McCullough v. McAnalley

• Decision Date: 15 November 1991
• Citation: 590 So.2d 229
• Parties: Leslie Craig McCULLOUGH v. Donald H. McANALLEY, individually and d/b/a McAnalley Real Estate and McAnalley Construction. 1901086.
• Court: Alabama Supreme Court

Page 229

590 So.2d 229

Leslie Craig McCULLOUGH v. Donald H. McANALLEY, individually and d/b/a McAnalley Real Estate and McAnalley Construction.

1901086.

Supreme Court of Alabama.

Nov. 15, 1991.

Robert W. Bunch of Bunch and Associates, Florence, for appellant.

Robert Burdine, Jr. of Burdine, Collier & Burdine, Florence, for appellee.

HORNSBY, Chief Justice.

Leslie Craig McCullough filed a seven-count complaint in the Circuit Court of Colbert County against Danny Ray Inman, Donald H. McAnalley, the City of Tuscumbia, and various fictitiously named parties. McCullough sought damages from the defendants on claims based on wantonness, negligence, trespass, private nuisance, breach of contract, and misrepresentation, all concerning a drainage system and storm sewer located on the plaintiff's property.

On October 22, 1990, the trial court entered summary judgments for the defendants on all counts; McCullough appealed the judgment in favor of defendant McAnalley on the claims of breach of contract and misrepresentation. We affirm in part and reverse in part.

FACTS

On or about December 21, 1988, McCullough entered into a contract to purchase a house from Inman. According to McCullough "A. ... I'm not interested in buying the house. And she said, 'Come down to our office. Don and I want to talk to you.' And I said, 'Okay.' And so we went down there and Don McAnalley said, 'I'll warranty the house for Danny Inman. He can give me $3,000, and I'll warrant the house against any water damage.' He said, 'Craig, I've been out there and looked at your property.' He said, 'I've built numerous houses, and I've built houses in a lot worse places than that and there never has--you just don't have a problem. Take my word for it, you don't have a problem.' He said, 'I would've done it for $1,000.' ... He said, 'I guarantee you, Craig, you don't have a problem.' "

he began negotiations with Inman (the owner of the property) and McAnalley (the real estate agent) sometime prior to December 21, 1988. During the negotiation period, McCullough inspected the house on four occasions. In his deposition, McCullough conceded that he had had knowledge of a water problem prior to the purchase, but he contends that he did not know the full extent of the problem until months after he had moved into the house. McCullough further indicated that the water problem had caused him and his wife to consider not purchasing the property. He avers that it was only when McAnalley, the real estate agent representing Inman in the sale of the house, assured them that they would not have a water problem, that he decided to enter into the contract with Inman for the purchase of the house. In his deposition, McCullough testified as follows:

On December 21, 1988, the date McCullough contracted to buy Inman's house, McCullough also entered into a separate contract with McAnalley. In that contract, McAnalley agreed as follows:

"I agree to do the necessary yard level alterations, down spout alterations, block treatments, and drainage procedures to insure that water shall not seep or run into the crawlspace under subject property. In the event of water seepage or running under or into the crawl space, any damage to the flooring system, sub-flooring or floor covering shall be corrected by Don McAnalley."

However, that contract also purported to relieve McAnalley from any repair concerning the following:

"Footing and block settling or cracking due to any cause and any or all damages that may result. The obstruction of the city drain system that subject property drains into, or the inability of the drain system to accommodate the volume of water flowing into the system that could [a]ffect this property."

McCullough took possession of the house shortly after the contract was executed. Soon after McCullough moved in, serious flooding occurred in the house. McCullough reported the problem to McAnalley, and McAnalley made several unsuccessful attempts to cure the water problem. McCullough sued McAnalley, alleging that he had breached the contract and that he had recklessly, intentionally, or mistakenly misrepresented the extent of the water problem and his ability to cure it. McAnalley moved for a summary judgment on the grounds that the water problem was caused by the City of Tuscumbia's drainage system and, that, therefore, he had not breached the contract, and that he had not misrepresented any fact to McCullough concerning correction of the water problem. McAnalley submitted the affidavit of Don Price, an engineer with Paxton, Price & Rider Engineering, Inc., in support of his motion. McCullough countered the motion for summary judgment with the depositions of Anna McCullough, Regina Coates, Donald McAnalley, and Danny Inman. The trial court entered a summary judgment for McAnalley.

There are only two issues before this court: (1) whether the trial court erred when it entered a summary judgment on the breach of contract claim, and (2) whether the trial court erred when it entered a summary judgment on the misrepresentation claim.

Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering summary judgment. The rule requires the trial court to determine (1) that there is no genuine issue " 'The burden is on one moving for summary judgment to demonstrate that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact. Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110 (Ala.1977); Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortg. Co., 390 So.2d 601 (Ala.1980); Fulton v. Advertiser Co., 388 So.2d 533 (Ala.1980).' "

of material fact, and (2) that the moving party is entitled to a judgment as a matter of law. The burdens placed on the moving party by this rule have often been discussed by this Court:

Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989) (quoting Schoen v. Gulledge, 481 So.2d 1094 (Ala.1985)).

The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Because this action was not pending on June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovant meet his burden by "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence test, the nonmovant must present "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). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).

Our review of the record leads us to conclude that the trial court did not err in entering the summary judgment with regard to the breach of contract claim. The trial court, however, did err in entering the summary judgment with regard to the misrepresentation claim.

BREACH OF CONTRACT

In opposition to the summary judgment motion as to the breach of contract claim, McCullough first argues that there remains a genuine issue of fact as to the cause of the water problem. McAnalley's affidavit and deposition; the deposition testimony of McCullough and his wife, Anna; and Don Price's affidavit make a prima facie showing that the water problem resulted from the inadequate city drainage system. Mr. Price stated in his affidavit that he was familiar with the property owned by McCullough and that he had "inspected said property ... as an engineer and ... investigated the drainage at ... the residence occupied by the McCulloughs." He also stated:

"There exists in this vicinity a 36"' diameter storm drain.... And ... a 78"' circular concrete storm drain, or equivalent, would be required to handle this flow. It is my opinion that any water problem suffered by the McCulloughs on said property is due to the inability of the drainage system to accommodate the volume of water flowing into the system."

(Emphasis added.)

McCullough argues that Don Price's affidavit is inadmissible because some of the statements contained therein are inadmissible. The evidence given in an affidavit submitted in support of, or in opposition to, a summary judgment motion must be admissible at trial. Welch v. Houston County Hosp. Bd., 502 So.2d 340 (Ala.1987). The party alleging inadmissibility must make the trial court aware of the "The issue of admissibility of the evidence in opposition to the motion for summary judgment was raised by [the defendant] for the first time on appeal. In response to his contention on this issue, we adopt the following language from C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2738 (1983):

inadmissibility. In Perry v. Mobile County, 533 So.2d 602, 604-05 (Ala.1988), this Court held:

" 'A party must move to strike an affidavit that violates Rule 56(e); if he fails to do so, he will waive his objection and, in the absence of a "gross miscarriage of justice," the court may consider the defective affidavit. This principle applies to affidavits containing evidence that would not be admissible at trial as well as to affidavits that are defective in form. This motion to...