Gunther v. Carpet Sys. of Huntsville, Inc.

• Decision Date: 04 October 2013
• Docket Number: 2120511.
• Citation: 142 So.3d 668
• Parties: James B. GUNTHER, Jr., and Jane Lee Gunther v. CARPET SYSTEMS OF HUNTSVILLE, INC.
• Court: Alabama Court of Civil Appeals

142 So.3d 668

James B. GUNTHER, Jr., and Jane Lee Gunther

v.CARPET SYSTEMS OF HUNTSVILLE, INC.

2120511.

Court of Civil Appeals of Alabama.

Oct. 4, 2013.

James B. Gunther, Jr., of Gunther Law Firm, LLC, Huntsville, for appellant.

Joan–Marie Dean, Huntsville, for appellee.

THOMPSON, Presiding Judge.

On May 4, 2009, Carpet Systems of Huntsville, Inc. (“Carpet Systems”), filed in the Madison Circuit Court (“the trial court”) a complaint seeking to recover $40,650 plus interest, costs, and an attorney fee from James B. Gunther, Jr., Jane Lee Gunther (hereinafter referred to collectively as “the Gunthers”), and Antioch Homes, LLC (“Antioch”). The complaint alleges that Carpet Systems was employed as a subcontractor of Antioch in Antioch's construction of a house for the Gunthers. The Gunthers answered and denied liability.

On December 14, 2012, the Gunthers moved for a summary judgment on Carpet Systems' claims against them. The trial court scheduled a hearing on that summary-judgment motion for February 1, 2013. On January 25, 2013, Carpet Systems filed an opposition to the Gunthers' summary-judgment motion, and it filed its own motion for a summary judgment against the Gunthers and Antioch. The Gunthers opposed Carpet Systems' motion for a summary judgment. Antioch did not respond or attempt to defend this action, and it is not a party on appeal.

On February 19, 2013, the trial court entered a summary judgment in favor of Carpet Systems against all three defendants. In its summary judgment, the trial court awarded Carpet Systems $40,650 plus costs. The Gunthers timely appealed.

The standard by which this court reviews a summary judgment is well settled:

“ ‘ “To grant ... a [summary-judgment] motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797–98 (Ala.1989); § 12–21–12(d)[,] Ala.Code 1975. 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 Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

“ ‘ “In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).” ’

“Payton v. Monsanto Co., 801 So.2d 829, 832–33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).”

Maciasz v. Fireman's Fund Ins. Co., 988 So.2d 991, 994–95 (Ala.2008).

The dispute in this action pertains to whether Carpet Systems properly complied with § 35–11–210, Ala.Code 1975, in asserting its claim for a “full price” materialman's lien against the Gunthers.¹ Section 35–22–210 provides, in pertinent part:

“[I]f [the materialman] shall notify the owner or his or her agent in writing that certain specified material will be furnished by him or her to the contractor or subcontractor for use in the building or improvements on the land of the owner or proprietor at certain specified prices, unless the owner or proprietor or his or her agent objects thereto, the furnisher of the material shall have a lien for the full price thereof as specified in the notice to the owner or proprietor without regard to whether or not the amount of the claim for the material so furnished exceeds the unpaid balance due the contractor, unless on the notice herein provided for being given, the owner or proprietor or his or her agent shall notify the furnisher in writing before the material is used, that he or she will not be responsible for the price thereof.”

Our supreme court has explained that

“[t]o establish the right to a full-price lien, the supplier must either (1) have an express contract with the property's owner or the owner's agent to supply the materials or labor, or (2) have given notice to the owner in writing of the cost of the materials or labor to be supplied before beginning work or delivering materials and the owner must not have responded in writing that the owner will not be liable for payment.”

Saunders v. Lawson, 982 So.2d 1091, 1093 (Ala.Civ.App.2006). In this case, Carpet Systems did not have an express contract for the materials and labor for which it asserts a claim for a lien. Therefore, CarpetSystems has proceeded to assert its claim under the second option described in Saunders v. Lawson, i.e., a notification to the property owners of its intent to reserve its right to claim a lien.

The purpose of § 35–11–210 is to secure the materialman's claim for payment for materials and labor it provides and to offer protection to the homeowner by requiring timely notice of the materialman's claim to a lien:

“The purpose of the statute creating a materialman's lien is to protect one who supplies labor or materials for any building or improvement on land when he does so at the request of the contractor rather than at the request of the landowner. Abell–Howe Co. v. Industrial Dev. Bd., 392 So.2d 221, 224 (Ala.Civ.App.1980). The statute allows a supplier to establish a lien in order to guarantee payment. Id. However, the notice provision of the materialman's lien statutes was included for the protection of the owner. Id. (citing Covington Co. Bank v. R.J. Allen & Assoc., 462 F.Supp. 413 (M.D.Ala.1977)).

“ ‘[The notice provision was] designed to inform the owner that the claimant intends to place an encumbrance on the owner's land; the owner then has an opportunity to effect a settlement between himself, the contractor and the supplier prior to any encumbrancing. Harper v. J & C Trucking & Excavating Co., 374 So.2d 886 (Ala.Civ.App.1978), writ quashed,374 So.2d 893 (Ala.1979).’

“392 So.2d at 224.”

Davis v. Gobble–Fite Lumber Co., 592 So.2d 202, 205 (Ala.1991).

Our courts have held, however, that strict compliance with § 35–11–210 is required in order to protect the materialman's claim. In Davis v. Gobble–Fite Lumber Co., supra, the materialman provided the owner notice of its intent to assert a full-price lien on the day following the delivery of the materials to be provided to the construction site. The trial court entered a summary judgment awarding the materialman a lien. Our supreme court reversed, concluding that because the notice was provided to the homeowners after the materials at issue had been delivered, the materialman had failed to comply with the requirements of § 35–11–210. The court explained:

“The text of § 35–11–210 clearly states that in order to procure a full-price lien, the materialman must give notice of intent to claim a lien to the owner before any material is furnished. The materialman's lien statute is in derogation of the common law. Therefore, enforcement of a lien depends upon strict compliance with the statute's substantive requirements.”

Davis v. Gobble–Fite Lumber Co., 592 So.2d at 206. See also Saunders v. Lawson, 982 So.2d at 1094 (holding that the materialman failed to provide notice, in writing, of an intent to claim a lien before furnishing supplies and labor, and, therefore, the materialman was not entitled to a full-price lien under § 35–11–210).

The parties do not dispute that the foregoing is the law applicable to their dispute. Rather, they dispute whether Carpet Systems was entitled to a summary judgment on its claim for a full-price lien pursuant to § 35–11–210 and whether, in the alternative, the trial court should have entered a summary judgment in favor of the Gunthers. With regard to those issues, Carpet Systems and the Gunthers presented the following evidence in support of their respective positions.

The Gunthers contracted with Antioch to construct a house and Antioch referred the Gunthers to Carpet Systems, a subcontractor,for the flooring for the house. It is undisputed that the Gunthers paid Antioch the entire amount due under their construction contract with Antioch, which included the amounts Antioch was supposed to pay to the subcontractors for their work. Antioch did not pay Carpet Systems for its materials and labor.² The Gunthers obtained a certificate of occupancy for the completion of the house on November 25, 2009.

In support of its motion for a summary judgment and in its submissions opposing the summary-judgment motion filed by the Gunthers, Carpet Systems presented documentary evidence and affidavits. Carpet Systems submitted to the trial court, among other things, the affidavit of Chris Beyl, a salesman for Carpet Systems. The Gunthers argue, as they did before the trial court, that Beyl's affidavit was not proper under Rule 56(e), Ala. R. Civ. P., because, they maintain, it is not based on Beyl's personal knowledge. Although Beyl did not specifically state that the facts in the affidavit are based upon his personal knowledge, in his affidavit Beyl states that he took certain actions and was present when other people took certain actions. Accordingly, we conclude that much of Beyl's affidavit was based on his personal knowledge and complies with the requirements of Rule 56(e).³

Also, with one exception, we reject the Gunthers' arguments that the documents submitted in support of Beyl's affidavit were not properly authenticated. This court has explained:

“With respect to the requirement in Rule 56(e) that ‘[s]worn ... copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith,’ our supreme court has stated:

“ ‘ “... This means that if...