Rector v. Better Houses, Inc.
| Citation | 820 So.2d 75 |
| Parties | Bert S. RECTOR v. BETTER HOUSES, INC. |
| Decision Date | 22 June 2001 |
| Court | Alabama Supreme Court |
Desmond V. Tobias of Windom & Tobias, L.L.C., Mobile, for appellant.
Jeffrey L. Luther and Kathryn M. Cigelske of Luther, Oldenburg & Rainey, P.C., Mobile, for appellee.
The plaintiff Bert S. Rector appeals from a summary judgment entered in favor of the defendant Better Houses, Inc., on a claim alleging that the defendant had negligently constructed her house above a storm drain. The appeal presents two issues: (1) Did the trial court abuse its discretion in striking Rector's amended complaint, which was filed within 30 days of the original trial date and which attempted to state new claims? and (2) was the summary judgment on the negligence claim appropriate? We hold that, while the trial court did not abuse its discretion in striking the amended complaint, the summary judgment was improper. Consequently, we reverse and remand.
On September 29, 1978, Bert Rector purchased a newly constructed home on a lot located at 1107 Peabody Drive in Mobile. Before she purchased it, Coastal Land Development Company, Inc., and its successors, including the City of Mobile ("the City") and the Board of Water and Sewer Commissioners of the City of Mobile ("the Sewer Board"), had acquired a 30-foot drainage and utility easement running through what is now Rector's backyard and through a portion of the land where her house sits. This easement, pursuant to which a storm drain had been built, was clearly depicted in a survey conducted on September 5, 1978-24 days before Rector purchased the property—and that easement was documented in the recorded warranty deed.
In December 1997, a storm drain that ran beneath Rector's property collapsed; the collapse caused a sinkhole approximately three to four feet wide and three to four feet deep. The sinkhole worsened in September 1998 after Hurricane Georges dumped several inches of rain on the Mobile area in a short time; Rector's entire yard was washed away. Rector claims that the sinkhole caused a rupture in the sewer system and that the rupture caused raw sewage to spill onto her property. Although the City repaired the drain in February 1999, Rector alleges that sinkholes remain in her yard.
On April 30, 1999, Rector sued several defendants,1 including Better Houses; she alleged that that defendant was negligent for failing to use reasonable care while preparing her lot and designing and constructing her house. Better Houses answered the complaint, but it did not plead a defense based on the 20-year rule of repose or prescription.2
On December 13, 1999, Rector filed an amended complaint stating additional claims against Better Houses, including fraud and suppression. Better Houses moved to strike the additional claims, citing Rule 15(a), Ala. R. Civ. P. The trial court subsequently struck Rector's amended complaint.
Better Houses then moved for a summary judgment on Rector's negligence claim. Better Houses argued that Rector's claim was barred by the rule of repose and that Better Houses was therefore entitled to a judgment as a matter of law. The record indicates that Rector did not object to Better Houses' assertion of this defense, even though it had not been pleaded as an affirmative defense pursuant to Rule 8(c), Ala. R. Civ. P. The trial court entered a summary judgment in favor of Better Houses, based on two grounds: (1) the rule of repose and (2) its conclusion that Rector had not presented substantial evidence as to each element of her negligence claim. Rector appealed.
Rector filed her amended complaint on December 13, 1999, more than 7 months after she had filed her original complaint and within 30 days of the original January 2000 trial date. The trial court concluded that Rector's new allegations of fraud and suppression "[were] based upon information that was known or should have been known to [Rector] at the time she filed the original complaint." The court then cited "undue delay" as its reason for striking the amended complaint.
We conclude that in striking Rector's amended complaint the trial court did not abuse its discretion. Rule 15(a), Ala. R. Civ. P., governs amendments to pleadings. It provides, in pertinent part:
(Emphasis added.) In Boros v. Baxley, 621 So.2d 240 (Ala.1993), we explained:
"Although Rule 15(a) itself calls for liberal amendment, this Court has held consistently that `the grant or denial of leave to amend is a matter that is within the discretion of the trial court and is subject to reversal on appeal only for an abuse of discretion.'"
621 So.2d at 245 (citations omitted). Thus, "Rule 15, [Ala. R. Civ. P.], is not carte blanche authority to amend a complaint at any time." Stallings v. Angelica Uniform Co., 388 So.2d 942, 947 (Ala.1980) (quoting Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975)). "[U]ndue delay in filing an amendment, when it could have been filed earlier based on the information available or discoverable, is in itself ground for denying an amendment." Puckett, Taul & Underwood, Inc. v. Schreiber Corp., 551 So.2d 979, 984 (Ala.1989). "[I]f the court determines ... that a party has had sufficient opportunity to state a claim ... but has failed to do so, leave to amend may properly be denied." Walker v. Traughber, 351 So.2d 917, 922 (Ala.Civ.App.1977).
Rector's only argument on this issue is that the trial court abused its discretion because, she says, amendments to pleadings should be liberally allowed. She offers no information refuting the trial court's conclusion that the new allegations were based on facts she had known since the date she had commenced the action. Based on the record before us, we cannot conclude that the trial court abused its discretion by striking Rector's amended complaint.
Rector contends (1) that the rule of repose —part of the basis for the summary judgment—is inapplicable to this case and (2) that Better Houses did not carry its initial burden in moving for a summary judgment.
Better Houses principally argued in its summary-judgment motion that Rector's negligence claim was barred by Alabama's common-law rule of repose, which is an affirmative defense, see Harkins & Co. v. Lewis, 535 So.2d 104, 117 (Ala.1988)
(). Although Better Houses failed to plead the rule of repose as an affirmative defense, Rector did not object to Better Houses' argument regarding the rule of repose and, in fact, addressed the defense substantively. The trial court subsequently held that the rule of repose operated to bar Rector's negligence claim.
In Wallace v. Alabama Association of Classified School Employees, 463 So.2d 135 (Ala.1984), this Court stated the following with respect to unpleaded affirmative defenses:
463 So.2d at 136. Better Houses argues that its rule-of-repose defense was a proper ground for a summary judgment because Rector did not present a procedural argument against its use of that defense; Better Houses contends that Rector's failure to present such a procedural argument worked as a waiver of an objection to Better Houses' use of the defense. Better Houses' basis for this argument is its assertion that, because the rule-of-repose question was presented in its summary-judgment motion, without objection by Rector, the pleadings were deemed to have been amended to conform to the evidence presented during a hearing, pursuant to Rule 15(b), Ala. R. Civ. P.
We disagree. Rule 15(b), Ala. R. Civ. P., states, in pertinent part:
(Emphasis added.) The summary-judgment context is different from the situation where an unpleaded defense has been tried on the merits without objection, because, at the summary-judgment stage of litigation, there has been no trial before a factfinder. A summary-judgment motion simply tests the merits of a case. See Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated, § 56.2 (3d ed.1996). If a court finds those merits lacking, then it properly adjudicates it. While such an adjudication under this scenario is an adjudication on the merits, the adjudication is not the product of a trial on the merits. Thus, where there is no trial, Rule 15(b) cannot apply. See Blue Cross & Blue Shield of Alabama v. Weitz, 913 F.2d 1544, 1549 (11th Cir.1990)
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