-home retailer, looking for a mobile home to buy. Better Cents ordered a mobile home for the Dykeses from Grand Manor, a mobile-home manufacturer. The order form bore the Dykeses' names, and the mobile home was to be manufactured according to the Dykeses' specifications. The cost of the mobile home, including the items that the Dykeses specifically requested, was $48,500. In October 1995, Grand Manor delivered the mobile home to Better Cents, and, in November 1995, Better Cents installed the mobile home on the Dykeses' lot. Grand Manor provided a written one-year warranty with the mobile home. Shortly after they moved in, the Dykeses noticed a number of problems, namely, discoloration of the kitchen cabinets; dimming of the lights when they used the electrical outlets in the master bedroom, bathroom, and living room; backing up and overflowing of the toilets, which caused the carpet to get wet; and a drop in cold-water pressure in the showers whenever the toilet was flushed, a problem that on one occasion caused the Dykeses' son to be scalded. The Dykeses notified Better Cents of these problems and gave Better Cents a list of the problems they were having with the mobile home. The list included those just mentioned here and also problems regarding damaged and flawed cabinets and molding, uneven tile, doors that would not close, loose Formica on the kitchen countertop, and a large crack in a bedroom wall.

On December 22, 1995, Better Cents contacted the Dykeses and informed them that they must on that day close the loan they were securing for financing the purchase of their mobile home or else move out. The Dykeses informed Better Cents that they were unwilling to close until the problems with the mobile home were fixed. Better Cents told them that if they would agree to close, then, at the closing, Better Cents would execute a written agreement to make the repairs.

For the closing, the Dykeses met Robert Banks, who was an officer of Better Cents Home Builders, Inc., and the manager of its retail establishment. During the closing, the Dykeses prepared, on a Grand Manor "Repair Service Order," a list of the problems with the mobile home they wanted corrected. The list was attached to and made a part of a written agreement between the Dykeses and Banks acting on behalf of Better Cents. Under the terms of the agreement, Better Cents agreed that it would, by January 17, 1996, underpin and properly set up the mobile home and correct the problems on the list. Before the agreement was executed, Banks telephoned J.T. Hogan, the service manager of Grand Manor, and read to Hogan the Dykeses' list of problems. Mrs. Dykes testified at trial that Banks told her and her husband that Grand Manor had agreed that by January 17, 1996, it would correct all of the problems on the list. The Dykeses did not talk directly to Hogan. Based on the agreement and on Banks's representation, the Dykeses closed the loan transaction to finance the purchase of the mobile home.

On January 3, 1996, a Grand Manor employee, Mike Mathis, went to the Dykeses' mobile home and made some repairs, but he did not have the materials he needed to complete all of the repairs. Mathis returned on January 9 and did some additional work. Mrs. Dykes, however, refused to sign the work order, because it stated that the work was "complete." According to Mrs. Dykes's testimony, the major problems with the cabinets, plumbing, and electricity had not been repaired. She telephoned Hogan at Grand Manor, and he told her that Grand Manor would make no further repairs. On February 6, 1996, Mrs. Dykes faxed a message to Banks asking about the repair of the problems with the cabinets, the plumbing, and the electricity. On February 15, 1996, Mrs. Dykes telephoned Better Cents and spoke with Banks. Banks informed her that Better Cents would not perform any repairs because, he said, the problems were not its responsibility, and informed her that Grand Manor was also refusing to make any further repairs.

In November 1997, the Dykeses sued Grand Manor and Better Cents. They asserted only three tort claims: negligent manufacture, against Grand Manor; negligent delivery and installation, against Better Cents; and promissory fraud, against both Grand Manor and Better Cents.¹ Grand Manor and Better Cents moved for JMLs at the close of the Dykeses' evidence; the court denied the motion. They renewed that motion at the close of all the evidence. The trial court denied that renewed motion also and submitted the case to the jury. The jury returned a general verdict for $12,500 against Grand Manor and for $12,500 against Better Cents. Grand Manor again moved for a JML. The trial court denied that motion. Grand Manor appealed to the Court of Civil Appeals, which affirmed. Grand Manor appealed, but Better Cents did not.

II.

Grand Manor argues that the trial court erred in denying its motion for a JML on the negligent-manufacture claim, the promissory-fraud claim, and the negligent-delivery and negligent-installation claim. In American National Fire Insurance Co. v. Hughes, 624 So.2d 1362 (Ala. 1993), this Court stated the standard that applies to appellate review of a trial court's ruling on a motion for a JML:

"The standard of review applicable to a ruling on a motion for JNOV is identical to the standard used by the trial court in granting or denying a motion for directed verdict. Thus, in reviewing the trial court's ruling on the motion, we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.

". . . .

"... In ruling on a motion for a JNOV, the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been `substantial evidence' before the jury to create a question of fact. `[S]ubstantial evidence is evidence 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.'"

Id. at 1366-67 (citations omitted). In a case where several claims are submitted to the jury, over JML motions by the defendant, and the jury renders a general verdict as to those claims, on appeal this Court must determine whether the plaintiff presented substantial evidence in support of each of the claims. See Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3, 8 (Ala.1997)

. This Court will not presume that the general verdict was returned on a "good count" (i.e., on a count or claim supported by substantial evidence); rather, "[i]f a verdict should have been directed as to one or more of the claims, then the judgment based on those claims must be reversed." Id. However, where the defendant does not challenge the "bad counts" (i.e., those not supported by substantial evidence) with specificity in his motions for JML, this Court will presume that the verdict was returned on the "good count." See Goodyear Tire & Rubber Co. v. Washington, 719 So.2d 774, 778 (Ala.1998); Aspinwall v. Gowens, 405 So.2d 134, 138 (Ala.1981).²

A. The Negligent-Manufacture Claim

Grand Manor argues that the trial court erred in denying its motion for a JML on the negligent-manufacture claim, because, it argues, Grand Manor had no contractual relationship with the Dykeses and the only injury was to the mobile home itself. Grand Manor, relying on Sterchi Bros. Stores, Inc. v. Castleberry, 236 Ala. 349, 182 So. 474 (1938), asserts that, as a general rule of Alabama law, a manufacturer is not liable, for negligent manufacturer of a product, to third persons who have no contractual relationship with the manufacturer. In Sterchi Bros. Stores, this Court did state that "the general rule is that a contractor, vendor, or manufacturer is not liable to third parties, who have no contractual relation with him, for negligence in the construction, manufacture, or sale of the articles he handles." 182 So. at 476, 236 Ala. at 351.³ However, it is well established under more recent precedent that an ultimate consumer can recover in negligence against a manufacturer even in the absence of privity of contract:

"[W]here one party to a contract assumes a duty to another party to that contract, and it is foreseeable that injury to a third party—not a party to the contract—may occur upon a breach of that

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