Franklin v. Mitchell

• Decision Date: 13 January 2012
• Docket Number: 2091053.
• Citation: 87 So.3d 573
• Parties: Angela D. FRANKLIN and Charles L. Franklin v. Walter MITCHELL d/b/a Southern Classic Construction.
• Court: Alabama Court of Civil Appeals

87 So.3d 573

Angela D. FRANKLIN and Charles L. Franklin

v.Walter MITCHELL d/b/a Southern Classic Construction.

2091053.

Court of Civil Appeals of Alabama.

Sept. 2, 2011.

Rehearing Denied Oct. 28, 2011.

Certiorari Denied Jan. 13, 2012

Alabama Supreme Court 1110191.

Clement J. Cartron, Huntsville, for appellants.

Robert V. Wood, Jr., and Nicole L. Schroer of Wilmer & Lee, P.A., Huntsville, for appellee.

PITTMAN, Judge.

Angela D. Franklin and Charles L. Franklin appeal from a summary judgment in favor of Walter Mitchell, a sole proprietor doing business as Southern Classic Construction. We affirm.

In June 2001, Mitchell agreed to build a new house for the Franklins for $143,500, according to plans and specifications supplied by the Franklins. Construction was complete, and the Franklins moved into the residence, in October 2001.

In April 2006, the Franklins noticed that the bathroom and kitchen floors in the house were soft and “sagging.” Charles Franklin entered the crawl space under the house to investigate, but he saw no damaged wood and no indication of what was causing the floors to sag. Franklin contacted Mitchell and inquired whether the flooring material could be defective. Mitchell acknowledged that, on an earlier occasion, he had received defective flooring material from the same manufacturer, and he gave Franklin the contact information for the flooring supplier. For the next eight months, Franklin attempted without success to deal with the flooring manufacturer's representative.

In March 2007, the Franklins engaged a civil engineer and licensed home inspector, Dr. William Payne, to perform an inspection of the house. According to Payne's March 7, 2007, home-inspection report, the sagging or softening of the subfloor was not a result of defective wood. Instead, the depressions in the subfloor were caused by a loss of strength in the decking because of the absorption of moisture from condensation on the air-conditioning boots ¹ and the floor decking. An air return located within 18 inches of the bathroom depression area was not properly sealed and was drawing moisture into the area. The depression in the kitchen floor was also the result of the decking's having absorbed moisture. It appeared that air was leaking from the floor vents and the air return, and those leaks provided a constant source of moisture in the crawl space. Mold and mildew were visible on the decking and floor joists.

The Franklins immediately contacted Mitchell about the items enumerated on the home-inspection report. Mitchell told the Franklins that the one-year warranty on his work had expired, but he offered to have Southern Mechanical Heating & Air, Inc. (“SMHA”), the subcontractor that had installed the Franklin's heating, ventilating, and air-conditioning (“HVAC”) system (and whose principal, Jim Mitchell, is his father) look at the Franklins' HVAC system. Walter Mitchell admitted that he later told his father, Jim Mitchell, that “Charles [Franklin] is a good guy; I've known him; let's fix it.”

In late March or early April 2007, Jim Mitchell and Robert Dempsey, an SMHA subcontractor, replaced the subfloor near the Franklins' bathroom and braced the subfloor in front of the refrigerator. SMHA later undertook further repairs when an SMHA crew went into the Franklins' crawl space to tape all the ducts, seal the air return, and insulate the boots. After they left, Charles Franklin inspected the crawl space to determine what repairs had been made. He was dissatisfied with the work that had been done. Specifically, he saw that not all the ducts had been taped and that there was no insulation on the boots. He also saw tape over mold and mildew. Franklin contacted Walter Mitchell and asked him to look at what he considered was faulty work that needed to be fixed. Walter Mitchell came to the premises, inspected the work that had been done under the Franklins' house, and told Franklin that he was not obligated to do anything because the one-year warranty on his work had expired. He also stated that any repairs that had been attempted were gratuitous and had been undertaken only because he and Franklin were friends. Franklin later asked Jim Mitchell whether SMHA would be willing to turn the Franklins' complaints over to its insurance company; Jim Mitchell indicated that SMHA would not report the complaints to its insurer. He also informed Franklin that the repairs were unnecessary, that the HVAC work was initially done correctly, and that he had undertaken the repairs only because his son Walter had asked him to do so.

Charles Franklin subsequently contacted an attorney to discuss filing a claim against Jim Mitchell and SMHA based on the alleged faulty repair work. According to Franklin, the attorney told him it would be necessary to get an expert opinion on the repair work and to pay the attorney a $5,000 retainer. Franklin stated that he could not afford to pay the attorney; instead, he began saving his money to get another home inspection by Payne.

On March 18, 2008, Payne submitted a second home-inspection report. The report concluded that the attempted repairs had not remedied the moisture problem. In addition, Payne found two additional construction defects: the brick veneer on the house had been improperly installed without flashing between the sheathing and the weep holes, and the piers under the brick hearth had been improperly constructed and installed. On April 21, 2008, Mid–South Testing and Engineering Company conducted an indoor air-quality assessment at the Franklins' request. The assessment confirmed the presence of mold and mildew in the dwelling. The report noted that unless proper repairs were made to the HVAC ductwork in the crawl space, the interior of the house would be heavily affected by mold.

On February 11, 2009, the Franklins sued Walter Mitchell d/b/a Southern Classic Construction, asserting claims of negligent construction, subsequent negligent repairs, and breach of contract. Mitchell denied the allegations of the complaint and asserted several affirmative defenses, including the statute of limitations. Mitchell also filed a third-party complaint against three of the subcontractors on the Franklin construction project—SMHA, DH Masonry, and Frakes Insulation—asserting that if he was liable to the Franklins, then those subcontractors were liable to him.

Walter Mitchell moved for a summary judgment on the Franklins' claims, contending that the Franklins' negligence claim accrued, and the two-year statutory limitations period set out in § 6–2–38( l ), Ala.Code 1975, began to run, in April 2006, when the Franklins first became aware of sagging floors in their bathroom and kitchen. Mitchell maintained that the Franklins' negligence claim was, therefore, barred by the time the Franklins filed suit on February 11, 2009. On the claim of subsequent negligent repairs, Mitchell denied that he had performed, supervised, paid for, or provided any materials for the repairs that had been made on the Franklins' property. Mitchell stated that he had not been present when the repairs were made. Mitchell asserted that SMHA and Dempsey were independent contractors over whom he had exercised no control or supervision. On the breach-of-contract claim, Mitchell argued that the Franklins' claim had accrued in October 2001, when he completed his performance under the contract to build the Franklins' house, and, thus, that the claim was barred by the six-year statute of limitations set out in Ala.Code 1975, § 6–2–34(9), when the Franklins filed suit on February 11, 2009.

The Franklins amended their complaint to add a claim of fraudulent concealment, asserting that, as a consequence of Walter Mitchell's allegedly misleading statements that his warranty had expired, that he was not obligated to perform any repairs, and that the repairs that had been performed were gratuitous, the Franklins were under the false impression that they did not have a legal claim against Mitchell. The Franklins asserted that they thought their only recourse was to rely upon repairs that had been made by SMHA because they could not legally force Mitchell to remedy any construction defects. Accordingly, the Franklins alleged, they delayed legal action against Mitchell while they determined whether the repairs would cure the moisture problems in the crawl space.

The Franklins opposed Mitchell's summary-judgment motion and filed their own motion for a summary judgment. Following a hearing on the motions, the trial court entered a summary judgment in favor of Walter Mitchell d/b/a/ Southern Classic Construction. The Franklins timely appealed to the Supreme Court of Alabama, which transferred the appeal to this court pursuant to § 12–2–7(6). ²

Standard of Review

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant's prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see§ 12–21–12(d), Ala.Code 1975.

Discussion

The Franklins raise three issues on appeal. First, they argue that their negligence claim was not barred by the statute of limitations because, they...