Matthews Bros. Const. Co., Inc. v. Lopez
| Decision Date | 08 April 1983 |
| Citation | 434 So.2d 1369 |
| Parties | MATTHEWS BROTHERS CONSTRUCTION COMPANY, INC. v. Frank LOPEZ. Frank LOPEZ v. MATTHEWS BROTHERS CONSTRUCTION COMPANY, INC. 81-537, 81-537A. |
| Court | Alabama Supreme Court |
Norborne C. Stone, Jr. of Stone, Partin, Granade & Crosby, Bay Minette, for appellant/cross-appellee.
J. Don Foster and Thack H. Dyson of Foster, Brackin & Bolton, Foley, for appellee/cross-appellant.
This appeal and the cross-appeal arise out of a controversy between parties to an oral contract. The following issues are raised: (1) Whether the trial court improperly denied appellant's motion for summary judgment; (2) Whether the trial court improperly limited re-cross examination of a witness; (3) Whether the trial court allowed the appellee's counsel to ask leading questions of the appellee which invaded the province of the jury; (4) Whether the trial court committed reversible error when it allowed appellee to testify about his expenses and profits; (5) Whether the trial court erred in refusing to give a properly submitted jury instruction; (6) Whether the denial of a new trial constituted reversible error; and (7) On the cross-appeal, whether the trial court improperly granted a directed verdict for the appellant regarding the charges of fraud.
In September of 1979 Hurricane Frederic devastated the area of Baldwin County from Gulf Shores westward. Debris literally covered this area known as the Fort Morgan Peninsula. Some of the debris was in the right-of-way of the Fort Morgan Road (Dixie Graves Parkway) and some, of course, was on private properties abutting that right-of-way.
The government charged the U.S. Corps of Engineers ("the Corps") with the responsibility of clearing the debris from the right-of-way and from private properties where a right of entry ("ROE") was granted within fifty feet of any drives and improvements on the private property.
The Corps first contracted with one Joe Ramona to do this work, which consisted of the actual removal and transporting of the debris to a dumping site just north of Gulf Shores. Under this first contract the contractor began working from the city limits of Gulf Shores (nearest the dumping site) and worked westward. After a short period of time the Corps terminated that contract with Ramona.
The Corps then advertised for bids on a new contract to do the same work and awarded the contract to the successful bidder, appellant, Matthews Brothers Construction Company of Wetumpka, Alabama. Matthews Brothers entered into a contract with the Corps to do the specified work at a fixed rate per cubic yard of debris. This contract obligated the contractor to begin at the west end of the Fort Morgan Road and work east toward the dumping site.
The appellee, Frank Lopez, came to Baldwin County about two weeks after the hurricane in response to a call from one Charles Pope from Gulf Shores and brought with him three trucks. He worked for Pope about three weeks and then started working for Joe Ramona. Lopez remained with Ramona for about three months. Just before Christmas 1979, Lopez left his trucks in Gulf Shores and went back home to Kingsville, Texas. He learned from Joe Ramona that the Corps had awarded the appellant the new contract. Lopez then contacted Matthews Brothers sometime between Christmas and New Year's Day. He told Jim Matthews, president of Matthews Brothers, of his plan to return to Gulf Shores. Lopez asked Matthews if he needed any trucks and he answered yes. The parties arranged to meet in Gulf Shores.
Lopez met Matthews on January 4, 1980, in Gulf Shores and viewed the job site. Matthews hired Lopez to haul debris at the rate of $2.75 per cubic yard. The parties agree they made an oral contract. The parties disagree whether Lopez contracted to continue to haul debris until Matthews Brothers had cleared the entire Fort Morgan Road or if a contract at will existed. Neither party disputes the fact, however, that Matthews Brothers terminated Lopez's employment before the contractor cleared the entire Fort Morgan Road. Further, both parties agree that before Matthews fired Lopez, other trucks, besides Lopez's, were also hauling debris.
Lopez sued Matthews Brothers and Jim Matthews for breach of contract. The jury found for Lopez and awarded him $25,000 in damages. Matthews Brothers appealed the judgment based on that verdict and raises the following issues.
Matthews Brothers argues that the trial court improperly denied its motion for summary judgment. The original complaint, filed on August 6, 1980, alleged that Matthews Brothers awarded Lopez the "entire contract" to remove debris along the Fort Morgan Road.
On August 21, 1981, Matthews Brothers deposed Frank Lopez. In that deposition, Lopez made statements which Matthews Brothers contends were contrary to the averments in his complaint. Lopez no longer maintained that Matthews Brothers awarded him the "entire contract" to remove debris along the Fort Morgan Road. Counsel for the appellant asked Lopez during his deposition, "Is it your contention, are you claiming that you were the only person that could haul under the Matthews' contract from Fort Morgan on east?" Lopez answered, "No, sir."
Ten days later, August 31, 1981, Matthews Brothers filed a motion for summary judgment based on the discrepancies between the original complaint and Lopez's deposition. Lopez then filed a motion in opposition to the summary judgment motion on September 3, 1981. The trial court continued the motion for summary judgment on October 14, 1981, and gave Lopez twenty days to amend the complaint. On November 4, 1981, Lopez amended the complaint to allege that Matthews Brothers gave him "a job" to remove debris, instead of the "entire contract" to remove debris. Matthews Brothers moved to dismiss the amended complaint and subsequently filed a second motion for summary judgment. The trial court denied both of these motions.
Matthews Brothers argues that the trial court improperly continued the first motion for summary judgment. The appellant asserts that because Lopez failed to file any evidence in opposition to the first summary judgment motion, the trial court had no alternative but to grant the motion.
ARCP 56 grants parties in Alabama the power to move for summary judgment. The rule "provides an expeditious disposition of cases and avoid[s] unnecessary trials when no genuine issues of fact have been raised." Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976). Nonetheless, a court cannot grant a motion for summary judgment if a scintilla of evidence exists supporting the nonmoving party's position. Id.; Parker v. King, 402 So.2d 877 (Ala.1981). Even if Matthews Brothers' assertion that before Lopez amended the original complaint no genuine issue as to any material fact existed is correct, no grounds for reversal exists. We hold that the amended complaint set forth a genuine issue of material fact that remained unresolved: Whether Matthews Brothers could terminate the contract with Lopez at will or whether Lopez contracted to remove debris until Matthews Brothers cleared the entire Fort Morgan Road.
The law does not require a trial judge to rule upon a motion for summary judgment when it is presented. The Comments to Rule 56, ARCP, address this issue squarely:
Furthermore, the law is that courts are to liberally allow amendments to pleadings. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So.2d 1276 (Ala.1976); Huskey v. W.B. Goodwyn Co., Inc., 295 Ala. 1, 321 So.2d 645 (1975). It is only when a party shows that the trial court abused its discretion in allowing the amendment that this Court will reverse a trial court's decision. Walker v. Traughber, 351 So.2d 917 (Ala.Civ.App.1977).
We hold that when a party moves for summary judgment and there is reason to believe the nonmoving party has evidence to defeat issuance of summary judgment, a court may, in its discretion, order a continuance. ARCP 56. In this case, the court ordered the original summary judgment motion continued, and allowed Lopez to amend his complaint. We find no abuse of the discretion vested in the trial court. Neither do we find that the trial court erred in denying Matthews Brothers' second motion for summary judgment.
Matthews Brothers asserts that the trial court committed reversible error when it limited questions during re-cross examination of one Hector Hernandez, a witness for Lopez. After a full direct examination and subsequent cross examination of Hernandez, the following occurred:
To continue reading
Request your trial
-
Moore v. Mobile Infirmary Ass'n
...duty of the jury to try the facts and apply the law to those facts. Clark v. Container Corp. of America, supra; Mathews Bros. Const. Co. v. Lopez, 434 So.2d 1369, 1375 (Ala.1983); Plenkers v. Chappelle, 420 So.2d 41, 44 (Ala.1982); McArdle v. State, 408 So.2d 491, 493 (Ala.1981); Nichols v.......
-
Stauffer Chemical Co. v. Buckalew
...A strong presumption favors a jury's verdict, especially when the trial court refuses to grant a new trial. Matthews Brothers Construction Co. v. Lopez, 434 So.2d 1369 (Ala.1983). Consequently, the granting or refusing of a motion for new trial is within the sound discretion of the trial co......
-
American Furniture Galleries, Inc. v. McWane, Inc.
...A strong presumption favors the jury's verdict and the trial court's refusal to grant a new trial. Matthews Brothers Construction Co. v. Lopez, 434 So.2d 1369, 1375 (Ala.1983). Defendant McWane argues further that even if the submission of the contributory negligence defense to the jury was......
-
Eady v. Dixie Dozer & Equipment Co., Inc.
...review an issue upon appeal in the absence of an objection and an adverse ruling of the trial court thereon. Matthews Brothers Construction Co. v. Lopez, 434 So.2d 1369 (Ala.1983); Mitchell v. State, 450 So.2d 140 (Ala.Civ.App.1984). In short, only adverse rulings of the trial court will be......