STUART, Justice.
Tender Care Veterinary Hospital, Inc. ("TCVH"), appeals the summary judgment entered by the Montgomery Circuit Court in favor of First Tuskegee Bank on breach-of-fiduciary-duty and fraud claims asserted by TCVH stemming from a construction loan TCVH received from First Tuskegee in September 2004. We affirm.
In 2004, TCVH sought financing from First Tuskegee to construct a veterinary clinic and animal hospital in Pike Road. TCVH asserts that First Tuskegee ultimately agreed to loan TCVH the requested funds on the condition that TCVH employ PJ Construction and Services, Inc. ("PJ Construction"), as the general contractor on the project. TCVH's president, Dr. Patricia Joyce Patterson, testified in a deposition that she agreed to that condition after First Tuskegee's president, James W. Wright, assured her that PJ Construction would "do a good job." Accordingly, on September 30, 2004, TCVH executed a loan agreement with First Tuskegee pursuant to which it borrowed $675,000.
TCVH thereafter entered into a construction agreement with PJ Construction, and, pursuant to that agreement, PJ Construction began work at TCVH's site in Pike Road. Under the terms of that construction agreement, the maximum price of the project was to be $300,000 and work was to be completed within 180 days, or approximately some time in April 2005.
TCVH subsequently received approval from First Tuskegee to act as its own general contractor, and it thereafter supervised construction and managed subcontractors until the veterinary clinic and animal hospital opened in August 2006. However, the business was not profitable and, in September 2007, TCVH filed a petition for bankruptcy protection. In January 2008, First Tuskegee sued TCVH's owners, Dr. Patterson and Dr. Howard King, seeking to recover on personal guaranty agreements they had made as part of the loans issued to TCVH, and in July 2008 First Tuskegee obtained a $1,623,285 judgment against them. TCVH was also engaged in multiple other lawsuits related to the construction of its facility and its business operations during this time.
On April 7, 2009, TCVH initiated the instant action when it moved the Montgomery Circuit Court to enter an injunction enjoining First Tuskegee from selling the TCVH property at a foreclosure sale later that day. Upon TCVH's agreeing to deposit one month's interest on the loans — $11,063 — with the court, the trial court enjoined the foreclosure sale for 30 days to allow TCVH additional time to pay the amounts it owed First Tuskegee. However, after that 30-day period had expired and TCVH still had not made full payment of the loans to First Tuskegee, the trial court allowed the foreclosure sale to be conducted and eventually disbursed to First Tuskegee the funds being held by the court.
Nothing further happened in the case until approximately two years later, when TCVH moved the trial court to schedule a status conference. At that status conference, the trial court granted TCVH's request for leave to amend its complaint, and, on December 9, 2011, TCVH filed an amended complaint asserting breach-of-fiduciary-duty and fraud claims against First Tuskegee. The gravamen of those claims was that TCVH had been injured by First Tuskegee's requirement that it use PJ Construction as the general contractor on the project because PJ Construction was not licensed as a general contractor in Alabama and because the quality of its performance was below the quality one would expect from a properly licensed general contractor. The trial court then reinstated the case to its active docket, and, following a period of discovery, First Tuskegee moved the trial court to enter a summary judgment in its favor, arguing, among other things, that TCVH's claims were time-barred. Specifically, First Tuskegee noted that both of TCVH's claims were subject to a two-year statute of limitations and that Dr. Patterson had stated in her deposition that she first learned that PJ Construction was not licensed as a general contractor in approximately
TCVH opposed First Tuskegee's summary-judgment motion and submitted a new affidavit from Dr. Patterson in which she now asserted that she actually had not discovered that PJ Construction was not licensed as a general contractor until November 2008. Thus, TCVH argued, its claims were in fact timely. First Tuskegee promptly moved to strike Dr. Patterson's affidavit on the ground that it was untimely because it was filed only the day before the summary-judgment hearing and on the basis of the sham-affidavit doctrine. See Rule 56(c)(2), Ala. R. Civ. P. (stating that "any statement or affidavit in opposition [to a summary-judgment motion] shall be served at least two (2) days prior to the hearing"), and Panayiotou v. Johnson, 995 So.2d 871, 879 (Ala.2008) ("[T]he so-called `sham affidavit doctrine' ... prevents an individual from contradicting prior sworn testimony to avoid the entry of a summary judgment....").
On April 17, 2014, the trial court granted both First Tuskegee's motion to strike Dr. Patterson's affidavit and its motion seeking a summary judgment, stating in relevant part:
On May 13, 2014, the trial court denied TCVH's motion to alter, amend, or vacate the order entering the summary judgment in favor of First Tuskegee, and, on June 24, 2014, TCVH filed this appeal.
We review a summary judgment pursuant to the following standard:
Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).
TCVH argues that the summary judgment should be reversed because, it argues, the trial court erred in holding that TCVH's claims were time-barred. Although TCVH acknowledges that both of its claims are subject to a two-year statute of limitations, it argues that the trial court erred by concluding that the claims accrued in approximately July 2005, when First Tuskegee alleges TCVH discovered that PJ Construction was not a licensed general contractor. Rather, TCVH argues that its breach-of-fiduciary-duty claim did not accrue until First Tuskegee initiated foreclosure proceedings in early 2009 and their relationship turned adversarial and that its fraud claim did not accrue until November 2008, when TCVH asserts it actually learned that PJ Construction was not a licensed general contractor. TCVH argues that its December 2011 amended complaint asserting those claims relates back to its April 2009 filing and that its claims were therefore asserted within two years of their accrual in early 2009 and November 2008, respectively. See Weber v. Freeman, 3 So.3d 825, 834-35 (Ala.2008) ("[The plaintiff's] clarified second amended complaint was filed after the statutory period had run; therefore, the claims against [the defendant] set forth in the amended complaint are time-barred unless Rule 15, Ala. R. Civ. P., applies. Under Rule 15(c)(2), an amendment relates back to the original complaint when `the claim ... asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading....'").
We first consider the timeliness of TCVH's breach-of-fiduciary-duty claim. In support of its argument that the limitations period on this claim did not begin to run until its fiduciary relationship with First Tuskegee turned adversarial in early 2009, TCVH cites Tonsmeire v. AmSouth Bank, 659 So.2d 601, 604 (Ala.1995), for the proposition that "`[t]he [limitations period] for [an action based on] breach of fiduciary duty begins to run once the fiduciary relationship is terminated and possession of trust property by the trustee
Dr. Patterson gave unequivocal testimony regarding both of those points in her deposition. With regard to the damage sustained by TCVH, Dr. Patterson testified that by June 2005 it was clear that PJ Construction's work product was not what one would expect from a licensed general contractor because, she stated, PJ Construction was committing obvious violations of building codes and was not completing its work in a workmanlike manner. When asked by First Tuskegee's attorney specifically whether TCVH had, at that point in time, been damaged by the actions of PJ Construction, she readily agreed that it had:
When asked to clarify when TCVH learned that PJ Construction was not a licensed general contractor, Dr. Patterson also made it clear that she had become aware of that fact in approximately July 2005:
Thus, Dr. Patterson, TCVH's corporate representative, acknowledged that, by approximately July 2005, TCVH was aware 1) that the misrepresentation First Tuskegee allegedly made — that PJ Construction was a licensed general contractor that would do a good job — was false and 2) that TCVH had been injured as a result of that misrepresentation. The breach-of-fiduciary-duty and fraud claims subsequently asserted in the April 2009 action were accordingly untimely because they were not asserted for more than two years after they accrued in approximately July 2005.
We further note, with regard to TCVH's argument that, via her affidavit contradicting her deposition testimony, Dr. Patterson created a genuine issue of material fact regarding when TCVH learned that PJ Construction lacked a general contractor's license, that this argument is not properly before us. The trial court struck Dr. Patterson's affidavit pursuant to the sham-affidavit doctrine (although it did not specifically invoke that doctrine by name), and it also appears to be undisputed that the affidavit was untimely. See Van Voorst v. Federal Express Corp., 16 So.3d 86, 90-92 (Ala.2008) (noting that there were "multiple valid grounds" for the trial court to strike an affidavit that contradicted a party's previous sworn testimony and that was also untimely filed). Nevertheless, TCVH continues to cite the affidavit, although it has not offered any argument as to whether the trial court erred by striking the affidavit. In Gonzalez v. Blue Cross/Blue Shield of Alabama, 689 So.2d 812, 819 (Ala.1997), abrogated on other grounds, as recognized by Ex parte Prudential Ins. Co. of America, 785 So.2d 348, 350 (Ala.2000), this Court considered a similar situation and stated:
See also Chambers v. Advanced Processing Sys., 853 So.2d 984, 990 (Ala.Civ.App. 2002) ("Given the plaintiffs' failure to demonstrate that the trial court erred in ordering Chambers's affidavit stricken, we may not consider the assertions set forth in that affidavit in our review of this appeal."). Thus, there is no real dispute regarding the date TCVH learned that PJ Construction was not licensed, and, accordingly, both TCVH's breach-of-fiduciary-duty claim and its fraud claim are untimely.
TCVH asserted breach-of-fiduciary-duty and fraud claims against First Tuskegee stemming from a construction loan First Tuskegee made to TCVH in September 2004. The gravamen of those claims was
AFFIRMED.
MOORE, C.J., and PARKER, SHAW, and WISE, JJ., concur.