87 So. 3d 573
Ala. Civ. App.2011Background
- In June 2001, Mitchell built a house for the Franklins for $143,500, per plans supplied by the Franklins.
- Construction was completed and the Franklins moved in October 2001.
- In April 2006, the Franklins observed sagging and soft floors in the bathroom and kitchen areas.
- Franklins suspected defective flooring; Mitchell acknowledged receiving defective flooring from the supplier and provided contact information to the Franklins.
- From March 2007, Payne’s inspection showed moisture-related decking failure, mold, and improper air leakage; HVAC-related repairs followed.
- The Franklins sued Mitchell in February 2009 for negligent construction, subsequent negligent repairs, and breach of contract; Mitchell sought summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual of negligence claim | Franklins contend accrual occurred in 2007 when moisture damage became apparent. | Mitchell argues accrual in 2006 when sagging floors were first noticed, triggering a two-year limit. | Accrual occurred when damage first became apparent; the claim was time-barred. |
| Estoppel to plead statute of limitations | Mitchell’s assertion of expired warranty induced delay in filing, constituting estoppel. | No affirmative inducement or promise to repair in exchange for delay; no estoppel. | No estoppel; defendant not responsible to toll the limitations period. |
| Subsequent negligent repairs and agency | SMHA was Walter Mitchell's agent or acting by estoppel; repairs were negligent and causally connected to damages. | SMHA acted independently; Mitchell did not supervise or pay for repairs; no damages shown from repairs. | No genuine issue of material fact; SMHA not Mitchell's agent; no damages shown from repairs. |
Key Cases Cited
- CertainTeed Corp. v. Russell, 883 So. 2d 1269 (Ala. 2003) (AEMLD accrual when damage observed, not when cause known)
- Jim Walter Homes, Inc. v. Kendrick, 810 So. 2d 645 (Ala. 2001) (no estoppel where no affirmative promise to repair in exchange for delay)
- Koch v. State Farm Fire & Casualty Co., 565 So. 2d 226 (Ala. 1990) (negligence accrues when claimant entitled to maintain action)
- Moore v. National Security Insurance Co., 477 So. 2d 346 (Ala. 1985) (estoppel requires affirmative inducement delaying suit)
- West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870 (Ala. 1989) (definition of substantial evidence for summary judgments)