Leftwich v. Brewster

• Citation: 306 So.3d 26
• Decision Date: 03 April 2020
• Docket Number: 1180796
• Parties: Jimmy LEFTWICH, Jr. v. Steven V. BREWSTER
• Court: Supreme Court of Alabama

306 So.3d 26

Jimmy LEFTWICH, Jr.

v.Steven V. BREWSTER

1180796

Supreme Court of Alabama.

April 3, 2020

John T. Robertson IV and Ralph K. Strawn, Jr., of Strawn & Robertson, L.L.C., Gadsden, for appellant.

William A. Mudd of Mudd, Bolvig, Luke & Wells, L.L.C., Birmingham, for appellee.

MENDHEIM, Justice.

Jimmy Leftwich, Jr., appeals from the Etowah Circuit Court's denial of a motion for a new trial in his negligence action against Steven V. Brewster. Leftwich alleged that Brewster breached a duty to competently inspect a house that Leftwich purchased. The jury returned a verdict in favor of Brewster. On appeal, Leftwich contends that the trial court erred in failing to disqualify two jurors for cause and that the trial court erroneously excluded vital evidence that provided estimated costs to repair the home. We affirm the judgment of the trial court.

I. Facts

In 2014, Leftwich and his wife began looking for a new house. They became interested in a property located on Washington Circle in Gadsden, Alabama ("the home"). The home was built in 1945, and Leftwich testified that, because of its age, he was concerned about the structural integrity of the home. Consequently, Leftwich hired Brewster, a licensed home inspector, to inspect the home before Leftwich made an offer on it.

On June 19, 2014, Brewster spent approximately three hours inspecting the home. He then drafted a written home-inspection report ("HIR") the same day that included several pictures of the property. Leftwich paid Brewster that same day. Brewster sent Leftwich the HIR the next day. The HIR stated that it was not intended to reflect the value of the premises or to make any representation as to the advisability of purchasing the home and that it expressed Brewster's personal opinions as the inspector based upon visual impressions of the conditions that existed at the time of the inspection. The HIR did not identify any major defects with the home, though it did note that there was one improperly spliced rafter in the attic. Leftwich testified that he read the HIR and that he felt he was getting one of the best inspections a person could obtain.

Thereafter, Leftwich received in the mail a home-inspection agreement ("HIA") from Brewster that was dated June 30, 2014. Leftwich testified that he did not sign and return the HIA because he had already paid Brewster and he had received the HIR. Brewster testified that he received the HIA in the mail and that it contained Leftwich's signature. Brewster's copy of the HIA was received into evidence, but Leftwich denied that the signature on the document was his.

Both parties agree that the HIA stated that the inspection was "performed in a manner consistent with ASHI [American Society of Home Inspectors] Standards of Practice." Brewster also testified that he followed standards provided by the Alabama Building Commission for home inspections. For his part, Leftwich argued that the 2003 International Residential Code ("IRC") applied to Brewster's home inspection because the HIR mentioned a portion of that building code. However, Brewster noted that the Alabama Building Commission standards did not require home inspectors to inspect for building-code compliance. He also observed that Leftwich's own home-inspection expert, Larry Brooks, testified that the IRC generally did not apply to home inspections.

Leftwich purchased the home for $77,000 on July 25, 2014. He testified that at the time he felt the home was actually worth more than he paid for it. According to Leftwich, within 90 days of moving into the home, the ceiling started to fall, the floors started to bow and sag, and the rafters in the kitchen started pushing down on the cabinets. Leftwich testified at trial that he eventually moved out of the home because he felt it was unsafe and that, in his opinion, because of the defects in the home's roof and its foundation, the home was worth only $5,000, which he stated was the value of the lot on which the home was situated.

On June 14, 2016, Leftwich filed an action in the Etowah Circuit Court against Brewster. Leftwich asserted claims of negligence and wantonness, and he sought compensatory and punitive damages, as well as damages for mental anguish and emotional distress. Leftwich alleged that Brewster had negligently and/or wantonly inspected the home, that Leftwich had purchased the home based on the assurance he gained from the HIR, which found no major defects in the home, that Leftwich discovered major defects with the home after he moved in, and that, if he had known of those defects beforehand, he would not have purchased the home.

The case proceeded to trial. During voir dire of the jury pool on April 1, 2019, two jurors -- Brad and Melissa Battles -- gave responses to questioning from Leftwich's counsel that revealed that they were married to each other. After that revelation, Leftwich's counsel did not direct any specific questions to either juror pertaining to potential bias. Instead, Leftwich's counsel later asked a generic question about bias to all the prospective jurors:

"Does anyone have anything that you feel like would in fairness interfere with your ability to evaluate the evidence in this case and award a verdict for one side or the other based on the as law given to you by the Judge and the evidence that comes to you through the trial of this case?"

None of the prospective jurors responded to this question. At the close of his voir dire questioning, Brewster's counsel also asked to the prospective jurors a generic question pertaining to potential bias:

"Is there some reason that you're thinking about, now, this dummy is not going to ask the question that pertains to me? It's something that you're thinking about or something that you've been through or some reason that might cause you to tilt one way or the other in this case that would prevent you, for some reason, from listening to the evidence and the legal charge that the Judge gives you in reaching a fair and impartial verdict for these parties, just something that, you know, [Brewster's counsel] could never think of this question to ask?"

None of the jurors responded to that question.

At the conclusion of voir dire, the trial court asked the parties if they had any motions to strike jurors for cause. Leftwich's counsel asked that the Battleses be stricken from the jury because they were related by marriage. The following exchange then occurred:

"[Leftwich's counsel]: Your Honor, we've talked just a little bit, and the Battles[es] are related by marriage. I think that would create a problem for them to be on the jury.

"THE COURT: I don't think that's an issue for cause, though --

"[Leftwich's counsel]: I honestly don't know.

"THE COURT: -- under the Code and the statute. [Brewster's counsel], anything on that?

"[Brewster's counsel]: Your Honor, I don't confess to be an expert at that, but it would seem to me that they would -- one of them would have to say I just can't sit on a jury with my spouse. I can't -- I mean, I've never had it before.

"THE COURT: I've never had it before either, but I don't know what --

"[Leftwich's counsel]: I think it would be hard for one of them to vote one way and the other one to vote the other way if they were both on the jury.

"THE COURT: Let me ask y'all this and see if we can nip it in the bud this way without going and looking and checking: Would anyone -- would folks stipulate or not stipulate as to having them removed from the panel? It's okay if you don't. There's no harm in it.

"[Brewster's counsel]: I do not stipulate to the --

"THE COURT: I understand. Okay.

"[Brewster's counsel]: -- mutual, no.

"THE COURT: I'll go ahead and make a ruling because I've never seen that or heard of that being an issue. I think it's like people -- to me, to a certain extent, people that work somewhere together or work closely together somewhere or have known each other for 20 years. How long have you known them? I've known Jack my whole life. We've worked at Goodyear the whole time. I know they'd be in the same home and things of that nature, but if they're given an instruction -- I mean, do y'all know of a case or a rule?

"THE COURT: I've never seen it.

"[Brewster's counsel]: You know, I just --

"THE COURT: Let me go check the statute, but as of now, I'm saying no. It's denied, but I'll let you know if I change my decision. I know, it may affect that, so I'll try to know something as quickly as possible. ...

"....

"THE COURT: Okay. For the record, I have reviewed Section 12-16-150, [Ala. Code 1975,] which is challenges of jurors for cause and grounds generally, and as to all 12 reasons, none of them cites anything about relationship of jurors, all right, and I guess it gives me discretion if I feel, though, based upon some bias or otherwise, but I don't find that that would be the case. There's nothing I see that would raise that issue for cause, at least, but I do understand. And I --

"[Leftwich's counsel]: It's just a situation we've never encountered before.

"THE COURT: It's interesting. I understand the issue because I feel like you've got -- if someone wishes to strike one, you may feel like you need to strike two. Of course, they won't know who struck them.

"[Brewster's counsel]: Well, if you struck one, then the issue doesn't exist anymore.

"THE COURT: Yeah, that's true.

"[Brewster's counsel]: You know?

"THE COURT: That's true. It could be, but if one party thinks that they need to strike the husband, it may very well be that they wish to strike the wife for the same reasons, so it may take you two strikes.

"[Brewster's counsel]: Because she's the wife of the husband?

"THE COURT: Not necessarily. Generally, as we know -- that doesn't always happen in my house either. Okay. So anyway in theory. I'm going to deny the motion, though, based upon the rule. It does not cite that within the rule. Okay.

"[Brewster's counsel]: Thank you. Your Honor.

"[Leftwich's counsel]: Thank you."

Thus, the trial court denied Leftwich's motion to strike for...