Bella Investments, Inc. v. Multi Family Services, Inc.

97 So. 3d 787, 2012 WL 1918520, 2012 Ala. Civ. App. LEXIS 131
CourtCourt of Civil Appeals of Alabama
DecidedMay 25, 2012
Docket2110120
StatusPublished
Cited by3 cases

This text of 97 So. 3d 787 (Bella Investments, Inc. v. Multi Family Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bella Investments, Inc. v. Multi Family Services, Inc., 97 So. 3d 787, 2012 WL 1918520, 2012 Ala. Civ. App. LEXIS 131 (Ala. Ct. App. 2012).

Opinion

THOMAS, Judge.

Bella Investments, Inc. (“Bella”), appeals from a summary judgment entered by the Jefferson Circuit Court (“the trial court”) in favor of Multi Family Services, Inc. (“MFS”), on Bella’s claims against [790]*790MFS. We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

This is the second time these parties have been before this court. See Bella Invs., Inc. v. Multi Family Servs., Inc., 80 So.3d 921 (Ala.Civ.App.2011). We set forth the pertinent background and procedural history of this case in Bella, which we quote below, and we use the terms defined therein as defined terms in this opinion:

“In June 2003, Bella entered into a contract with MFS for MFS to serve as the general contractor for the construction of a hotel in Gardendale. The contract between the parties included a warranty provision, warranting MFS’s . work for one year from the issuance of the certificate of occupancy. MFS, in turn, contracted with various other entities, including David & Company Architects, Inc. (‘David & Company1), to serve as the architects for the project and Danny Hawkins d/b/a Danny Hawkins Floor Covering (‘Hawkins’) to serve as a subcontractor to install tile flooring in the hotel.
“The building inspector for the City of Gardendale inspected the hotel on April 5, 2006, and, that same day, issued a certificate of occupancy for the hotel. At the time that the certificate of occupancy was issued, several issues, including cracking in some of the floor tiles, remained outstanding and had been listed ón a punch list of items for MFS to remedy. Bella also made requests under the warranty provision of the contract for MFS to repair cracked floor tiles in the hotel. According to Bella, problems with cracking floor tiles continued and MFS failed to remedy the issue.
“On August 4, 2008, Bella sued MFS, C. Boyd Edgerton, in his individual capacity, David & Company, and various fictitiously named defendants in the Marshall Circuit Court. In its complaint, Bella asserted claims of negligence/wantonness, negligent hiring and supervision, suppression, and breach of contract. Bella also asserted that MFS’s subcontractors were liable to Bella because Bella was a third-party beneficiary to the contracts between MFS and the subcontractors. Bella then moved the Marshall Circuit Court to transfer the action to the Jefferson Circuit Court; MFS and Edgerton joined Bella’s motion to transfer the action. On September, 30, 2008, the Marshall Circuit Court transferred the action to the Jefferson Circuit Court....
“On November 3, 2008, Bella amended its complaint, reasserting its claims and substituting Layne Structural, Gonzales Strength & Associates, Inc., Tusco Fence, Inc., and Whiten Pools for some of the fictitiously named defendants. MFS answered Bella’s complaint, denying all its material allegations and asserting certain affirmative defenses, including the statute of limitations. MFS also asserted a counterclaim against Bella, alleging that Bella had breached its contract with MFS by failing to pay MFS the full amount owed under the contract. In addition, MFS asserted a third-party complaint against Suresh Parmar and Bharti Parmar, in their individual capacities, alleging that the Par-mars had executed a note in favor of MFS, which they had not paid. On May 5, 2010, Bella filed a second amended complaint, reasserting its claims and substituting Hawkins for one of the fictitiously named defendants.
“On June 14, 2010, MFS moved the trial court for a summary judgment on all Bella’s claims against it. MFS asserted three bases in support of its sum[791]*791mary-judgment motion: (1) that all Bella’s claims were barred by the applicable statute of limitations, as provided in § 6-5-221, Ala.Code 1975; (2) that Bella did not provide MFS with notice of its claims, in contravention of the contract between the parties; and (3) that there was no genuine issue of material fact concerning Bella’s suppression claim. MFS also submitted evidence in support of its summary-judgment motion. Bella filed a brief in opposition to MFS’s summary-judgment motion and submitted evidence in support of its brief in opposition.
“On September 23, 2010, the trial court entered a summary judgment in favor of MFS on all Bella’s claims against it. In its order, the trial court stated that it had determined, among other things, that Bella’s claims were barred by the statute of limitations. The summary-judgment order also stated that ‘[t]his order shall not affect [Bella’s] claims against Defendants David & Company ... and [Hawkins],’ the only other defendants still remaining in the action.... Bella filed a purported post-judgment motion requesting that the trial court alter, amend, or vacate its summary-judgment order, which the trial court denied. Bella subsequently appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.”

Bella, 80 So.3d at 922-24 (footnotes omitted).

In Bella, we dismissed Bella’s appeal as having been taken from a nonfinal judgment because several claims against other defendants as well as MFS’s counterclaim and third-party claims were still pending in the trial court and the trial court had failed to certify the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Id. at 924.

After this court issued a certificate of judgment in Bella, on October 13, 2011, MFS filed a motion to dismiss its counterclaim against Bella and its third-party claims against Suresh Parmar and Bharti Parmar without prejudice. Additionally, on October 13, 2011, Bella filed a stipulation of dismissal with the trial court, noting that it stipulated to the dismissal of all its claims against David & Company and Hawkins. That same day the trial court entered an order dismissing MFS’s counterclaim and third-party claims and Bella’s claims against David & Company and Hawkins. On October 28, 2011, Bella filed a timely notice of appeal; its appeal was transferred by the supreme court to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Issues

On appeal, Bella argues that the trial court erred in entering a summary judgment in favor of MFS because, it says: the trial court failed to view the evidence in the light most favorable to Bella, the non-movant; MFS failed to meet its burden of establishing that there was no genuine issue of material fact regarding Bella’s claims associated with defects unrelated to the cracked tile flooring; MFS should have been estopped from asserting the affirmative defense of the statute of limitations as to Bella’s claim regarding the cracked tile flooring; and the trial court erred in determining that Bella’s claims regarding defects unrelated to the cracked tile flooring had accrued on the date the certificate of occupancy was issued.

Standard of Review

‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ’ McClendon v. Mountain Top Indoor [792]*792Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving

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97 So. 3d 787, 2012 WL 1918520, 2012 Ala. Civ. App. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bella-investments-inc-v-multi-family-services-inc-alacivapp-2012.