Sherrod v. Webber (Ex parte Webber)

• Decision Date: 27 June 2014
• Docket Number: 1121443.
• Citation: 157 So.3d 887
• Parties: Ex parte Larry WEBBER. (In re Donald Sherrod et al. v. Larry Webber).
• Court: Alabama Supreme Court

157 So.3d 887

Ex parte Larry WEBBER.(In re Donald Sherrod et al.

v.Larry Webber).

1121443.

Supreme Court of Alabama.

June 27, 2014.

Kori L. Clement of Hare & Clement, P.C., Hoover, for petitioner.

William J. Donald III of Donald, Randall & Donald, Tuscaloosa; and Albert G. Lewis III of Lewis, Smyth, Winter & Ford, Tuscaloosa, for respondents.

Opinion

MURDOCK, Justice.

Larry Webber petitions this Court for a writ of mandamus directing the Pickens Circuit Court to vacate its August 19, 2013, order denying Webber's motion to dismiss an action filed against him by Donald Sherrod, Helen Sherrod, and State Farm Fire and Casualty Company (“State Farm”). We grant the petition.

I. Facts and Procedural History

In June 2011, the Sherrods hired Webber to paint the interior of their house. The Sherrods and State Farm allege that Webber and his employees did not cover objects in the house before painting and that overspraying damaged the walls, floors, countertops, fixtures, appliances, and a number of items of personal property in the house.

On July 12, 2011, Donald Sherrod sued Webber in the small-claims court in Pickens County (“the small-claims-court action”). It is undisputed that Sherrod's wife Helen was not a party to the small-claims-court action. The complaint alleged that Webber owed Sherrod $3,000 because the “[p]ainting on the inside of my home was not completed [and the] overspray paint all over the inside of the house” had caused damage.

Following a bench trial, the district court—the small-claims court—entered an order on November 8, 2011, which recounted that the complaint alleged that “the painting on the inside of [the Sherrods'] home was not completed, and that [Webber] oversprayed paint such that the inside of the house and other items were damaged and had to be cleaned.” The district court concluded that Donald Sherrod “is entitled to recover from [Webber] for the damage caused to his home due to overspraying of paint in the amount of $3,000, plus cost in the amount of $136.09.”

Webber paid the judgment amount of $3,136.09 on November 21, 2011, and the district court entered an order acknowledging satisfaction of the judgment on November 28, 2011.¹

In an affidavit filed in the present action, Helen Sherrod stated in part that “[m]y husband sued Larry Webber in Small Claims Court. I was not a party to this Small Claims Court case. After my husband sued Mr. Webber, we made a claim with our homeowner's insurance company, State Farm Fire & Casualty Company.” In their response to Webber's motion to dismiss this action, the Sherrods and State Farm stated that, “[i]n December 2011, after investigating the Sherrods' claim, State Farm paid $41,996.19 to the Sherrods.” In her affidavit, Helen Sherrod stated that State Farm's payment was “for the damage [ ] to the flooring, walls and interior of the home. State Farm did not pay us for the damage[ ] to any of the personal property because the damage[ ] to the personal property [was] not covered by our policy.”²

On March 25, 2013, the Sherrods and State Farm filed an action in the Pickens Circuit Court against Webber (“the circuit-court action”). The complaint in the circuit-court action stated:

“1. Plaintiffs, Helen Sherrod and Donald Sherrod, hired [Webber] to perform certain painting work on their residence in Pickensville, Alabama.

“2. On or about June 25, 2011, the residence of Helen and Donald Sherrod, and their contents and other personal property located in such residence, [were] damaged extensively due to paint overspraying, negligence, and/or poor workmanship committed by [Webber].

“3. As a proximate consequence of [Webber's] said conduct, the residence, real property and personal property of plaintiffs, Helen Sherrod and Donald Sherrod, [were] rendered damaged and greatly depreciated in value.

“4. Plaintiff, State Farm Fire and Casualty Company, is subrogated in part to the rights of Helen Sherrod and Donald Sherrod against [Webber] on account of the matters set forth above.

“WHEREFORE, [the Sherrods and State Farm] demand judgment in their favor and against [Webber] as follows: in favor of the plaintiffs, Helen Sherrod and Donald Sherrod, and against [Webber] in the amount of $35,000.00 plus interest, and in favor of plaintiff, State [Farm], and against [Webber] in the amount of $41,996.19, plus interest, plus the costs accruing in this action.”

On May 24, 2013, Webber filed a motion to dismiss the complaint, asserting that the action was barred by the doctrine of res judicata and the prohibition against double recovery. On June 14, 2013, the Sherrods filed a response to the motion to dismiss in which they argued that Helen Sherrod owned an undivided one-half interest in the personal property in the Sherrods' residence, that she was not a party to the small-claims-court action, and that she did not recover anything herself in that action. On June 21, 2013, the Sherrods and State Farm filed a second response to the motion to dismiss in which they argued that Helen Sherrod and State Farm were not parties to the small-claims-court action, that there was not “substantial identity of the parties” between the two actions, and that the small-claims court was not a court of competent jurisdiction, for purposes of res judicata. On June 25, 2013, Webber filed a reply to the the Sherrods and State Farm's response to his motion to dismiss. In that reply, Webber noted that, as a subrogee, State Farm “steps into the shoes of its subrogor and that [a] subrogee only gets those rights that its subrogor has.” On June 27, 2013, the Sherrods and State Farm filed a “Supplemental Response” to the motion to dismiss in which they argued that Webber's motion was procedurally flawed because, they said, he should have raised the defenses of res judicata and double recovery in a motion for a summary judgment rather than in a motion to dismiss.

On August 19, 2013, the circuit court entered an order denying the motion to dismiss without explaining its reasons. This petition followed.

II. Standard of Review

In Lloyd Noland Foundation, Inc. v. HealthSouth Corp., 979 So.2d 784, 792 (Ala.2007), we observed:

“Although HealthSouth's motion addressing its defenses of res judicata and collateral estoppel was actually framed as a ‘motion to dismiss,’ the motion should have been treated as one seeking a summary judgment because the face of the complaint did not reference the prior litigation.... Furthermore, the trial court clearly considered matters outside the pleadings in making its determination, thus converting the Rule 12(b)(6) motion to dismiss into a Rule 56, Ala. R. Civ. P., summary-judgment motion.”

In this case, the complaint did not acknowledge the existence and nature of the judgment that resulted from the small-claims-court action. Instead, Webber submitted a copy of that judgment with his motion to dismiss. The circuit court was due to consider that attachment, thus effectively converting Webber's motion to dismiss to a motion for a summary judgment. See, e.g., Graveman v. Wind Drift Owners' Ass'n, Inc., 607 So.2d 199, 202 (Ala.1992) (stating that conversion of a motion to dismiss to a motion for a summary judgment “is proper where, as here, the parties, in support of, or in opposition to, the motion, file matters outside the pleadings and these matters are not excluded by the court”).

A petition for a writ of mandamus is an appropriate method by which to seek this Court's review of the denial of a motion to dismiss or for a summary judgment predicated on the doctrine of res judicata. Ex parte LCS Inc., 12 So.3d 55, 56 (Ala.2008) (citing Ex parte Sears, Roebuck & Co., 895 So.2d 265 (Ala.2004) ). See also Ex parte Jefferson Cnty., 656 So.2d 382 (Ala.1995).

“The standard governing our review of an issue presented in a petition for the writ of mandamus is well established:

“ ‘[M]andamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Cupps, 782 So.2d 772, 774–75 (Ala.2000) (quoting Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989) ).

Our standard of review for a ruling on a motion for a summary judgment is as follows:

“We review the trial court's grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. ‘We review the evidence in a light most favorable to the nonmovant.’ 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).”

Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006).

III. Analysis

Webber's primary argument is that the circuit-court action is barred by the doctrine of res judicata.

“The elements of res judicata are ‘ “(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.” ’ Chapman Nursing Home, Inc. v. McDonald, 985 So.2d 914, 919 (Ala.2007) (quoting Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala.1998) ).”

Greene v. Jefferson Cnty. Comm'n, 13 So.3d 901, 910 (Ala.2008) (emphasis added). “ ‘If those four elements are present, then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation.’ ” Ex parte LCS Inc., 12 So.3d at 57–58 (quoting Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala.1998) ).

“ ‘ “Res judicata is a broad, judicially developed

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