Robert Wilson v. C-Sharpe Company, LLC; Dobson Sheet Metal & Roofing, Inc.; and Duro-Last, Inc.

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Rel: 09/25/2009 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may be made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM, 2009 2080460 Robert Wilson v. C-Sharpe Company, LLC; Dobson Sheet Metal & Roofing, Inc.; and Duro-Last, Inc. Appeal from Baldwin C i r c u i t Court (CV-06-900176) THOMPSON, P r e s i d i n g Judge. Robert the Baldwin Wilson Circuit ("C-Sharpe"), appeals Court from summary i n favor Dobson Sheet M e t a l judgments entered by o f C - S h a r p e Company, L L C & Roofing, I n c . ("Dobson"), 2080460 and Duro-Last, herein, we affirm Wilson necessitating roof. Association") to perform Breakers"), located repairs with installation of a Dobson new N o v e m b e r 3, located on against C-Sharpe, the in negligently Breakers Shores. work. Breakers The Breakers' Association on roof C-Sharpe March on The 10, ("the C-Sharpe entered 2005, Breakers using In into for a roofing Duro-Last. whose floor of Breakers, Dobson, which occasions The and he Duro-Last alleged conducting alleged by partially failing that a the condominium an they at The r e m o v i n g The to prepare "the had acted Breakers. Breakers' two roof i t f o r inclement weather. the defendants 2 i s action (collectively, that repairs filed unit he a l l e g e d t h a t t h e y h a d d a m a g e d h i s u n i t o n negligently also The things, Wilson, while He other 2006, top defendants") and of stated remand. i n Gulf Condominium repair system manufactured by separate and thereafter entered into a contract with the needed Specifically, 83 reasons c a u s e d d a m a g e t o The t o , among Breakers subcontract On Ivan the i n part, unit Hurricane The reverse For condominium ("The 2004, ("Duro-Last"). i n part, owns Condominiums September Inc. had negligently caused 2080460 holes t o be p u n c h e d , hammered, o r d r i l l e d i n t o his condominium u n i t , and furnishings. negligence September to assert a party 29, to any rights have 2008, alleged contract pointed rule, out standing between that motion had and party. Dobson h i s claims t o which the Association. Moreover, i t argued, the had bound argued developer that The that, Wilson a d i d not because, constituted and not Wilson, Breakers as to assert the o f The B r e a k e r s the Declaration of in his him t o sue of negligence the Association, standing admitted, Dobson argued for a b e c a u s e h e was n o t i t and Wilson behalf, to assert declarations"), he contract"). a a l i t i g a n t does n o t have s t a n d i n g of a t h i r d by interior defendants' that the A s s o c i a t i o n had not authorized a common a r e a filed the filed of contract p u r s u a n t t o Alabama law, t h e roof title. that ("the a l l e g e d Dobson of breach the Association's general to the unit's I t argued t h a t W i l s o n d i d n o t have h i s claim deposition, on he and t h e defendants" summary j u d g m e n t . Dobson Finally, damage of c o n s t i t u t e d a breach of "the c o n t r a c t between [ t h e Association] On causing the c e i l i n g of in held Condominium 1980 ("the t o which Wilson had admitted i n h i s d e p o s i t i o n himself, provided 3 that the Association "shall 2080460 maintain, repair and replace a t i t s expense u n i t w h i c h a r e common e l e m e n t s , "[a]ny be incidental promptly damage c a u s e d repaired including" to a unit a t t h e expense Thus, Dobson argued, because repair o f common e l e m e n t s w h i c h a l l portions "[i]t the roof, and that by such work of the was of a shall Association." the Association's c a u s e d t h e damages a l l e g e d b y W i l s o n i n h i s C o m p l a i n t , " W i l s o n ' s c a u s e o f a c t i o n was a g a i n s t the Association Dobson. On indicating judgment, and Wilson October that summary assert 2008, i t was j o i n i n g and i t adopted Dobson h a d f i l e d On 6, d i d n o t have October C-Sharpe Dobson's m o t i o n a l l t h e arguments 7, 2008, Duro-Last I t argued that a breach-of-contractclaim a Wilson against Last. Duro-Last argued pursue negligence a r g u e d by Dobson and against document f o r a summary a lacked that motion. motion for a standing to i t because neither a contract with t h a t W i l s o n d i dn o t have claims against and evidence filed he n o r t h e A s s o c i a t i o n h a d e n t e r e d i n t o defendants' filed i n s u p p o r t o f i t s summary-judgment judgment. On O c t o b e r recourse Duro- standing to i t f o r t h e same reasons C-Sharpe. 17, 2008, W i l s o n f i l e d summary-judgment m o t i o n s . 4 a response t o a l lthree Wilson argued that C- 2080460 Sharpe's motion, was joining deficient consisting only i n the motion because requirements defendants, of Rule Wilson breach-of-contract third-party regard material argued and fact as A l a . R. according t o h i m , h e was a between the the or evidence with as a t h i r d - p a r t y b e n e f i c i a r y o f that to offer that t o whether that asserted an argument there he had was a such genuine issue standing. Wilson the declarations provide condominium u n i t caused by t h e defendants' negligence neither the defendants nor deprived claims against On granting October liable from f o r the that the to h i s acts held of damage exonerated be a l l the to pursue h i s contract He to filing that argued could the As he h a d s t a n d i n g C-Sharpe procedurally with C i v . P. defendants. the fact was comply claim because, the a n d he Association by Dobson, not argued that had f a i l e d that did 56, to h i s standing contract, filed beneficiary to the alleged Association defendants i t of a statement that liability him of standing for their to bring his negligent negligence them. 21, 2008, C-Sharpe's motion the t r i a l to summary j u d g m e n t , a n d i t e n t e r e d 5 join court entered Dobson's an motion order for a summary j u d g m e n t s i n f a v o r o f 2080460 all the defendants. Wilson f i l e d a timely notice of appeal t o t h e supreme c o u r t , w h i c h transferred h i s appeal t o this pursuant A l a . Code 1975. Our t o § 12-2-7(6), review Hollingsworth (Ala. of v. C i t y a summary o f Rainbow judgment City, i s de court novo. 826 So. 2 d 787, 789 2001). "'In r e v i e w i n g the d i s p o s i t i o n o f a motion f o r s u m m a r y j u d g m e n t , "we u t i l i z e t h e same s t a n d a r d a s the t r i a l court i n determining whether the evidence b e f o r e [ i t ] made o u t a g e n u i n e i s s u e o f m a t e r i a l fact," B u s s e y v. John Deere Co., 531 So. 2 d 860, 862 ( A l a . 1988), and whether t h e movant was " e n t i t l e d t o a judgment as a matter o f law." Wright v . W r i g h t , 654 S o . 2 d 5 4 2 ( A l a . 1 9 9 5 ) ; R u l e 5 6 ( c ) , A l a . R. C i v . P. When t h e m o v a n t m a k e s a p r i m a f a c i e s h o w i n g t h a t t h e r e i s no g e n u i n e i s s u e o f m a t e r i a l f a c t , t h e burden s h i f t s t o t h e nonmovant t o p r e s e n t s u b s t a n t i a l e v i d e n c e c r e a t i n g s u c h an i s s u e . Bass v. S o u t h T r u s t Bank o f B a l d w i n County, 538 S o . 2 d 794, 797-98 ( A l a . 1 9 8 9 ) . Evidence i s " s u b s t a n t i a l " if i t i s of "such weight and q u a l i t y that fair-minded persons i n the exercise of impartial judgment can r e a s o n a b l y i n f e r t h e e x i s t e n c e o f t h e f a c t s o u g h t t o be p r o v e d . " W r i g h t , 654 S o . 2 d a t 543 ( q u o t i n g W e s t v . F o u n d e r s L i f e A s s u r a n c e C o . o f F l o r i d a , 547 S o . 2 d 8 7 0 , 8 7 1 ( A l a . 1 9 8 9 ) ) . Our review i s f u r t h e r subject t o the caveat that t h i s Court must review the record i n a light most f a v o r a b l e t o t h e nonmovant a n d must r e s o l v e a l l r e a s o n a b l e doubts a g a i n s t t h e movant. Wilma Corp. v. F l e m i n g F o o d s o f A l a b a m a , I n c . , 613 S o . 2 d 359 (Ala. 1 9 9 3 ) ; H a n n e r s v . B a l f o u r G u t h r i e , I n c . , 564 So. 2 d 4 1 2 , 413 ( A l a . 1 9 9 0 ) . ' " 6 2080460 Id. ( q u o t i n g Hobson v. A m e r i c a n C a s t 341, 344 (Ala. Wilson entered 1997)). contends summary I r o n P i p e C o . , 690 S o . 2 d 1 that judgments the trial i n favor court erred of the defendants when i t on h i s In i t s a p p e l l a t e b r i e f , Duro-Last notes t h a t the i s s u e of standing r e l a t e s t o a court's subject-matter j u r i s d i c t i o n a n d c a n be c h a l l e n g e d b y way o f a m o t i o n t o d i s m i s s p u r s u a n t t o R u l e 1 2 ( b ) ( 1 ) , A l a . R. C i v . P. T h u s , i t i n v i t e s t h i s c o u r t to analyze the propriety of the t r i a l court's summary judgments as t h o u g h t h e t r i a l c o u r t h a d e n t e r e d a judgment o f dismissal pursuant to that rule. We d e c l i n e t o d o s o . The s t a n d a r d t h a t a t r i a l c o u r t a p p l i e s when r e s o l v i n g a m o t i o n t o d i s m i s s f o r l a c k of s u b j e c t - m a t t e r j u r i s d i c t i o n under Rule 12(b)(1) i s d i f f e r e n t than the standard a p p l i c a b l e t o the r e s o l u t i o n o f a m o t i o n f o r a summary j u d g m e n t . Compare Ex p a r t e S a f e w a y I n s . C o . o f A l a b a m a , I n c . , 990 S o . 2 d 3 4 4 , 3 4 8 ¬ 50 ( A l a . 2 0 0 8 ) ( s e t t i n g f o r t h s t a n d a r d t r i a l c o u r t a p p l i e s i n r e s o l v i n g motion t o dismiss pursuant t o Rule 12(b)(1)) with H o l l i n g s w o r t h , 826 S o . 2 d a t 7 8 9 ( s e t t i n g f o r t h s t a n d a r d t r i a l c o u r t a p p l i e s i n r e s o l v i n g a m o t i o n f o r a summary j u d g m e n t ) . Most s i g n i f i c a n t l y f o r p r e s e n t purposes, although a trial court can, i n c e r t a i n circumstances, resolve f a c t u a l disputes when d e t e r m i n i n g w h e t h e r t o g r a n t a m o t i o n t o d i s m i s s u n d e r R u l e 1 2 ( b ) ( 1 ) , s e e E x p a r t e S a f e w a y I n s . Co. o f A l a b a m a , I n c . , 990 So. 2d a t 350, a c o u r t r e v i e w i n g a m o t i o n s e e k i n g a s u m m a r y j u d g m e n t p u r s u a n t t o R u l e 56 d o e s n o t r e s o l v e f a c t u a l i s s u e s , s e e H o l l i n g s w o r t h , 826 S o . 2 d a t 7 8 9 . 1 In the present case, the defendants sought summary judgments p u r s u a n t t o R u l e 56, n o t a d i s m i s s a l o f W i l s o n ' s a c t i o n p u r s u a n t t o R u l e 1 2 ( b ) ( 1 ) . T h e r e i s no i n d i c a t i o n t h a t the t r i a l c o u r t a p p l i e d any s t a n d a r d o t h e r than what t h e p a r t i e s urged i t t o apply, i . e . , the standard contained i n R u l e 56, when r e s o l v i n g t h e i r m o t i o n s . A s a r e s u l t , we w i l l r e v i e w t h i s c a s e u n d e r t h e s t a n d a r d a p p l i c a b l e t o summary judgments, not the standard a p p l i c a b l e t o motions t o d i s m i s s pursuant t o Rule 12(b)(1). 7 2080460 c l a i m of breach of in their summary-judgment standing not contract. to assert a party entitled to the to As motions maintain a was summary j u d g m e n t s , t h e with claim the Association. He s u b m i t any he a r g u e s , the d e f e n d a n t s d i d n o t meet t h e i r he asserts, the alleged summary-judgment m o t i o n s , the burden never shifted s u b s t a n t i a l evidence of h i s s t a n d i n g contract claim. contention on not t h a t he behalf of the asserting instead, behalf He he for was i s without on he asserting damage is that that have s t a n d i n g claim behalf he contract, Wilson's status contract. Thus, i n i t i a l burden and, as him the merit a to as result, produce breach-of- because claim he is Association; claim a of defendants' the that in that to assert that of sustained 8 to their that, alleged is the assert to pursue h i s argues Association argues, the also does not that argues evidence negating a t h i r d - p a r t y b e n e f i c i a r y of their have against defendants d i d not as supporting not c l a i m b e c a u s e he a t h i r d - p a r t y b e n e f i c i a r y of the they d i d not did a t h i r d - p a r t y b e n e f i c i a r y of seeking and Wilson breach-of-contract contract not that assertion a l l e g e d c o n t r a c t , W i l s o n a s s e r t s t h a t he alleged was defendants' a breach-of-contract d e f e n d a n t s b e c a u s e he he to the on result his own of the 2080460 defendants' breach of their alleged contract with the Association. I n P r o w e l l v. 117 from Children's ( A l a . 2006), our Ex parte supreme c o u r t General 1999), t h a t d i s c u s s e d , a party seeking H o s p i t a l of Alabama, Motors Corp., among o t h e r a summary quoted at length 769 So. 2d 949 a So. passage 903 judgment: " I n E x p a r t e G e n e r a l M o t o r s C o r p . , 769 So. 2d 903 (Ala. 1999), t h i s Court addressed t h i s very issue, stating: "'"If the burden of proof at trial i s on t h e n o n m o v a n t , the m o v a n t may s a t i s f y the Rule 56 burden of production either by 9 (Ala. t h i n g s , the burden borne "'"The manner i n w h i c h the movant's burden of proof i s met depends upon w h i c h p a r t y has the burden of proof (Justice Brennan's 'burden of persuasion') at t r i a l . I f t h e movant has the burden of proof at trial, the movant must s u p p o r t h i s motion w i t h c r e d i b l e e v i d e n c e , u s i n g any of the materials specified in Rule 56(c), [Ala.] R. Civ. P. ('pleadings, d e p o s i t i o n s , answers t o i n t e r r o g a t o r i e s , and a d m i s s i o n on file, together with the affidavits.') The m o v a n t ' s p r o o f m u s t be s u c h t h a t he w o u l d be e n t i t l e d to a d i r e c t e d v e r d i c t i f this evidence was not controverted at t r i a l . 2d by 2080460 submitting affirmative evidence t h a t n e g a t e s an e s s e n t i a l e l e m e n t in t h e nonmovant's claim, or, assuming discovery has been c o n t e m p l a t e d , by d e m o n s t r a t i n g t o the trial court that the nonmovant's evidence is insufficient to e s t a bi i s h l an essential element of the nonmovant's c l a i m . . . . " ' " ' . . . . ' " ' " T h e n o n m o v a n t may defeat a m o t i o n f o r a summary j u d g m e n t t h a t a s s e r t s t h a t t h e nonmovant h a s no e v i d e n c e t o e s t a b l i s h a n e s s e n t i a l element of h i s c l a i m by directing the trial court's attention to evidence of that e s s e n t i a l element already i n the record, that was ignored or o v e r l o o k e d b y t h e m o v a n t , o r may submit an a f f i d a v i t requesting a d d i t i o n a l time f o r discovery, i n an attempt to obtain some evidence of that essential element of the claim in accordance with Rule 56(f), [ A l a . ] R. C i v . P. "'"If t h e nonmovant cannot produce sufficient evidence to prove each element of i t s c l a i m , the movant i s entitled to a summary judgment, f o r a trial w o u l d be u s e l e s s . " ' " 7 6 9 S o . 2 d a t 909 ( q u o t i n g a n d a p p r o v i n g l a n g u a g e from J u s t i c e Houston's s p e c i a l w r i t i n g i n B e r n e r v. C a l d w e l l , 5 4 3 S o . 2 d 6 8 6 , 691 ( A l a . 1 9 8 9 ) ( H o u s t o n , 10 2080460 J., concurring the 949 specially), as a c o r r e c t s t a t e m e n t law)." So. 2d a t 127-28 added). Since (some e m p h a s i s i n o r i g i n a l ; Wilson bore the the Co. of Alabama, defendants, to Inc., obtain standing, were r e q u i r e d prove essential an breach-of-contract C-Sharpe and case that they issue of standing c l a i m by claim, So. 2d of see 344, standing parte Safeway 349 (Ala. on the that Wilson his standing Prowell, see his Ex judgments demonstrate element 949 issue entitled with regard that Wilson to a summary to Wilson's was not 2d could not his at 127. judgment facie on a party to the contract Wilson's standing, however, not been the contract. sparse, owner was roof by Wilson, his Although a fair of to on a the reading directly defendants. although not a party allegations of the condominium benefit the having unit from complaint located the to 11 the to the i n The complaint i n that alleged Breakers, on The assertion contract was alleged are i n d i c a t e s t h a t , as work done Implicit a party of the breach-of-contract that they a l l e g e d l y breached. premised of pursue to So. 2008), Dobson a t t e m p t e d t o e s t a b l i s h a p r i m a were arguing 990 claim, summary to some e m p h a s i s burden of p r o v i n g to pursue h i s breach-of-contract Ins. of the Wilson Breakers' is that between 2080460 the Association beneficiary of that Standing not a on contract thereto to Vesta that one f o r whose made, although that action Sharpe and 611, standing the contract 320 Dobson's that Wilson the on of Water So. 2d 624, contention was Association not 628 in not a party does & Sewer appropriate summary on t h i s C-Sharpe and judgment motion a party to Milam Co. law benefit a valid i s not a party therefor, the may promissor.'" Comm'rs o f (1975))). their Mobile, Thus, C- summary-judgment to their alleged contract effectively negate Wilson's to pursue h i s breach-of-contract result, i s ("'Alabama person against contract & and does n o t f u r n i s h any c o n s i d e r a t i o n A l a . 606, a v. effect H a r r i s v. Board As Ins. Corp. ( A l a . 2004) (quoting with Fire 103 been third-party being 2d 84, an motion a So. maintain 294 was contract. See the has defendants, t h i r d - p a r t y b e n e f i c i a r y of a I n c . , 901 clear the the b e n e f i c i a r y ' s a c t u a l l y contract. Constr., is as premised that and judgment in claim against their them. favor was not their summary- basis. Dobson that his breach-of-contract also Wilson contended d i d not have c l a i m on b e h a l f 12 in standing to pursue of the A s s o c i a t i o n . A 2080460 fair reading Wilson of the complaint, however, demonstrates d i dnot assert h i sbreach-of-contract that claim against the d e f e n d a n t s on b e h a l f o f t h e A s s o c i a t i o n ; i n s t e a d , he s o u g h t t o recover result with f o r t h e damage of the defendants' the Association. argument i n this entitled t o a summary the t h a t he h a d p e r s o n a l l y s u s t a i n e d as a portion breach As regard be result, judgment. o f t h e summary and that were conclude therefore entered Dobson's they that i n favor breach-of-contract i t s summary-judgment other two d e f e n d a n t s argued that Wilson breach-of-contract into We judgment argument w i t h r e g a r d t o Wilson's Last C-Sharpe contract of C- c l a i m i s due reversed. In the alleged d i d not demonstrate S h a r p e a n d Dobson on W i l s o n ' s to a of their motion, breach-of-contract d i d n o t make. d i d n o t have claim against a contract with Duro-Last standing an claim that Specifically, i tbecause the Association. made Duro- t o pursue h i s i td i d not enter I t argued that Wilson c o u l d n o t have s t a n d i n g as a t h i r d - p a r t y b e n e f i c i a r y o f a non¬ existent effectively his contract. We conclude that demonstrated a f a i l u r e of Wilson's breach-of-contract this assertion s t a n d i n g as t o c l a i m a g a i n s t Duro-Last and s h i f t e d 13 to 2080460 Wilson the standing the burden as a failed trial against 128 and summary standing i t i s due burden of proof to carry Wilson entered s u b s t a n t i a l evidence Duro-Last. pursue t o be The in a contract record favor his See that that Duro-Last as Prowell, 949 nonmovant and So. the to contends assert that the trial court his negligence claims. 2d when to his negligence provided repair any areas, s u c h as t h e provision not incidental for deprive claims that the when i t of against them Association c a u s e d by was the on standing 14 the to part seek the standing because required repair of his previously without W i l s o n argues t h a t the liability him the damage roof. such at nonmovant erred As d e f e n d a n t s a r g u e d t h a t W i l s o n was declarations to burden). noted, the pursue the claim summary j u d g m e n t s i n f a v o r o f t h e d e f e n d a n t s as t o standing does between a result, summary j u d g m e n t i s a p p r o p r i a t e to the his reflects As of of breach-of-contract affirmed. is shifted next of such evidence. judgment to (indicating that fails forth t o p r o f f e r any court's Wilson's put third-party beneficiary Association Wilson to of the to common declaration's Association recovery from the 2080460 defendants for the damage they allegedly caused him. We agree. The rely p r o v i s i o n of the declarations on w h i c h t h e defendants reads: "10.1(a). By t h e A s s o c i a t i o n . The Association s h a l l maintain, r e p a i r and r e p l a c e a t i t s e x p e n s e a l l p o r t i o n s o f a u n i t w h i c h a r e common e l e m e n t s , including without limitation: "(i) those portions contributing to the support of the building, which portions shall include, but not be limited to, the outside walls and r o o f s ( i n c l u d i n g roof r a f t e r s ) of the buildings II "Any i n c i d e n t a l damage c a u s e d t o a u n i t b y s u c h w o r k s h a l l be p r o m p t l y r e p a i r e d a t t h e e x p e n s e o f the Association." Although this provision the A s s o c i a t i o n to Wilson's repair of to damages a l l e g e d roof, not i n the otherwise unit the indemnify income, l o s t p r o f i t s , does declarations arguably requires t o r e p a i r t h e p h y s i c a l damage a l l e g e d l y condominium the Association of the by provision defendants' negligent not obligate defendants the does for the complaint and the caused the kinds ( c o m p e n s a t o r y damages, of lost l o s t b u s i n e s s o p p o r t u n i t i e s ) , and relieve the 15 defendants of liability i t for 2080460 their alleged negligence. As a r e s u l t , to demonstrate that Wilson was w i t h o u t negligence claims it summary j u d g m e n t s entered We note Wilson it, in damage Last favor as a r e s u l t 119 i t argues, his unit of Duro-Last's General Motors Corp. (Ala. 2003), affirm the t r i a l on because, court's when e n t e r i n g The basis rule o f an that that, even i f claims against summary Wilson's d i d not sustain judgment deposition any water alleged negligence. f o r the proposition when regard. v. Stokes C h e v r o l e t , that this Duro885 So. court summary j u d g m e n t i n D u r o - L a s t ' s t h a t b a s i s even though t h e t r i a l basis argues court's t o pursue h i s i n that h i s negligence the t r i a l failed court erred favor Duro-Last t o pursue indicated that cites i n their on a p p e a l , can a f f i r m Duro-Last's testimony 2d that, court standing a g a i n s t them, a n d t h e t r i a l has s t a n d i n g this the defendants can favor c o u r t d i d n o t r e l y on t h a t i t s judgment. this argument court that can a f f i r m was not raised a judgment before on t h e the court "fails in application ... where due-process c o n s t r a i n t s r e q u i r e some n o t i c e a t t h e t r i a l l e v e l , w h i c h was o m i t t e d , o f t h e b a s i s t h a t w o u l d o t h e r w i s e support an affirmance, such as ... where a summary-judgment movant has n o t a s s e r t e d b e f o r e t h e t r i a l c o u r t a f a i l u r e o f t h e n o n m o v a n t ' s e v i d e n c e on 16 trial 2080460 an e l e m e n t o f a c l a i m o r d e f e n s e a n d t h e r e f o r e h a s not shifted the burden of producing substantial evidence i n support of that element." Liberty Nat'l Life I n s . Co. v. U n i v e r s i t y of Alabama S e r v s . F o u n d . , P.C., 8 8 1 S o . 2 d 1 0 1 3 , 1 0 2 0 Health ( A l a . 2003) (citing R e c t o r v. B e t t e r Houses, I n c . , 820 S o . 2 d 7 5 , 80 ( A l a . 2001), and Sizzlin 2d Kennedy 2003)). that v. Western Because i t was negligence due Duro-Last a claims as shift to Wilson a matter Wilson allegedly negligent actions not v. of Duro-Last to offer Civ. App. 2006) Serv., 71 ( A l a . to the t r i a l o f l a w on could evidence on t h a t b a s i s . Complete Landscape So. not prove caused him i n j u r y , r e s u l t , we c a n n o t a f f i r m t h e t r i a l favor 857 d i d not assert judgment because Corp., of such court Wilson's that i t s the burden d i d injury. As a c o u r t ' s summary j u d g m e n t i n See C h o i c e Builders, Inc. I n c . , 955 S o . 2 d 4 3 7 , 4 4 1 ( A l a . ("The o t h e r a r g u m e n t s t h a t CLS r a i s e s in i t s appellee's b r i e f or i n i t s b r i e f i n support of i t s a p p l i c a t i o n for r e h e a r i n g were reason will f o r entering n o t now Based on not argued a summary consider those the at the t r i a l - c o u r t judgment level as a a g a i n s t CBI; thus we a r g u m e n t s on a p p e a l . " ) . foregoing, we affirm summary j u d g m e n t i n f a v o r o f D u r o - L a s t 17 the trial on W i l s o n ' s court's breach-of- 2080460 c o n t r a c t c l a i m ; we r e v e r s e in favor reverse Sharpe of Duro-Last the t r i a l and proceedings. on court's Dobson; and the t r i a l Wilson's summary we remand court's summary negligence judgments the judgment claims; i n favor cause of we C- for further 2 A F F I R M E D I N PART; R E V E R S E D Pittman, Bryan, I N PART; AND Thomas, a n d M o o r e , REMANDED. J J . , concur. B e c a u s e we a r e r e v e r s i n g t h e t r i a l court's summary judgments i n f a v o r o f C-Sharpe and Dobson f o r t h e r e a s o n s p r o v i d e d , we n e e d n o t a d d r e s s W i l s o n ' s c o n t e n t i o n t h a t CS h a r p e ' s j o i n d e r i n D o b s o n ' s m o t i o n f o r a s u m m a r y j u d g m e n t was procedurally defective. 2 18

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