MARK E. FULLER, District Judge.
This action arises out of the construction of a helicopter hangar at Defendant Bell Aerospace Services, Inc.'s ("Bell Aero") facilities in Ozark, Alabama ("the Project"). Bell Aero was the owner of the Project and Defendant Barge, Waggoner, Summer & Cannon, Inc. ("BWSC") was the project engineer (collectively, "Defendants"). Plaintiff Glenn Construction Company, LLC ("Glenn Construction") was hired as the general contractor for the Project on February 2, 2007. Mike Wolfe ("Wolfe") is the co-owner and president of Glenn Construction. Glenn Construction brings claims for breach of contract,
This Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. § 1332 (diversity).
This action arises out of a $6,000,000 contract ("the Contract") between Glenn Construction and Bell Aero for the construction of the helicopter hangar at Bell Aero's facilities in Ozark, Alabama.
In 2005, Bell Aero contacted BWSC regarding the Project and began preparing for the bidding process. Bell Aero selected BWSC to serve as the engineer on the Project. According to Bell Aero, prior to submission of its bid, Glenn Construction had a complete copy of the Project Manual. (Doc. # 55, at 2 (citing Doc. # 56 Ex. 2, Wolfe Dep. 92:11-17)). The Instruction to Bidders section of the Project Manual permitted bidders to "access the site to conduct such investigations and tests as each [b]idder deems necessary for submission of his bid with prior approval of OWNER or ENGINEER." (Doc. # 57 Ex. 41). Glenn Construction did not do any such investigations or tests prior to bidding on the Project. (Doc. # 56 Ex. B, Wolfe Dep. 95:11-96:23). The Instruction to Bidders section also stated that "[t]he submission of a bid will constitute an incontrovertible representation by the Bidder
On January 4, 2007, Glenn Construction submitted its bid for the Project. (Doc. # 66 Ex. 12). On February 2, 2007, Bell Aero awarded the $ 6,000,000 Contract for the Project to Glenn Construction and a notice to proceed was prepared that same day. (Doc. # 66 Ex. 13). Glenn Construction received the notice to proceed and began work on February 7, 2007. (Doc. # 66 Ex. 14). Pursuant to the notice to proceed, Glenn Construction was to complete the Project within 226 days making September 21, 2007 the date of completion. (Doc. # 57 Ex. 4). Additionally, the Contract contained General Conditions, drawings, and Specifications, which were also found in the Project Manual.
The Contract described the engineer as the owner's "representative" on the Project, (Doc. # 57 Ex. 1, General Conditions § 9.01), and the owner was to communicate with the contractor through the engineer. (Id. § 8.01). Under the Contract, the engineer had several responsibilities related to supervising the Project and rendering impartial, binding decisions on various matters. For example, the engineer was to make site visits at "intervals appropriate to the various stages of construction as [it] deems necessary," (Id. § 9.02(A)). The engineer's responsibilities also included issuing, "with reasonable promptness," written clarifications or interpretations of the requirements of the Contract as it "may determine necessary." (Id. § 9.04). Such decisions were binding on both the owner and the contractor. (Id.). The engineer was also permitted to "authorize minor variations" in the Project and such decisions were again binding on both the owner and the contractor. (Id. § 9.05). The engineer could recommend change orders
Section 3.04 explains that "the Contract documents may be amended to provide for additions, deletions and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways: (i) a Written Amendment; (ii) a Change Order[;] or (iii) a Work Change Directive." (Id. § 3.04(A)). Engineering or technical changes are to be made by a change order or a work change directive.
Furthermore, it was "the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents." (Id. § 3.01(B)). At the same time, § 4.03 explained what the contractor is to do upon discovering a subsurface or physical condition that "is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents." (Id. § 4.03(A)). If the contractor discovered such a condition, it was required to notify the owner and engineer "before further disturbing the subsurface or physical conditions or performing any Work in connection therewith." (Id.).
Once the contractor provided notice that the Project was complete, the engineer had to make a final inspection and notify the contractor in writing of all deficiencies. (Id. § 14.06). The parties refer to this written notice as a "punch list" — i.e. a list of things that the engineer determines needs to be fixed. The contractor was to fix the items on the punch list prior to seeking final payment. Section 14.07 provided that — once the contractor had completed the items on the punch list to the engineer's satisfaction and had provided certain documents — the contractor could apply for final payment.
One of the major problems during the Project involved an underground stream located on the property. Soon after construction began, the site work contractor discovered underground water, initially believed to be an isolated pocket. (Doc. # 66 Ex. 9, Wolfe Aff. at 2). It was later discovered that the water was actually an underground stream. (Id.). BWSC had been involved with several projects on the property in question since 1997. (Doc. # 56 Ex. 3, Mott
Glenn Construction contends that BWSC miscalculated the anticipated column loads for the foundations which allegedly caused significant delays on the project. The column load is the "outward force pushing the columns horizontally at the point where they connect to the foundation." (Doc. # 66, at 4). Glenn Construction claims that BWSC knew of the miscalculation prior to submitting the Project to bid. In July 2006, Ted Persing ("Persing"), a structural engineer at BWSC, instructed Michael Cole ("Cole"), the Project Coordinator at BWSC, to include in the Requests for Proposals that "the largest anticipated column load is approximately 70" kps. (Doc. # 66 Ex. 1). In September of 2006, Persing received estimated column loads for a metal building of the same size and shape as the Project's hangar. (Doc. # 66 Ex. 2). However, Glenn Construction claims that these were "generic designs" that "did not contain several features specific to the Project that would add additional ... loads, including sprinkler and fire suppression systems and a ten ton crane." (Doc. # 66, at 4). According to Glenn Construction,
Glenn Construction claims that BWSC knew of the miscalculated loads. On January 3, 2007, a bidder and potential contractor e-mailed BWSC stating that its own metal building manufacturer had calculated an approximate column load of 164 kps for one of the columns — over twice as much as originally calculated. (Doc. # 66 Ex. 5). The bidder confirmed this load calculation two weeks later and asked BWSC to review the loads and determine whether the foundations needed to be redesigned. (Doc. # 66 Ex. 6). Despite this information, the drawings given to the bidders reflected only a 76 kps load. These same drawings were later incorporated into the Contract. (Doc. # 66 Ex. 7). Eventually, as discussed further below, BWSC revised these drawings during the Project to reflect increased column loads.
While BWSC was solely responsible for the design and construction of the foundation, Glenn Construction contracted with a metal building manufacturer — OSI Building Systems, Inc. ("OSI") — to design and build the metal hangar. (Doc. # 50, at 5). According to Glenn Construction, BWSC represented at a pre-bid meeting that it "would send a structural engineer to whomever the metal building subcontractor was to review metal building submittals on site." (Doc. # 66, at 6 (citing Doc. # 56 Ex. 2, Cole Dep. 139:1-141:2); Doc. # 66 Ex. 9, Wolfe Aff. at 1-2). Cole, BWSC's coordinator on the Project, admitted that such a practice would be atypical but that it would expedite the schedule by allowing the engineers to review the materials together and avoid "lag time for deliveries." (Doc. # 56 Ex. 2, Cole Dep. 139:20-140:4; see also Doc. # 66 Ex. 9, Wolfe Aff. at 1-2). BWSC claims that its intent throughout the Project was to expedite the review of submittals, including by "sending engineers to the site of the metal building manufacturer." (Doc. # 50, at 3 (citing Doc. # 56 Ex. 3, Mott Dep. 33:14-34:11)).
In order to design and fabricate the hangar, OSI needed a set of drawings. BWSC instructed Glenn Construction to have its subcontractors access BWSC's website and download drawings as needed. (Doc. # 66 Ex. 9, Wolfe Aff. at 5). BWSC provided the website address, username, and password required to access the drawings and "advised [Glenn Construction] to forward it to all subcontractors and suppliers for their use." (Id.). However, the drawings posted by BWSC on the website and downloaded for use by OSI "were obsolete and not identical to the printed sets provided to Glenn Construction." (Id.).
As Wolfe testified, "[i]t takes 12-16 weeks to fabricate a metal building once plans are approved." (Id. at 6). On March 5, 2007, Glenn Construction notified BWSC that the OSI drawings would be available for BWSC's review on March 13, 2007. (Id.). However, despite BWSC's pre-bid promise to review the drawings on site, Cole informed Wolfe that BWSC would not do so unless Glenn Construction paid for the cost of sending the engineer. (Id.).
On March 22, 2007, BWSC received a second submittal from OSI. (Id.). Wolfe claims that BWSC promised to return their comments the "next day." (Doc. # 66 Ex. 9, Wolfe Aff. at 6). However, BWSC again returned the submittal on April 3, 2007 with instructions to "revise and resubmit." (Doc. # 66 Ex. 16). During an April 4, 2007 conference call, the parties realized that scanned drawings OSI used were obsolete. (Doc. # 66 Ex. 9, Wolfe Aff. at 7; see also id. Exs. 17-18). The following day, Glenn Construction submitted a revised schedule indicating that the time for completing the metal hangar had been pushed back by two months. (Doc. # 66 Ex. 9, Wolfe Aff. at 7).
Finally, on April 19, 2007, OSI mailed submittals based on the correct drawings to BWSC, who received them the next day. (See id.; Doc. # 66 Ex. 16). At this time, Glenn Construction stated its belief that the planned installation of a twenty-foot crane would be impossible because "[t]he combination of the loading requirements and a height limitation on the building would not allow a 20-foot crane lift height." (Doc. # 66 Ex. 9, Wolfe Aff. at 7-8). On May 1, 2007, BWSC disapproved OSI's designs, in part, because they could not meet the twenty-foot crane height requirement. (Doc. # 66 Ex. 9, Wolfe Aff. at 9). Later in May, BWSC suggested changing the slope of the hangar building to accommodate the crane height requirements; however, Glenn Construction alleges that such a change would require OSI to completely redesign the hangar. (Id.). "On May 9, 2007, OSI notified BWSC [that] ... the hangar could not be built even as originally designed by BWSC." (Id. at 10; see also Doc. # 66, at 15). On May 13, 2007, BWSC again told OSI to "revise and resubmit" their drawings. (Doc. # 66, at 15). Eventually, Bell Aero approved a crane height of less than twenty feet. (Wolfe Aff., Ex. 9, at 8). OSI notified Glenn Construction that the fourth and final design package would be ready for review on May 18, 2007. (Id.). That day, BWSC sent engineer Michael Petrin ("Petrin") to review the documents in Montgomery, Alabama. (Doc. # 69 Ex. 4, Ashley
As previously discussed, BWSC included anticipated column loads for the foundations of approximately 70 kps in the Contract. However, on May 17, 2007, the day before BWSC approved OSI's final drawings for hangar, Dan Bartholomew ("Bartholomew") — BWSC's structural engineer of record for the Project — issued a revised set of structural drawings that listed anticipated column loads as high as 141 kps. (Doc. # 66 Ex. 8). The underground stream limited how deep the foundation could go into the ground. According to Glenn Construction, the shallower depth and the increased loads increased the requirements for the pedestals bearing the loads, including the pedestal size and the amount of reinforcing steel needed. (Doc. # 66, at 17). These changes particularly affected two types of pedestals: the type P-3 pedestals located along the side walls of the hangar and designed to bear the majority of the loads and the type P3B pedestals located under the corners of the hangar supporting the hangar doors. Additionally, the new drawings added new P3B pedestals that did not appear in the original drawings from December of 2006. (Id.).
With respect to the P-3 pedestals, Glenn Construction alleges that it's reinforcing subcontractor could not fit the reinforcing bars required by the revised drawings into the space indicated. (Doc. # 66 Ex. 9, Wolfe Aff. at 11). When Glenn Construction sought clarification from BWSC's on-site representative, the representative allegedly acknowledged an apparent engineering design problem and contacted the BWSC structural engineer. (Id.). According to Glenn Construction, after a ten-minute phone call and without checking structural design calculations, BWSC's representative conceded that the designs were defective and told Glenn Construction to deviate from the new designs. (Id.).
On July 11, 2007, Glenn Construction issued a Request for Information regarding problems with the P-3B pedestals. (Doc. # 66 Ex. 25). BWSC engineer Eriks Jekabsons ("Jekabsons") issued a response instructing Glenn Construction to remove two of the reinforcement bars. (Id.). That same day, Glenn Construction issued another Request for Information about the positioning of the anchor bolts in the revised drawings, and Jakabsens responded that the drawings were "for illustrative purposes only" and directed Glenn Construction to "field adjust to accommodate [the] anchor bolts." (Doc. # 66 Ex. 26). The following day, Glenn Construction issued another Request for Information asking BWSC to run the reinforcement data through a three-dimensional ("3D") software
On July 23, 2007, Mott sent an email to BWSC employee's expressing concern about producing a 3D drawing. (Doc. # 66 Ex. 29). Specifically, he was worried because, "[u]p until this point, [BWSC] had told [Glenn Construction] that it is not [BWSC's] responsibility to do this" and because he could "see [Glenn Construction] saying that if BWSC had done this four weeks ago, there would not [have been] any delays with the rebar placement." (Id.). That same day, Petrin responded and told Mott that he had "asked [BWSC's] structural group to draw a plan and section (not a 3D drawing) showing all bars drawn to scale in the correct locations." (Id.). Petrin assured Mott that the drawings were "intended for internal use" and not for issuance to Glenn Construction. (Id.). Petrin testified that he asked for these to-scale drawings to make sure that BWSC's designs were possible. (Doc. # 69 Ex. 1, Petrin Dep. 161:7-164:18). Glenn Construction never saw the internal drawings during the Project.
Glenn Construction claims that BWSC admitted on July 27, 2007 that it was physically impossible to fit the required number and type of reinforcement bars in the space called for in the drawings. (Doc. # 66 Ex. 9, Wolfe Aff. at 13). BWSC then instructed Glenn Construction to stagger the reinforcing bars so that they would overlap each other. (Id.). BWSC, Glenn Construction, and Bell Aero held an on-site meeting. (Id.). Neither of the two persons sent by BWSC were licensed structural engineers, but they told Glenn Construction to "field adjust" in placing the reinforcing steel. (Id.).
(Doc. # 68 Ex. 2). That same day, Glenn Construction sent a letter to Bell Aero requesting assistance on the problems with the P3 and P3-B pedestals. (Doc. # 68 Ex. 3). Glenn Construction explained that, as per the Contract and building codes, BWSC needed to provide dimensioned drawings and that Glenn Construction could not place the reinforcements without these drawings.
Four days later, BWSC informed Glenn Construction that its "senior professional structural engineers [had] review[ed] the plans multiple times and ... determined that there [were] no design problems with the plans." (Doc. # 66 Ex. 9, Wolfe Aff. at 16). Glenn Construction then "requested a copy of any and all reports issued by the consulting structural engineer PSI." (Id.). BWSC refused to provide the reports but agreed to inspect the pedestals and provide comments on any deficiencies. (Id.). Glenn Construction then told BWSC that it would be ready for installation of the pedestals on September 5, 2007 if BWSC would have a structural engineer available that day. (Id.). On September 5, 2007, BWSC sent a licensed structural engineer to the site. The structural engineer told Glenn Construction to remove specific types of reinforcing bar assemblies and to place them into different locations than indicated on the drawings. (Id. at 17). Glenn Construction contends that it was generally able to proceed with its work on these pedestals unimpeded from that day forward. (Id.).
Glenn Construction also alleges that BWSC interfered with its subcontractors. For example, Glenn Construction contends that "BWSC directed the site work contractor to tear out and raise a storm water inlet" even though it had been installed according to the plans and specifications. (Id. at 21). Glenn Construction protested this action. (Id. at 21). Glenn Construction also alleges that BWSC directed the site work contractor to perform extra work that should have been covered by a change order. (Id. at 20). According to Glenn Construction, BWSC later changed its mind. (Id.).
According to Glenn Construction, BWSC and Bell Aero pressured it into firing its concrete contractor, Skipper Construction Company ("Skipper Construction"). BWSC allegedly later hired that contractor. Bell Aero points out that Skipper Construction and another subcontractor, Team Building Construction, were not licensed as required by Alabama law. See Alabama's General Contractor's Practice Act ("AGCPA"), Alabama Code § 34-8-1 et. seq.; Doc. # 57 Exs. 39-40. Wolfe stated that Skipper Construction provided him "with a false contractor's number" while Team Building "did little or no actual work on the [P]roject." Wolfe testified that he did not check with the Alabama Licensing Board for General Contractors
In the midst of the problems associated with the Project, Glenn Construction contends that it submitted its first claim on July 6, 2007 requesting that BWSC approve an increase the Contract price and an extension of the Contract time. This claim described the allegations regarding the underground stream, the posting of obsolete drawings to the website, the revised drawings for the foundations, and BWSC's failure to provide to-scale drawings. (Doc. # 68 Ex. 10).
According to Glenn Construction, it substantially completed the Project on February 28, 2008 and attempted to schedule an inspection of the hangar building. (Doc. # 66 Ex. 9, Wolfe Aff. at 18). BWSC declared substantial completion on March 14, 2008. (Doc. # 68 Ex. 4). Three days later, BWSC certified Glenn Construction's application for all remaining payments under the Contract except for $6,933.33 needed to fully complete the Project and the five percent retainage of $302,750.62. (Doc. # 68 Ex. 5). By approving this application, BWSC "certified... that to the best of [BWSC's] knowledge, information and belief the Work has progressed as indicated, the quality of the Work is in accordance with the Contract Documents, and the Contractor is entitled to payment of the AMOUNT CERTIFIED." (Id.). By this point, the total Contract price had increased to $6,061,945.89 and BWSC had approved payments totaling $5,752,261.74, including those requested in this application. (Id.). The parties had also increased the Contract time by 15 days and gave Glenn Construction credit for an additional 14 days for delays at the beginning of the Project. (Doc. 55, at 5; Doc. # 57 Ex. 5). Thus, the Project was deemed 98.89% complete. (Doc. # 68 Ex. 5). However, BWSC had not yet ruled on Glenn Construction's alleged claim for additional increases in time and price.
On June 18, 2008, Glenn Construction issued an application for final payment, seeking payment of the balance of the Contract and the retainage. (Doc. # 68
Glenn Construction filed suit on March 25, 2009. On November 9, 2010, Bell Aero filed its first motion for summary judgment. (Doc. # 32).
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fed. R. Civ. Pro. 56(a). The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact."
Once the moving party has met its burden, the non-movant must "go beyond the pleadings" and show that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Fed. R. Civ. Pro. 56(c)(1) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."). To avoid summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis added). A plaintiff must present evidence demonstrating that he can establish the basic elements of his claim. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. A court ruling on a motion for summary judgment must believe the evidence of the non-movant and must draw all justifiable inferences from the evidence in the non-moving party's favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a).
Glenn Construction brings the following fraud claims: (1) BWSC fraudulently suppressed the existence of the underground stream; (2) BWSC fraudulently misrepresented the provision of structural engineering services; (3) BWSC fraudulently misrepresented the turnaround of submittal approvals; (4) BWSC fraudulently misrepresented that its original metal building designs were adequate; and (5) BWSC misrepresented that its foundation design were adequate. (Doc. # 1, at 50-52 ¶¶ 221-229).
Under Alabama law, a plaintiff must prove five elements to establish a claim for fraudulent suppression:
State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 323-24 (Ala.1999) (citations omitted); see also Ala.Code § 6-5-102 ("Suppression of a material fact which the party is under an obligation to communicate constitutes fraud."). BWSC contends that Glenn Construction cannot establish the third element — namely, that BWSC had actual knowledge of the underground stream prior to Glenn Construction's discovery of it. See Glass v. S. Wrecker Sales, 990 F.Supp. 1344, 1350 (M.D.Ala. 1998) (Albritton, J.) ("An action for suppression will lie only if the defendant actually knows the fact alleged to be suppressed.") (citing McGarry v. Flournoy, 624 So.2d 1359 (Ala.1993)). Glenn Construction, on the other hand, argues that it has presented sufficient admissible evidence to create a genuine issue of material fact as to whether BWSC had actual knowledge of the underground stream prior to Glenn Construction's discovery of it. Specifically, Glenn Construction points to the following facts: (1) BWSC had been involved in several projects on the property in question since 1997; (2) BWSC was aware of and had several geotechnical reports done on that property before December of 2006; (3) BWSC had a topographical map prior to 2005 which showed the presence of an old stream within the Project's location; and (4) a contractor who had previously worked with BWSC on a project at the site informed Wolfe that he had encountered similar issues with underground water and had advised BWSC of it.
Again, BWSC contends that "there is absolutely no admissible evidence that BWSC had any knowledge of the underground stream prior to its discovery during construction." (Doc. # 50, at 10; Doc. # 76, at 12). Although BWSC does not explain it as such, it appears that the contractor's statements about previously discovering and advising BWSC of underground water is inadmissible hearsay that this Court cannot consider on summary judgment because it is not reducible to admissible form at trial. See Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135 (11th Cir.1996) ("[The plaintiff] cannot use inadmissible hearsay to defeat summary judgment when that hearsay will not be reducible to admissible form at trial."); see also Macuba v. DeBoer, 193 F.3d 1316, 1325 (11th Cir.1999) (holding that the district court impermissibly considered inadmissible hearsay because it would not be admissible at trial under an exception to the hearsay rule). However, BWSC fails to explain or argue why the remaining pieces of evidence are inadmissible.
Upon consideration of these first three pieces of evidence, this Court is satisfied that a reasonable jury could find that BWSC possessed documents — either the geotechnical reports or the cited topographical map — showing the underground stream's existence because of its prior work on other projects in the location.
Alabama law provides causes of action for both fraud, also called legal fraud, and promissory fraud. Under Alabama law, "fraud is the false representation of a material existing fact inducing reliance and causing damages." Green Tree Acceptance, Inc. v. Doan, 529 So.2d 201, 206 (Ala.1988) (citing Ala.Code §§ 6-5-101 (1975) et seq.) (per curium) (emphasis in original). Thus, to establish a prima facie case of fraudulent misrepresentation under Alabama law, a plaintiff must show "(1) that [the defendant] made a false misrepresentation, (2) that the misrepresentation involved a material [existing] fact, (3) that the [plaintiff] relied on the misrepresentation, and (4) that the misrepresentation damaged the [plaintiff]." AmerUs Life Ins. Co. v. Smith, 5 So.3d 1200, 1207 (Ala.2008); accord Eley v. Travelers Ins. Co., No. 2:09-cv-958-MEF, 2011 WL 671681, at *9, 2011 U.S. Dist. LEXIS 16528, at *29-30 (M.D.Ala. Feb. 18, 2011) (Fuller, C.J.); AstraZeneca LP v. State, 41 So.3d 15, 26 (Ala.2009). There is no requirement of fraudulent intent when bringing a claim for fraud based upon misrepresentation of a material existing fact. Ala. Code § 6-5-101 ("Misrepresentations of material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.") (emphasis added); accord Eley, 2011 WL 671681 at *9, 2011 U.S. Dist. LEXIS 16528 at *28; Burlington N.R.R. Co. v. Warren, 574 So.2d 758, 766-67 (Ala.1990); Coaker v. Washington Cnty. Bd. of Educ., 646 So.2d 38, 42 (Ala.Civ.App.1993).
Promissory fraud, on the other hand, occurs by the failure to perform a promise — i.e. the failure to perform some promised future act. See, e.g. Eley, 2011 WL 671681 at *12 n. 12, 2011 U.S. Dist. LEXIS 16528 at *39 n. 12; Scott v. United of Omaha Life Ins. Co., 749 F.Supp. 1089, 1093 (M.D.Ala.1990) (Hobbs, J.); Brown-Marx Assocs., Ltd. v. Emigrant Sav. Bank, 703 F.2d 1361, 1370-71 (N.D.Ala. 1983). In order to establish promissory fraud, a plaintiff must also prove "that at the time the promise was made, there was an intent not to perform the promised act." Green Tree Acceptance, 529 So.2d at 206 (citing Ala.Code § 6-5-102; Purcell Co. v. Spriggs Enters., Inc., 431 So.2d 515, 519 (Ala.1983)). Furthermore, the mere failure to fulfill the promise is insufficient to establish an intent to deceive. See, e.g., Scott, 749 F.Supp. at 1093 ("[U]nder Alabama law the failure to perform a promise is not itself sufficient to support a charge of fraud. Absent any evidence from the plaintiff that the representation was made with the intent to deceive, the fraud count fails.") (citations omitted); Brown-Marx, 703 F.2d at 1370 ("[U]nder Alabama law failure to fulfill promises does not give rise to actionable fraud unless it is alleged and
Here, BWSC argues that its representation during the pre-bid meeting that it would send a structural engineer to review metal building submittals on site is a claim for promissory fraud. (Doc. # 50, at 11). This Court agrees that this representation was not made regarding a material existing fact, but rather was a promise to perform a future act. See, e.g., Penmont, LLC v. Blue Ridge Piedmont, LLC, 607 F.Supp.2d 1266, 1273 (M.D.Ala.2009) (Thompson, J.) (holding that the defendant's statement that it would return a non-refundable earnest purchase deposit if a commercial real-estate transaction did not go through was promissory fraud). BWSC further argues that Glenn Construction cannot establish an intent to deceive at the time this misrepresentation was made. (Doc. # 50, at 11; Doc. # 76, at 12-13). Glenn Construction correctly points out that "[t]he question of the defendant's intention in making the alleged representation is ordinarily a question of fact for the jury." (Doc. # 66, at 48) (quoting Hillcrest Ctr., Inc. v. Rone, 711 So.2d 901, 905 (Ala.1997) (citations omitted)).
However, the only evidence before this Court with respect to this promise is that BWSC refused to send their structural engineer to the metal building manufacturer unless Glenn Construction paid for it and that, when a structural engineer was sent months later, it was not the structural engineer of record. (Doc. # 66, at 6). "[T]he plaintiff must show more than that the defendant failed to fulfill the promised act." Hillcrest, 711 So.2d at 905 (quoting Nat'l Sec. Ins. Co. v. Donaldson, 664 So.2d 871, 876 (Ala.1995)); see also Rhodes v. Unisys Corp., 170 Fed.Appx. 681, 683 (11th Cir.2006) (affirming summary judgment on a promissory fraud claim because the plaintiff's only evidence of an intent to deceive was an "attempt[] to rely on an inference of intent not to perform, which might be drawn from [the defendant's] failure to perform, rather than providing any actual evidence of [the defendant's] intent to deceive."). Indeed, Glenn Construction makes no argument with respect to the promise to send a structural engineer on site to review the submittals for the metal hangar.
Glenn Construction also brings promissory fraud claims based upon BWSC's several promises during construction to send a structural engineer on site to review the issues with the foundation. (Doc. # 66, at 48-49). In support of this claim, Glenn Construction points to BWSC's email exchange regarding the production of internal drawings and Mott's concern that Glenn Construction would rely upon them to claim that the weeks-long delays in the reinforcement bar placing was BWSC's fault. (Id. at 48). Glenn Construction contends that "a jury could also infer from this exchange that BWSC did not intend to send a structural engineer to perform an [on-site] inspection at the time the promise was made." (Id.; see also id. at 49 ("[T]he jury could infer that the drawing confirmed Glenn Construction's complaints about the P-3 and P-3B pedestals, and that BWSC did not intend to send a structural engineer to the site because his visit [would] similarly confirm that the drawings kept from Glenn Construction were right (and BWSC's initial plans were wrong), and that BWSC would be `liable' to Glenn Construction for delays based on the confirmation.")). BWSC contends that there is no genuine issue of material fact and that the undisputed evidence demonstrates its intent to expedite the Project. (Doc. # 76, at 13 (citing Doc. # 56 Ex. 3, Mott Dep. 33:14-34:11)).
However, this Court agrees with Glenn Construction that there is genuine issue of material fact as to whether BWSC intended to deceive Glenn Construction when it repeatedly promised to send a structural engineer to review the issues with the foundation on-site. Mott's email expressed concern about rendering 3D, to-scale drawings because he could "see [Glenn Construction] saying that if BWSC had done this four weeks ago, there would not [have been] any delays with the rebar placement." (Doc. # 66 Ex. 29). Indeed, Petrin responded to this concern by saying that the drawings would be kept internal and never given to Glenn Construction. (Id.). A jury could reasonably infer that BWSC did not want provide Glenn Construction with these drawings because they could potentially demonstrate that BWSC's designs for the foundation were incorrect and that Glenn Construction was not at fault for the delay in placing reinforcement bars. Similarly, a jury could reasonably infer based on these emails that BWSC did not intend to send a structural engineer to perform an on-site inspection because that could also show Glenn Construction that the designs were defective and that Glenn Construction was not at fault for the delays. Because a reasonable jury could find that BWSC intended to deceive Glenn Construction when it repeatedly said it would send a structural engineer to review the foundation issues on site, BWSC is not entitled to summary judgment on these promissory fraud claims. Thus, BWSC's motion for summary judgment is due to be DENIED with respect to the promissory fraud claim regarding the promises made during construction to send a structural engineer to review the foundations on site.
With respect to the fraud claims regarding the adequacy of the BWSC's
The elements for a claim of intentional interference with a contractual relationship are as follows: (1) the existence of an enforceable contract; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage. Compare White Sands Grp., L.L.C. v. PRS II, LLC, 32 So.3d 5, 14 (2009) (describing the elements of a claim for tortious interference with a business relationship wherein the only difference is that the first element is "the existence of protectible business relationship") with Hope for Families & Cmty. Serv. v. Warren, 721 F.Supp.2d 1079, 1177 (M.D.Ala.2010) (Watkins, J.) (explaining that tortious interference with a business relationship is a separate tort from tortious interference with a contractual relationship because the latter "presupposes the existence of an enforceable contract" but that "[o]therwise, the elements of both torts overlap"); see also MAC East, LLC v. Shoney's, 535 F.3d 1293, 1297 (11th Cir. 2008) ("[A] tortious interference claim can be maintained only when the defendant is independent of or a stranger to the relation or contract with which he allegedly interfered.") (citing Tom's Foods, Inc. v. Carn, 896 So.2d 443, 454 (Ala.2004)).
BWSC argues that Glenn Construction cannot bring tortious interference claims based on the contractual relationships with the subcontractors because such claims were not encompassed in the Complaint. (Doc. # 76, at 13). In support of this contention, BWSC argues the following:
(Id. at 13-14). "[I]f a plaintiff fails to plausibly allege a claim in [his] complaint, []he may not amend [his] complaint through argument made in opposition to a defendant's motion for summary judgment." Webster v. Wynne, No. 2:08-cv-849, 2010 WL 5394752, at *7, 2010 U.S. Dist. LEXIS 136998, at *20 (M.D.Ala. Dec. 28, 2010) (Fuller, C.J.) (citing Gilmour, 382 F.3d at 1314).
However, a review of the Complaint here reveals that Glenn Construction did, in fact, sufficiently allege a claim for intentional interference with its contractual relations with its subcontractors. Count 3 itself lays out a claim for such tortious interference with the contractual relationships with the subcontractors based upon BWSC's actions which allegedly led to Bell Aero denying payment to Glenn Construction. (Doc. # 1, at 53 ¶ 234 ("BWSC also acted so as to prevent the timely payments of monies that were due and owing by Bell Aero with the result that Glenn Construction has been made the subject of claims of subcontractors and Glenn Construction has been damaged in its relationship with said subcontractors and other valuable business contacts.") (emphasis added)). Additionally, Count 3 incorporates all prior paragraphs in the Complaint. (Id. at 52 ¶ 230). These incorporated paragraphs includes sections entitled "Obsolete and Defective Structural Drawings Prepared by BWSC and Posted on BWSC Website" and "Interference with Subcontractors" which include the factual allegations underpinning these claims. (Id. at 9-16 ¶¶ 43-86; id. at 39-40 ¶¶ 195-199). As BWSC makes no further arguments regarding the claim of tortious interference with Glenn Construction's contractual relationships with the subcontractors, this Court finds that BWSC's motion for summary judgment, (Doc. # 49), is due to be DENIED with respect to the intentional interference claims regarding the contractual relations between Glenn Construction and its subcontractors.
With respect to the tortious interference claims regarding Glenn Construction's contractual relationship with Bell Aero, BWSC contends that it was not a stranger to the Contract. That BWSC be a stranger to the Contract is a necessary element of Glenn Construction's prima facie case. See e.g., MAC East, 535 F.3d at 1297; Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1153 (Ala. 2003). Glenn Construction cites to the case of Colonial Bank v. Patterson for the proposition that "when there exists a tri-partite relationship between the parties, a party ... can be liable for tortuous interference when its conduct is not appropriate under its contract with the other two parties." (Doc. # 66, at 51 (citing Colonial Bank v. Patterson, 788 So.2d 134, 138 (Ala. 2000), overruled on other grounds by White Sands Grp., 32 So.3d at 14)). Glenn Construction thus argues that BWSC was a stranger to the Contract because BWSC did not act within its rights under the tri-partite relationship.
Glenn Construction's argument arises from a misunderstanding of Alabama law. The Alabama Supreme Court held in Colonial Bank that one cannot be liable for tortious interference "when tripartite relationships exist and disputes arise between two of the three parties" and the third party engages in conduct "that is appropriate under its contract with the other two parties." 788 So.2d at 138 (citations omitted). However, it did not hold that the opposite was true — i.e. that one whose conduct goes beyond its rights is automatically a stranger to the contract between the two other members of the tri-partite relationship.
The Alabama Supreme Court defines negligence as "the failure to do what a reasonably prudent person would have done under the same or similar circumstances." Ford Motor Co. v. Burdeshaw, 661 So.2d 236, 238 (Ala.1995) (citing Elba Wood Prods., Inc. v. Brackin, 356 So.2d 119, 122 (Ala.1978)); accord Thomas v. Jim Walter Homes, Inc., 918 F.Supp. 1498, 1502-03 (M.D.Ala.1996) (Albritton, J.). A plaintiff must establish four elements under a typical negligence claim: "(1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached that duty; (3) that the plaintiff suffered a loss or an injury; and (4) that the defendant's negligence was the actual and proximate cause of that loss or injury." Id. (citing Lollar v. Poe, 622 So.2d 902, 905 (Ala.1993)); accord Thomas, 918 F.Supp. at 1503. Furthermore, with respect to professional negligence claims, the Alabama Supreme Court has held the following:
Collins Co. v. Decatur, 533 So.2d 1127, 1134 (Ala.1988).
The only argument that BWSC makes with respect to the negligence claims is that it has put forth expert testimony — namely, Cole and Petrin's affidavits — showing that all of the services performed
Glenn Construction first seeks to strike the affidavits of Cole and Petrin on the grounds that BWSC did not comply with the new Rule 26 of the Federal Rules of Civil Procedure. (Doc. # 75). This amended rule became effective on December 1, 2010 and requires parties to disclose the subject matter of a non-retained expert's expected testimony as well as "a summary of the facts and opinions to which the witness is expected to testify." (Doc. # 80)(citing Fed.R.Civ.P. 26(a)(2)(C)). However, the Court need not consider whether the affidavits should be struck because BWSC would still be entitled to summary judgment if Glenn Construction has failed to present any evidence as to the standard of care and breach by BWSC. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548 (holding that the movant can meet its burden on summary judgment by showing that the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof); accord Fitzpatrick, 2 F.3d at 1115-16. Thus, the ultimate issue is whether Glenn Construction has presented sufficient expert testimony regarding the standard of care and its breach by BWSC. If it has, then either BWSC has failed in its initial burden to establish its entitlement to summary judgment or, in the alternative, Glenn Construction has demonstrated a genuine issue of material fact that should go to a jury. Either way, summary judgment would be inappropriate.
Additionally, BWSC filed a motion to strike Brittingham's affidavit on the grounds that Glenn Construction failed to timely designate him as an expert. That motion also need not be decided because Ashley's testimony covers the same issues as Brittingham's testimony — namely, that the revised designs for the drawings in May of 2007 were virtually impossible to construct and that BWSC failed in its responsibility to provide more detail once the congestion and conflict with the reinforcement bars came to its attention. (Doc. # 68 Ex. 7, Brittingham Aff. at 2-4). Because no one has moved to strike Ashley's testimony on substantially the same issues, this Court need not and will not consider Brittingham's affidavit. In sum, Glenn Construction's motion to strike Cole and Petrin's affidavits, (Doc. # 80), and BWSC's motion to strike Brittingham's affidavit, (Doc. # 75), are both due to be DENIED as MOOT.
In arguing that Glenn Construction failed to meet the expert testimony requirement, BWSC relies upon three Alabama Supreme Court cases. Two of these cases, Collins and Watson, involved no expert testimony whatsoever by the plaintiff regarding the alleged bases of his claims. In Collins, the plaintiff, a general
In Reid, the Alabama Supreme Court held that the plaintiff did not present sufficient evidence of the professional standard of care and breach thereof. 350 So.2d at 1027. The plaintiff's expert had testified that there were multiple possible solutions to the safety problem at issue. Id. Furthermore, the defendant's experts presented undisputed testimony that the solution recommended by the defendant would have met the standard of care existing at the time of the alleged breach had it been followed. Id. Thus, the testimony of the plaintiff's expert that one particular solution should have been recommended merely stated his own personal preference and was insufficient to establish a breach. Id.
Turning now to the evidence presented by Glenn Construction in support of its negligence claims, this Court is satisfied that the expert testimony of Ashley, a professional engineer at OSI, suffices to establish the requisite standard of care and breach thereof with respect to some of these claims. Additionally, the Court further finds that some of the standards of care and breaches thereof would be obvious, thus rendering expert testimony unnecessary.
First, regarding the designs for the foundation, Ashley opined that once a structural engineer receives generic metal building loads, "[t]hey must apply engineering knowledge to verify, based on their opinion, that those reactions are correct." (Doc. # 69 Ex. 4, Ashley Dep. 18:8-14) (emphasis added). Ashley's testimony indicates that the ordinary standard of care imposed upon structural engineers when reviewing generic designs is to verify them and that the failure to do so is a breach of that standard. Ashley further testified that, in his opinion, there were engineering criteria known to BWSC when they issued the designs that were not reflected in those designs, that the anticipated loads were "grossly undersized," and that the difference between the anticipated loads and actual loads was "not within normal ranges of variation." (Doc. # 69 Ex. 4, Ashley Dep. 18:15-23, 31:15-20). In other words, this testimony sufficiently indicates that BWSC breached this standard of care by failing to verify the designs
With respect to the revised foundation designs of May of 2007, this Court agrees with Glenn Construction that the standard of care and alleged breach thereof at issue here does not require expert testimony. See e.g., Dews v. Mobile Infirmary Ass'n, 659 So.2d 61, 63 (Ala.1995) (holding that there is an exception to the general rule requiring expert testimony in medical malpractice cases where "the lack of care is so apparent as to be within the ken of the average layman") (citations omitted); see also Aetna Ins. Co. v. Hellmuth, Obata, & Kassabaum, Inc., 392 F.2d 472, 478 (8th Cir.1968) (holding, under a similar requirement for expert testimony, that "there are certain duties patently required of the architect that are within the common knowledge and experience of laymen serving as jurors" and that expert testimony is "not necessary in passing on commonplace factual situations that the ordinary jury laymen can readily grasp and understand"); Milton J. Womack, Inc. v. House of Representatives, 509 So.2d 62, 65-66 (La.Ct.App. 1987).
Here, the evidence establishes that BWSC was solely responsible for the foundation design and that the revised drawings provided to Glenn Construction were not done to scale such that the location of the reinforcement bars could be seen to fit properly. A reasonable jury could find that the revised foundation designs were impossible to do in the space provided, as Ashley testified, and that BWSC failed to exercise reasonable care when it provided Glenn Construction with these illustrative drawings. Cf. Milton, 509 So.2d at 67 (holding that an architect's failure "to take reasonable steps to determine the location of structural elements" did not require expert testimony to establish the standard of care and breach thereof). However, the Court finds that there is insufficient evidence to establish that BWSC acted with reckless indifference when it issued the revised designs for the foundation in May of 2007. Thus, Glenn Construction has presented sufficient evidence of a negligence claim as to the revised foundation designs, and BWSC's motion for summary judgment, (Doc. # 49), is due to be DENIED as to this claim.
Furthermore, Ashley testified that it is generally the engineer's responsibility "to determine what to do when there is a conflict or congestion issue between the reinforcement bars and other material in a
Additionally, with respect to the posting of obsolete drawings on the website, this Court finds that it is obvious that the standard of care in this situation involves the exercise of ordinary care in posting the correct drawings and that the failure to do so would be an obvious breach of that duty. Thus, Glenn Construction has presented sufficient evidence of a negligence claim regarding the posting of obsolete drawings. Watson, 559 So.2d at 173 ("[I]n cases dealing with an alleged breach of a duty by ... [a] professional, unless the breach is so obvious that any reasonable person would see it, then expert testimony is necessary to establish the alleged breach.") (emphasis added). Therefore, BWSC's motion for summary judgment, (Doc. # 49), is due to be DENIED as to this negligence claim.
Similarly, this Court finds that the standard of care for Glenn Construction's negligent supervision claim does not require expert testimony. See Jaeger v. Henningson, Durham & Richardson, Inc., 714 F.2d 773, 776 (8th Cir.1983) (finding a distinction between negligent supervision by an architect and negligence in preparing plans and holding that the former falls within the "common knowledge" exception to the rule requiring expert testimony); see also Edwards v. Hyundai Motor Mfg. Ala., LLC, 603 F.Supp.2d 1336, 1357 (M.D.Ala.2009) (Thompson, J.) (holding that a negligent supervision claim exists where (1) an employee committed an underlying tort, (2) the employer had actual notice or would have gained such notice if it had exercised reasonable care, and (3) the employer "failed to respond ... adequately") (emphasis added). Thus, BWSC's motion for summary judgment, (Doc. # 49), is due to be DENIED as to the negligent supervision claim.
Finally, with respect to any remaining negligence claims, this Court finds that Glenn Construction has failed to provide sufficient evidence as to the standard of care and breach and that such standards of care and breach are not obvious. For example, Glenn Construction's Complaint alleges claims for BWSC's alleged failures
Wantonness is defined under Alabama law as "[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others." Ala. Code § 6-11-20(b)(3); IMAC Energy, Inc. v. Tittle, 590 So.2d 163, 169 (Ala.1991) ("[W]antonness is the doing of some act or the omission to do some act with reckless indifference that such act or omission will likely or probably result in injury."); accord Blizzard v. Food Giant Supermarkets, Inc., 196 F.Supp.2d 1202, 1208 (M.D.Ala.2002) (Albritton, J.) (citations omitted). Under Alabama law, wantonness is qualitatively different from negligence. See Tolbert v. Tolbert, 903 So.2d 103, 115 (Ala.2004) ("Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability."). Indeed, Alabama law recognizes that "a jury may find a defendant wanton without finding the defendant negligent." Sparks v. Ala. Power Co., 679 So.2d 678, 682 (Ala.1996). BWSC's sole argument with respect to the wantonness claims is that Glenn Construction has failed to put forth expert evidence as to the professional standard of care. However, all of the cases cited to by BWSC require expert testimony in professional negligence claims. Indeed, this Court cannot find any case applying the expert testimony requirement for negligence claims to wantonness claims. Because wantonness is qualitatively different from negligence and because a jury may find wantonness without finding negligence, BWSC has not proven that it is entitled to judgment as a matter of law — i.e. it has not proven that Glenn Construction must establish a standard of care by expert testimony to prevail on the wantonness claims. Thus, summary judgment is due to be DENIED as to the wantonness claims.
Glenn Construction's seeks to supplement its response with the internal drawings referenced in the July 23, 2007 emails between BWSC employees as well as a second affidavit from Wolfe discussing these internal drawings. Glenn Construction contends that the internal drawings "demonstrate, unequivocally, the exact inference Glenn Construction argued their absence would have created, i.e., that BWSC attempted to prepare to-scale drawings but halted the process when it became obvious that they could not fit all the specified steel into the pedestals as drawn and that BWSC suppressed this information from, apparently, both Bell Aero and Glenn Construction." (Doc. # 78, at 5). BWSC opposes this motion to supplement and moves to strike it. (Doc. # 82). Bell Aero has also joined in BWSC's opposition and motion to strike. (Doc. # 84).
However, this Court has already determined that Glenn Construction failed to properly plead a fraudulent suppression claim based on these internal drawings. See infra, at 27 n.15. Furthermore, Glenn Construction provided other evidence — i.e.
Bell Aero filed its first motion for summary judgment on November 9, 2010. (Doc. # 32). The motion's factual basis stemmed from Bell Aero's requests for admissions, which Glenn Construction had not responded to in time. Thus, Bell Aero argued that they were deemed admitted and, therefore, demonstrated that Glenn Construction failed to satisfy express conditions precedent to receipt of final payment. On November 12, 2010, Glenn Construction filed a motion to withdraw or amend the responses to these requests for admissions. (Doc. # 37). On November 30, 2010, Glenn Construction's motion was granted because Glenn Construction had not received the requests for admissions. (Doc. # 43). Thus, the requests for admission are no longer deemed admitted by operation of law, and Bell Aero's motion for summary judgment based upon those requests for admissions, (Doc. # 54), is due to be DENIED as MOOT.
Bell Aero filed its alternative motion for summary judgment on January 14, 2011, (Doc. # 54). One main dispute with respect to Glenn Construction's claims against Bell Aero is whether Bell Aero is responsible for BWSC's actions based on agency law or the theory of respondeat superior. Glenn Construction argues that Bell Aero is responsible — in tort and on the breach-of-contract claims — for BWSC's actions based on the theory that BWSC was Bell Aero's agent. Bell Aero disagrees. Before considering the specific tort and breach-of-contract claims, this Court will first resolve the issue of the relationship between Bell Aero and BWSC.
The parties dispute whether Bell Aero's supposed liability for the actions of BWSC stems from general agency principles or from the more specific principle of respondeat superior. Glenn Construction argues that it need only establish that BWSC is Bell Aero's agent. Bell Aero, on the other hand, contends that Glenn Construction must satisfy the doctrine of respondeat superior. Under either test, Glenn Construction bears the burden of establishing the appropriate relationship. See Glass v. Southern Wrecker Sales, 990 F.Supp. 1344, 1352 (M.D.Ala.1998) (Albritton, J.) (agency relationship) (citing Wood v. Shell Oil Co., 495 So.2d 1034, 1035 (Ala.
With respect to the existence of an agency relationship, this district has explained that
Id.
Here, Glenn Construction relies heavily upon the Alabama Supreme Court case of Berkel & Company Contractors, Inc. v. Providence Hospital, 454 So.2d 496 (Ala. 1984). (Doc. # 66, at 40, 55). In Berkel, a subcontractor of the general contractor sued the owner and architect for claims arising out of a construction project. Id. at 498. In a footnote, the Berkel court discussed the issue of whether the architect was an agent of the owner:
454 So.2d at 502 n. 3.
Whatever may be the "traditional" owner-architect-general contractor relationship referred to in Berkel, the Alabama Supreme Court subsequently made clear in Collins Company v. Decatur that the issue of agency between the engineer and the owner on a construction project is one that must be based "upon the peculiar facts" of each case. 533 So.2d 1127, 1132 (1988). Indeed, in Collins, the owner had "entered into a contract by which [the engineer] was to provide general engineering supervision, to draw plans and specifications, to prepare the project bid and construction documents, and to assist [the owner] in awarding the construction contract." Id. Under this agreement, the owner only "retained authority to change construction specifications." Id. Thus, the Alabama Supreme Court specifically found that the engineer was not the owner's agent, but rather an independent contractor, because the owner "gave [the engineer] full authority to supervise, manage, and inspect the construction" and only "retained ... the right to sign orders that materially changed construction specifications." Id. at 1132. As the Collins case illustrates, the issue of agency is a peculiar to the facts of each case and does not automatically occur simply because of an owner-engineer-general contractor relationship. Id. Such a finding comports with general Alabama agency law which holds that "[w]hen a defendant's liability is to be based on agency," agency may not be presumed; ... the party asserting agency has the burden of presenting [sufficient] evidence of the alleged agency. see also John Deere, 883 So.2d at 178 (emphasis added).
Glenn Construction also points to several portions of the Contract as evidence of the existence of an agency relationship between Bell Aero and BWSC. Glenn Construction initially points to the fact that the Contract describes BWSC as Bell Aero's "representative" on the Project during construction. (Doc. # 57 Ex. 1, General Conditions § 9.01). However, under Alabama law, "agency is to be determined by the facts and not by how the parties characterize the relationship." Anglin v. Household Retail Servs., 17 F.Supp.2d 1251, 1255 (M.D.Ala.1998) (Albritton, J.) (noting also that the "key ... is that there must be an indicia of control"). Glenn Construction further points to the following specific duties of BWSC while acting as Bell Aero's "representative" under the Contract:
(Doc. # 66, at 39). Regarding the fact that Bell Aero was to communicate to Glenn Construction through BWSC under § 8.01 of the Contract, merely acting as an intermediary
Furthermore there is absolutely no evidence before this Court which demonstrates that Bell Aero had any control over when and how BWSC went about its duties as the engineer on the Project — whether it be issuing field orders or rendering decisions on claims. The Contract gave BWSC independent responsibilities over which neither party had control. For example, BWSC was to make site visits whenever it deemed them to be necessary. (Doc. # 57 Ex. 1, General Conditions § 9.02(A)). Similarly, BWSC was to issue clarifications or interpretations of the Contract as it deemed them to be necessary. Bell Aero had no right to control when or how BWSC made such site visits or issued such clarifications. (Id. § 9.04). BWSC also had the power to independently authorize minor variations in the Project and to independently make decisions as to recommending change orders. (Id. §§ 9.05, 10.03). Finally, BWSC was to act as an impartial decisionmaker with respect to claims — i.e. neither Bell Aero nor Glenn Construction had the right to control how BWSC decided the claim at issue. (Id. § 9.09(B)). Indeed, BWSC's actions regarding clarifications in the Contract, authorizations of minor variations, recommendations of change orders, and decisions on claims were to be binding on both parties.
In sum, neither Glenn Construction nor Bell Aero had the right to control how BWSC performed its engineering responsibilities. Indeed, this Court finds the instant action to be analogous to Collins whereby an engineer was deemed not to be the agent of the owner when the owner "gave [the engineer] full authority to supervise, manage, and inspect the construction." 533 So.2d at 1132; see also Fisher v. Comer Plantation, Inc., 772 So.2d 455, 464 (Ala.2000) (holding that a real estate appraiser was acting as an independent contractor when it made its appraisal because neither the property owner nor the real-estate brokerage firm "retained the right to direct the manner in which [the appraiser] prepared the appraisal"). As there is no evidence before this Court that Bell Aero had the right to control BWSC on the Project, this Court holds that BWSC was not Bell Aero's agent or servant.
Bell Aero argues, and this Court agrees, that Glenn Construction's Complaint failed to allege sufficient facts to provide notice of any independent tort claims against Bell Aero for fraud, intentional interference with contractual relations, and wantonness. As a plaintiff may not raise new claims on summary judgment, see Gilmour, 382 F.3d at 1314, Bell Aero's alternative motion for summary judgment, (Doc. # 54), is due to be granted as to these claims. Additionally, even assuming that such claims were sufficiently plead in the Complaint, there is no evidence on the record sufficient to establish prima facie cases for fraud, intentional interference with contractual relations, and wantonness against Bell Aero based solely upon Bell Aero's own actions. For this additional reason, Bell Aero's alternative
In its response, Glenn Construction contends that it has alleged independent negligence claims against Bell Aero — namely, that Bell Aero "fail[ed] to reign [sic] in [its] architect and exercise some modicum of control over the Project and the subsequent claims process" and that "Bell Aero negligently relied on BWSC's determination of Glenn Construction's claims when BWSC was inherently conflicted during this process (i.e. Glenn Construction's claims required BWSC to admit wrongdoing)." (Doc. # 66, at 55). Bell Aero makes several arguments applicable to this claim: (1) that Glenn Construction did not plead negligence against Bell Aero; (2) that Bell Aero abandoned these claims; and (3) that these claims can only be brought as breach-of-contract claims — i.e. that they are ex contractu.
Bell Aero initially contends that the Complaint does not state any negligence claims against it. This Court disagrees. Count 1 is specifically brought against both Defendants and alleges negligence claims as well as wantonness and breach-of-contract claims. Futhermore, this Court is satisfied that it has sufficiently pled these negligence claims. (See Doc. # 1, at 43 ¶ 217(g) (stating that Defendants are liable for "[r]equiring Glenn Construction to process claims for defective plans and poor supervision of BWSC through BWSC, an entity not a disinterested party in the dispute thereby delaying resolution of the claims of Glenn Construction"), 46 ¶ 217(q) (stating that Defendants are liable for "[f]ailing to supervise and/or control employees of BWSC so as to cause or allow such employees to wrongfully cause injury to Glenn Construction by the acts described herein")).
Bell Aero also claims that Glenn Construction abandoned whatever tort claims it pled against Bell Aero during the course of this litigation. Bell Aero points to its Motion to Dismiss whereby it moved for dismissal of the Complaint against it and addressed only three types of claims: (1) the breach-of-contract claims; (2) the claims for open account; and (3) the claims for work and labor done. (Doc. # 7). Similarly, Bell Aero points to its first summary judgment motion wherein it stated that the "sole remaining claim against Bell Aero is for breach of contract." (Doc. # 32, at 1; Doc. # 33, at 2). In its responses to both these motions, Glenn Construction addresses Bell Aero's arguments on the breach-of-contract claims and fails to assert that it has alleged tort claims against Bell Aero.
However, the cases cited to by Bell Aero are not factually analogous to the instant case. For example, in Crayton v. Valued Services of Alabama, LLC, the plaintiff was deemed to have abandoned particular claims pled in the Complaint where her response to summary judgment "fail[ed] to address [the] many arguments with respect to the perceived infirmities" in those claims. 737 F.Supp.2d 1320, 1331 (M.D.Ala.2010) (Capel, M.J.). Here, the earlier motions to dismiss and motion for summary judgment made no arguments whatsoever to which Glenn Construction could respond. Here, Bell Aero asks this Court to hold properly-pled claims abandoned where the plaintiff fails to recognize a single sentence stating those claims do not exist or fails to notice that the defendant seeks dismissal of the whole complaint against it and only argues the breach-of-contract claim. This Court finds such an argument to be unpersuasive. Cf. In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir.2003) (considering a motion to set aside a default judgment and stating that there "is a strong policy for determining cases on their merits"); 5 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1471 (2d ed. 1990) (stating that one of the central purposes of the Federal Rules of Civil Procedure "is to provide maximum opportunity for each claim to be decided on its merits rather than on procedural technicalities").
Under Alabama law, there is a distinction between nonfeasance and misfeasance in the performance of a contract. Nonfeasance — i.e. the failure to do what one has promised to do — carries no tort liability absent a duty to act apart from the promise made; however, misfeasance or negligent affirmative conduct in the performance of a promise can subject an actor to both tort and contract liability. Morgan v. S. Cent. Bell Tel. Co., 466 So.2d 107, 114 (Ala.1985). (citing C & C Prods. Inc. v. Premier Indus. Corp., 290 Ala. 179, 186, 275 So.2d 124 (Ala.1972); Garig v. E. End Mem'l Hosp., 279 Ala. 118, 182 So.2d 852 (Ala.1966)). As the Alabama Supreme
815 So.2d 558, 563 (Ala.2001);
Here, nothing in the Contract imposes upon Bell Aero the duty to control BWSC or to exercise independent judgment as to the claims process. The Court notes that this finding may appear to conflict with its earlier holding that Bell Aero had no right to control BWSC's performance of its duties under the Contract. However, even though Bell Aero had no right to control BWSC's performance of its engineering duties for agency or respondeat superior purposes, it may be that Bell Aero had a duty to Glenn Construction to remove BWSC as the engineer if BWSC could no longer act impartially.
Furthermore, Bell Aero made the argument regarding lack of right to control BWSC's performance solely in regards to whether an agency or master-servant relationship existed between the parties for purposes of holding Bell Aero responsible for BWSC's actions. Whether Bell Aero had an independent non-contractual duty to Glenn Construction is a separate issue that Glenn Construction will need to establish at trial. See Morgan, 466 So.2d at 114 (noting that the three primary considerations are "(1) the nature of the defendant's activity; (2) the relationship between the parties; and (3) the type of injury or harm threatened"). There is no burden upon a district court to distill every potential argument that could be made based upon the materials before it on summary judgment; the onus is in the parties to formulate arguments. See, e.g., Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995); Blue Cross & Blue Shield of Ala. v. Weitz, 913 F.2d 1544, 1550 (11th Cir.1990); Chase v. Kawasaki Motors Corp., U.S.A, 140 F.Supp.2d 1280, 1286 (M.D.Ala.2001) (Albritton, J.). As such, Glenn Construction may properly bring these claims in tort
The remaining independent claim that Glenn Construction brings against Bell Aero is for breach of contract in failing to make final payment. Under Alabama law, a plaintiff must establish four elements for a breach-of-contract claim: "(1) a valid contract binding the parties; (2) the plaintiff's performance under the contract; (3) the defendant's nonperformance; and (4) resulting damages." Cook's Pest Control, Inc. v. Rebar, 28 So.3d 716, 728 (Ala.2009) (citations omitted); accord Claybrook v. Cent. United Life Ins. Co., 387 F.Supp.2d 1199, 1204 (M.D.Ala.2005) (Thompson, J.). Bell Aero contends that Glenn Construction has failed to present sufficient evidence its own performance under the Contract and of Bell Aero's nonperformance.
Bell Aero contends that Glenn Construction has not established its own performance under the Contract because it used unlicensed subcontractors, failed to satisfy express conditions precedent, and failed to abide by the mandatory dispute resolution procedures of the Contract.
The parties do not dispute that two of Glenn Construction's subcontractors — Skipper Construction and Team Building Construction — were unlicensed and in violation of Alabama law. See Alabama General Contractor's Practice Act ("AGCPA"). Ala.Code § 34-8-1, et seq. Under the Contract, Glenn Construction was required to "comply with all Laws and Regulations applicable to the performance of the Work." (Doc. # 57 Ex. 1, General Conditions § 6.09(A)). Glenn Construction was also "fully responsible ... for all acts and omissions of the Subcontractors." (Id. § 6.06(C)). Because Glenn Construction's obligations under the contract were "absolute," (id. § 6.19(B)), Bell Aero contends that Glenn Construction breached the Contract by employing unlicensed subcontractors and that this breach precludes Glenn Construction's contract claims against Bell Aero.
However, this Court finds that there is a genuine issue of fact as to whether Glenn Construction substantially performed its promise to comply with all laws and regulations. First, Glenn Construction has presented evidence that Team Building "did little or no work" on the Project as Glenn Construction was reviewing his credentials. The AGCPA only requires subcontractors to be licensed
Bell Aero also points to several express conditions precedent to final payment which are independent of BWSC's failure to recommend final payment. (Doc. # 55, at 16) In particular, Bell Aero points out that Glenn Construction must provide (1) all documentation called for by the Contract Documents, (Id. § 14.07(A)(2)(i)), (2) consent of the surety to final payment, (Id. § 14.07(A)(2)(ii)), and (3) either lien waivers from the subcontractors or an all-bills-paid affidavit from Glenn Construction. (Id. § 14.07(A)(2)(iii), (3)). This Court finds that there is a genuine issue of material fact as to whether Glenn Construction provided all of the required documents. That two of Glenn Construction's subcontractors filed liens against Bell Aero and that one subcontractor made a claim against the surety suggests that these documents were not provided. However, the mere fact that one files a lawsuit does not necessarily mean they have a valid claim — i.e. the subcontractors could sign lien waivers and still file suit, although they may not be actually entitled to prevail. Furthermore, Wolfe testified in his deposition that Glenn Construction had obtained lied waivers from its subcontractors as well as consent of the surety and had provided all required documentation. Finally, that Glenn Construction still owed money to some subcontractors is not dispositive of whether they signed lien waivers because one can sign a lien waiver when one would otherwise have a valid lien. See Marx Assocs., Ltd. v. Emigrant Sav. Bank, 703 F.2d 1361, 1369 (11th Cir.1983) ("Under Alabama law, waiver requires the intentional relinquishment of a known right.") (emphasis added).
As for the all-bills-paid affidavit, the Court notes that it is undisputed that Glenn Construction never provided such a
Bell Aero contends that its nonperformance cannot be established because "the only event which could trigger any obligation requiring Bell Aero to make any payment" to Glenn Construction is a recommendation by BWSC. (Doc. # 55, at 17). Bell Aero contends that its obligation to make final payment never arose for several reasons. First, it argues that the condition precedent is not excused because Glenn Construction has failed to put forward evidence of the professional standard of care for engineers. Additionally, Bell Aero contends that Glenn Construction's failure to abide by the mandatory dispute resolution procedures in the Contract precludes a finding of bad faith or fraud on the part of BWSC and that the decision as to the claims is therefore binding under the Contract.
As previously stated, the expert testimony requirement for professional standards of care has only been applied on professional negligence claims, as opposed the to allegations of bad faith or fraud with respect to BWSC's denial of Glenn Construction's claims and its refusal to certify final payment. Thus, even without finding negligence, a reasonable jury could find that BWSC acted in bad faith or fraudulently in denying the claims and refusing to certify final payment. See Bd. of Water & Sewer Comm'rs v. Bill Harbert Constr. Co., 870 So.2d 699, 708 (Ala.2003) ("A report known by [an independent third-party referee] to be false, working substantial injury to a party relying thereon, is a
Bell Aero contends that Glenn Construction failed to abide by the dispute resolution procedures in the Contract in two ways. First, it contends that Glenn Construction failure to provide sufficient supporting data for its claims precludes a finding of bad faith or fraud on the part of BWSC. While it appears that the Contract requires specific documentation for an increase in the Contract price, it does not appear to require the same specificity with respect to an increase in Contract time. Compare Doc. # 57 Ex. 1, General Conditions § 12.01(B)(3) (explaining that changes to the Contract price where the parties do not agree on a lump sum will be made based upon the cost of the work as determined under § 11.01) and 11.01(A)-(B) (stating the specific items that are included and excluded in the cost of the work) with § 12.02(B) (explaining that changes to the Contract time are determined according to § 12) and § 12.05 (stating that the contractor is entitled to "an amount equal to the time lost due to... delay" where the delay is beyond the control of the owner and the contractor). Thus, even if Glenn Construction is not entitled to "an increase in the amount of any potential Final Payment," (Doc. # 73, at 3), Bell Aero has not shown that Glenn Construction failed to submit a proper claim for a further increase in the Contract time such that its alleged final completion of the Project would be within the Contract time.
Second, Bell Aero argues that Glenn Construction did not challenge BWSC's decision regarding its claims for increases in price and time within the 60-day period called for in the Contract. Bell Aero contends that it is now "undisputed that the decision was rendered and emailed to [Wolfe's] correct email address on January 12, 2009." (Doc. # 73, at 34). In support of this, Bell Aero relies upon the presumption of receipt and argues that Glenn Construction is presumed to have received BWSC's decision on January 12, 2009. Alabama courts recognize "a rebuttable presumption exists that a letter, mailed with postage prepaid and properly addressed was received in due course by the addressee." Davis v. Ala. Dep't of Indus. Rel'ns, 641 So.2d 810, 812 (Ala.Civ. App.1994). Bell Aero seeks to extend this rebuttable presumption beyond stamped and properly addressed letters to emails by relying upon an Eighth Circuit case. (Doc. # 73, at 34 n. 8) (citing Am. Boat Co., Inc. v. Unknown Sunken Barge, 418 F.3d 910, 914 (8th Cir.2005)). However, Bell Aero has presented no evidence that this is the rule of law in Alabama courts. Furthermore, even if the email is presumed received, the presumption would be a rebuttable one. Davis, 641 So.2d at 812. Under Alabama law, an alleged recipient's
For the foregoing reasons, it is hereby ORDERED that
(Id. § 1.01(49)).
Here, Glenn Construction only argues that there was an actual agency relationship between Bell Aero and BWSC. (Doc. # 66, at 40) ("[U]nder agency principles, `an express agency is an actual agency created as a result of the oral or written agreement of the parties, and an implied agency is also an actual agency, the existence of which as a fact is proved by deductions or inferences form the other facts and circumstances of the particular case, including the words and conduct of the parties.'") (emphasis added) (quoting Fisher v. Comer Plantation, Inc., 772 So.2d 455, 465 (Ala.2000)). However, even if Glenn Construction hard argued apparent authority, this Court finds that there is no evidence on the record that Bell Aero ever acted as if it had the right to control BWSC's performance.
Smith did not even involve tort claims, but rather a contract claim for specific performance of an oral promise that was barred by the Statute of Frauds. 466 So.2d at 924. Similarly, Bruce, Holman, and Hurst concerned situations where the plaintiff sought to bring tort claims based upon oral agreements that were barred by the Statute of Frauds. Bruce, 854 So.2d at 57-58; Holman, 852 So.2d at 699-700; Hurst, 981 So.2d at 1155-56. Here, there is no dispute as to the existence of the Contract, which is not barred by the Statute of Frauds. In Bad Toys, unlike here, the plaintiff could not bring tort claims because they were actually for nonfeasance under a contract — i.e. it was a contractual claim that could not be brought in tort. 958 So.2d at 859. Finally, in White, the plaintiff was an unlicensed subcontractor who sought to recover in tort for the work and labor done under a contract that was void. White, 718 So.2d at 90. Here, although it is undisputed that Glenn Construction employed unlicensed subcontractors, the Court finds that this does not render the Contract with Bell Aero void or unenforceable. See Med Plus Props. v. Colcock Constr. Grp., 628 So.2d 370, 374-75 (Ala. 1993) (affirming a jury verdict for a licensed general contractor against the owner because, in part, the contract between the parties was enforceable where the licensed contractor worked with an unlicensed contractor because a reasonable jury could have found that there was no scheme to circumvent the licensing requirements).
Wilkinson v. Moseley, 18 Ala. 288 (1850); see also Garig v. E. End Mem'l Hosp., 279 Ala. 118, 182 So.2d 852 (Ala.1966).
Alternatively, it may be that the amounts owed to these subcontractors were incurred after the last progress payment — i.e. that Glenn Construction had paid all debts up to the last progress payment and that these debts had accrued since then. Bell Aero has not pointed to any evidence that establishes when the previous progress payment occurred, when these debts to the subcontractors accrued, or whether the progress payments were sufficient to cover the costs of the allegedly additional work.
