Bristol Southside Association Inc v. Meridian Construction & Development, LLC

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BRISTOL SOUTHSIDE ASSOCIATION, )

INC., )

)

Plaintiff, )

)

v. ) Case No.: 2:18-cv-00783-JHE

)

MERIDIAN CONSTRUCTION & )

DEVELOPMENT, LLC, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER1

Through its amended complaint, Plaintiff Bristol Southside Association, Inc. (“BSA”)

asserts several claims against Defendant Meridian Construction & Development, LLC

(“Meridian”) related to the construction of a condominium development. (Doc. 31). Meridian has

now moved for summary judgment on each of those claims, contending they are all barred by

Alabama’s construction statute of repose. (Doc. 38). That motion is fully briefed, (docs. 38-1, 51

& 52), and ripe for review. For the reasons stated below, Meridian’s motion is DENIED.

Standard of Review

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Rule 56 “mandates the entry of summary judgment, after adequate

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil

Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge

conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 23.)

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time for discovery and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving

party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323.

The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to

establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks

omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

The Court must construe the evidence and all reasonable inferences arising from it in the

light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,

(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-

moving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient

competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,

283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-

moving party’s favor when that party’s version of the events is supported by insufficient evidence).

However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat

a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)

(citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere

‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be

enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911

F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

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Summary Judgment Facts

In early 2004, Bristol GP retained Meridian as the general contractor for Bristol Southside,

a planned 170-unit condominium development.2 (Doc. 31 at ¶¶ 10-11; doc. 52-1). Meridian has

since dissolved, but at the time it was a Georgia limited liability corporation licensed to operate

as a general contractor in Alabama. (Doc. 31 at ¶ 3). David C. Deriso (“Deriso”) was Meridian’s

sole member during the relevant time period. (Id.). Architecture firm Hemsley Lamkin Rachel,

Inc. (“HLR”) designed the development, and Robert Lamkin of HLR was the project architect.

(Affidavit of Robert Lamkin (doc. 51-2, “Lamkin Aff.”) at ¶ 3). Meridian retained a number of

subcontractors to assist with the project. (Id. at ¶¶ 3, 11; Affidavit of David C. Deriso (doc. 38-2,

“Deriso Aff.”) at ¶ 5). Meridian’s primary responsibility was to manage subcontractors, manage

the construction schedule, meet with the architect, and meet with the owner’s representatives.

(Deposition of David C. Deriso (doc. 51-3, “Deriso Dep.”) at 14).

Construction began sometime in 2004 and was completed in approximately October 2006.

(Doc. 31 at ¶ 12; Deriso Aff. At ¶ 4). Construction at the development site was supervised by

Meridian employees Lonnie Roberts (“Roberts,” superintendent), Leonard Ziggler (“Ziggler,”

assistant superintendent), Patrick Ward, (“Ward,” project manager), Bill Cushard, (“Cushard,”

general superintendent”), and Chris Thompson (“Thompson,” assistant project manager). (Deriso

Dep. at 15-16). Roberts and Ziggler were on site every day. (Deriso Dep. at 15). Deriso made

weekly or bi-weekly visits to the site, depending on the phase of the project. (Id. at 20-21).

2 Per the contract for the construction of Bristol Southside, Bristol GP owns Bristol

Southside. (Doc. 52-1). BSA maintains and operates Bristol Southside and has the authority to

sue on behalf of the owners. (Doc. 31 at ¶ 14).

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HLR also visited the site on a regular basis and inspected the work performed by Meridian.

(See Lamkin Aff. and attachments). After each inspection, HLR drafted a Field Report describing

discrepancies between the plans and the work performed, including defects and deficiencies to be

corrected. (See id.). HLR distributed copies of the Field Reports via email to necessary parties,

including to Meridian employees. (See, e.g., id. at 101, 106-07). HLR also met with Meridian’s

representatives to discuss construction issues and obtained their feedback on ways to correct the

issues. (See, e.g., id. at 100). Scott Black, the owner’s representative for Bristol GP during the

construction project, also met with HLR and either received Field Reports or attended construction

meetings regarding all issues identified. (Deriso Dep. at 16-17; Lamkin Aff. at 3, 5, 9, 11, 23, 27,

31, 36, 39, 48, 58, 65, 68, 74, 76, 82, 85, 93, 95, 99, 102, 106).

As constructed, the Bristol Southside condominiums are comprised of two separate

buildings. (Doc. 31 at ¶ 13). Both buildings are wood-framed, with an exterior cladding that is “a

combination of composite trim, fiber cement siding, brick veneer and three coat stucco --3/8-inch

thick scratch coat, 3/8-inch thick brown coat and approximately 1/8-inch thick finish coat.” (Id.).

In 2017, the breezeways which provide access to the doors to each unit began to collapse.

(Doc. 31 at ¶ 15). BSA investigated and determined that, among other things, water had flowed

behind the exterior claddings, the fiber cement had not been applied correctly, and the stucco was

not installed consistent with ASTM standards.3 (Id. at ¶ 16). Additionally, load bearing columns

were misaligned, causing them to fail and damage the framing. (Id. at ¶ 17).

3 “ASTM” refers to the American Society for Testing and Materials, a developer and

publisher of technical standards. ASTM International, https://www.astm.org (last accessed

November 5, 2020).

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BSA retained Licensed Home Inspector Richard Laframboise (“Laframboise”), of E-

Services, Inc., to inspect both Bristol Southside buildings. (Doc. 51 at 8; Affidavit of Richard

Laframboise (doc. 51-1, “Laframboise Aff.”) at ¶ 1). Laframboise visited the buildings on

multiple occasions in 2018 and again in 2020. (Laframboise Aff. at ¶¶ 3, 6). He observed

numerous discrepancies between the work the Field Reports stated had been performed and the

actual condition of the buildings. (Laframboise Aff. at ¶¶ 7-12). Specifically, Laframboise

pointed to the following facts:

• Field Report 5 indicated as a “continuing construction issue” on January 18, 2006:

“Waterproofing: We are still waiting for REVISED Water proofing details addressing

our specific deck, balcony and breezeway conditions. . . . Further, we need clarification

on the Tammscoat Coating as far as what level we need to do (i.e. number of coats,

lusterseal sealer on top, etc.). (Doc. 51-2 at 26). Roberts, Zigger, Ward, Cushman, and

Thompson were present for Meridian at the meeting to discuss this report. (Id. at 25).

This condition was listed as resolved in Field Report 9 on May 23, 2006, with the

notation “Waterproofing submittals have been received, with the exception of window

flashing.” (Id. at 56). Bob Miller, “JD,” and John Pierce were present for Meridian at

this meeting. (Id. at 54). Laframboise found: “My inspection of the as-built structure

determined that no Tammscoat Coating, or any other sealant, was ever applied to the

affected areas.” (Laframboise Aff. at ¶ 8.a.i.).

• Field Report 6, dated February 16, 2006, indicated as a new issue that “Thru wall

flashing at brick does not meet specifications. Per specification 7600/2.01/B, the thru-

wall flashing is to be ‘Vycor Plus Self Adhered Flashing’. The flashing being utilized

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is not self-adhered.” (Doc. 51-2 at 30). Roberts and Ziggler were present for Meridian

at this meeting. (Id. at 29). This issue was listed as resolved in Field Report 7 on

March 16, 2006, with the notation: “Grace 40mil Perm-A-Barrier is being installed.

Top of 40 mil must be behind building paper.” (Id. at 38). Deriso and Ziggler were

present for this meeting. (Id. at 36). However, Laframboise found that “My inspection

of the as-built structure indicates this was not properly done. The very limited amount

of flashing I observed was not self-adhering, or properly installed, as required by the

building plans.” (Laframboise Aff. at ¶ 9.a.i.).

• Also in Field Report 6, the report noted: “At brick, rope wicks are being installed

instead of weep holes. This is not acceptable. Clean out mortar at brick ledge and

create weep holes per 17/A-D1.2.” (Doc. 51-2 at 30). This issue persisted until Field

Report 10 on July 19, 2006 (Miller, Cushard, Ward, and Thompson present for

Meridian). (Id. at 65-67). The parties eventually settled on a plan where “full head

weeps will be installed at locations not yet bricked; at installed brick locations,

Meridian has agreed to drill 3/8” weep holes where required.” (Id.). Field Report 10

indicates this was resolved with the notation: “Full weeps were not installed on Bldg

B. 3/8” weep holes are being drilled at the appropriate locations.” (Id.). But

Laframboise found: “My inspection of the as-built structure indicates the mortar was

never cleaned out at the brick ledge. The photos from my April 29, 2020 inspection

show the cavity behind the removed brick exterior at the brick ledge/base is filled with

mortar past the second course of brick. [See Ex. A-4.] This is not a condition that can

arise over time; the only time wet mortar can get behind brick and solidify is while the

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bricks are being laid during construction. The fact it is still there indicates the builder

never cleaned the mortar from the cavity, as instructed by the Field Reports.”

(Laframboise Aff. at ¶ 9.c.i.).

• Field Report 6 further noted: “At brick, provide leave outs to clean mortar out at base;

every 3rd brick. See 17/AD1.2.” (Doc. 51-2 at 30). This issue was also resolved in

Field Report 10. The report indicates that Meridian intended to remove every third

brick to clean out the mortar. (Id. at 67). After this was started, the owner inspected

the brick and learned that “only the mortar behind the removed bricks was cleaned out.”

(Id.). Per Miller, Meridian reported it had cleaned out the mortar from the base

flashing; Field Report 10 indicates this was resolved, as “This is being done and should

continue.” (Id.). However, Laframboise found “my inspection of the as-built structure

indicates the mortar was never cleaned out at the ‘brick ledge,’ which is synonymous

with the ‘base.’” (Laframboise Aff. at ¶ 9.d.i.).

• Field Report 6 also stated: “Exterior on the 20th Street side are missing the z-flashing

at door heads. Install Z-flashing as required. See detail per finish condition.” (Doc. 51-

2 at 30). This was allegedly resolved in Field Report 9, with the notation “This has

been done at all viewed locations.” (Id. at 57). Laframboise found that this had not

been done, as there was no flashing above any doors. (Laframboise Aff. at ¶ 9.e.i.)

• Field Report 8 (Roberts and Ziggler present for Meridian) noted: “Expandable brick

ties (2-piece) were not provided where brick is greater than 30’ above the foundation

per details 9 & 10/AD1.1. Provide a gap between the top brick course and the foam

stucco trim; install a 1” backer rod and sealant.” (Doc. 51-2 at 44). This persisted until

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resolved in Field Report 10, when “per Meridian, a gap with 1” backer rod and sealant

will be installed.” (Id. at 67). Laframboise indicated “this corrective work was never

performed; there is no gap between the top brick course and the foam stucco trim and

there is no indication of backer rod and sealant.” (Laframboise Aff. at ¶ 10.a.i.).

• Field Report 8 also indicated: “Uncovered balconies require Pemko WPS thresholds;

these have not been installed. Refer to drawings and see notes on Exterior Door &

Threshold submittal. Remove existing thresholds and install specified product.” (Doc.

51-2 at 45). This was also resolved in Field Report 10, with the notation: “All

thresholds are installed. Per Meridian, the Pemko WPS will not be installed at any

doors. Meridian has accepted responsibility for waterproofing thresholds at all

uncovered balconies.” (Id. at 68). Laframboise found there were “no thresholds of any

kind underneath the doors accessing balconies,” which had “led to significant water

infiltration and damage.” (Laframboise Aff. at ¶ 10.b.i).

• Field Report 11 (Thompson, Miller, and Ward present for Meridian) showed:

“The metal flashing at balcony flashing at radius (and some rectilinear) balconies is in

line with or behind the stucco trim. Owners recommendations include: a. Tear-out and

re-install. b. Counterflash and caulk top and bottom. c. Contractor to submit

recommendation for approval.” (Doc. 51-2 at 75). This was ultimately resolved in

Field Report 16 (Cushard, Thompson, and David Tolbert present for Meridian), which

noted that Meridian had selection option b. (Id. at 106). Per that report: “Where

observed, flashing at walkways and balconies appears to be corrected. Per Meridian,

all locations have proper flashing.” (Id.). However, Laframboise’s inspection

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indicated this work was never performed, and he found “no counterflashing or caulk is

present on the affected areas.” (Laframboise Aff. at ¶ 11.a.i.).

• Finally, Field Report 15 (Thompson, Miller, Ward, and Cushard present for Meridian)

indicated that “At all bridges between buildings A & B, verify that bridge-building

connections are properly flashed and finished. Where noted, the flashing/waterproofing

had not been installed.” (Doc. 51-2 at 100). As of Field Report 16, this was listed as

resolved, with the notation “This has been done.” (Id. at 106). Laframboise indicated

that this had never been performed. (Laframboise Aff. at ¶ 12.a.i.). Instead, he found

that “the bridge-building connections were not properly flashed and finished; instead,

the affected areas were merely concealed with a layer of stucco.” (Id.).

Regarding these construction issues, Deriso testified:

There were issues along in the way of construction, which there typically are. But

at the end, it indicated all – all issues were resolved to their satisfaction and the

owner’s satisfaction. They were there every month, and we were paid our final

draws. And there were no issues even for the past 12 years. They – everyone had

my number, and I could have gone back any time to look at any issue should they

come up, but nobody ever called me with any maintenance or warranty issues

whatsoever, not even once, on this project.

(Deriso Dep. at 84-85).

Analysis

In its amended complaint, BSA raises seven claims: Count I, for negligent or wanton

construction, (doc. 31 at ¶¶ 20-25); Count II, for negligence or wantonness in general, (id. at ¶¶ 26-

31); Count III, for negligent or wanton hiring, supervising, or training, (id. at ¶¶ 32-37); Count IV,

a third-party beneficiary claim, (id. at ¶¶ 38-42); Count V, a claim for breach of warranties, (id. at

¶¶ 43-46); Count VI, for suppression of material facts, (id. at ¶¶ 47-52); and Count VII, for tolling

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of the statute of limitations, (id. at ¶¶ 55-56).

With the exception of Count VII, which is not a cause of action in its own right, these

claims seek to hold Meridian liable under different legal theories for its alleged failures in the

construction of the Bristol Southside development. Under Alabama law, when raised against

certain parties, such claims are subject to a two-year statute of limitations and a seven-year statute

of repose:

All civil actions in tort, contract, or otherwise against any architect or engineer

performing or furnishing the design, planning, specifications, testing, supervision,

administration, or observation of any construction of any improvement on or to real

property, or against builders who constructed, or performed or managed the

construction of, an improvement on or to real property designed by and constructed

under the supervision, administration, or observation of an architect or engineer, or

designed by and constructed in accordance with the plans and specifications

prepared by an architect or engineer, for the recovery of damages for:

(i) Any defect or deficiency in the design, planning, specifications, testing,

supervision, administration, or observation of the construction of any such

improvement, or any defect or deficiency in the construction of any such

improvement;  or

(ii) Damage to real or personal property caused by any such defect or

deficiency;  or

(iii) Injury to or wrongful death of a person caused by any such defect or

deficiency;

shall be commenced within two years next after a cause of action accrues or arises,

and not thereafter. Notwithstanding the foregoing, no relief can be granted on any

cause of action which accrues or would have accrued more than seven years after

the substantial completion of construction of the improvement on or to the real

property, and any right of action which accrues or would have accrued more than

seven years thereafter is barred, except where prior to the expiration of such seven-

year period, the architect, engineer, or builder had actual knowledge that such

defect or deficiency exists and failed to disclose such defect or deficiency to the

person with whom the architect, engineer, or builder contracted to perform such

service.

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ALA. CODE § 6-5-221. The effect of applying a statute of repose is to create “an absolute temporal

bar on a defendant’s liability.” CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014).

Meridian bases its motion for summary judgment solely on the application of the statute of

repose, arguing it is a “builder” under the statute. (Doc. 38-1 at 5-6). It puts the date on which

BSA’s cause of action accrued at “sometime in 2017,” which makes it “anywhere from ten to

eleven years after construction was completed.” (Id. at 6). On this basis, Meridian asserts the

statute of repose bars BSA’s claims. (Id.). BSA does not dispute that Meridian qualifies as a

“builder” within the meaning of the statute, and thus that the statute facially applies to it. (See

generally doc. 51). Instead, BSA argues that neither the statute of limitation or the statute of repose

apply because Meridian had actual knowledge of defects leading to the damage and failed to

disclose them. (See id. at 12-21).

Here, there is sufficient evidence for a jury to find that Meridian had actual knowledge of

defects and misrepresented to BSA that those defects had been corrected. Specifically, there are

some significant discrepancies between what Meridian says it did and what BSA’s expert

concluded were the conditions on the ground at the time of his inspection. Taking one example

(which, in this case, is sufficient for BSA to survive summary judgment), Field Report 11, dated

July 26, 2006, notes as a new construction issue: “The metal flashing at balcony flashing at radius

(and some rectilinear) balconies is in line with or behind the stucco trim. Owners recommendations

include: a. Tear-out and re-install. b. Counterflash and caulk top and bottom. c. Contractor to

submit recommendation for approval.” (Doc. 51-2 at 75). Field Report 16, dated January 23,

2007, indicates that Meridian had selected option b. and that the issue had been resolved, noting:

“Where observed, flashing at walkways and balconies appears to be corrected. Per Meridian, all

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locations have proper flashing.” (Id. at 106). However, Laframboise determined that “this

corrective work was never performed” and that his “inspection indicated that no counterflashing

or caulk is present on the affected areas.” (Laframboise Aff. at ¶ 11.a.i.). The evidence supports

that three Meridian representatives attended every meeting involving this defect, including the

January 5, 2007 meeting at which Field Report 16 was discussed. (See doc. 51-2 at 104). A

reasonable jury could conclude from this evidence that Meridian had actual knowledge of the issue

based on its representatives’ presence at the meeting. This is not the “tenuous chain of inferences”

Meridian says would be required to support its actual knowledge because it is based on

nonconjectural record facts and expert opinion.

As to whether the issue was resolved to the satisfaction of Bristol GP (which also goes to

whether it was a “defect” at all), the evidence also shows that (1) Meridian reported to BSA on the

date of the Field Report 16 meeting that all locations had proper flashing, (id. at 106) and (2)

Laframboise later found, on inspection, that no counterflashing or caulk was present, (doc. 51-1 at

6).4 Although Meridian points to the fact that the Field Reports indicate Bristol GP explicitly

approved of some remedial work it performed, (see doc. 52 at 3-4, 10-11), that is not the case for

the incident above, which shows Bristol GP relied on Meridian’s word that the work had been

4 Meridian casts the presence of this (and other) defects at all as a problem requiring the

jury to speculate what happened over the years, since BSA does not offer anything that goes to

“whether any maintenance, repair or other construction work of any kind was performed on the

condominium buildings during those twelve years.” (Doc. 52 at 6-7). That oversells how great a

logical leap the jury would be required to make; after all, they have Laframboise’s opinion—

explicitly stating his opinion that the work was not done—on which to rely. And Meridian simply

offers its own speculative alternatives to Laframboise’s opinion rather than seeking to undermine

it on evidentiary grounds.

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performed. Based on Laframboise’s opinion that no counterflashing or caulk had ever been

installed, a reasonable jury could conclude that Meridian representatives misrepresented to Bristol

GP at the meeting that the work had been done (or, in the words of the statute, “failed to disclose”

to Bristol GP that the defect still existed). A reasonable jury could then conclude that other repairs

supposedly made by Meridian had in fact not been made, which is simply a matter of extrapolating

this inference to other work Meridian says it performed—in other words, assessing the credibility

of Meridian’s assurances it did the work. Meridian argues that other inferences could conceivably

be drawn from this information—i.e., that “repairs were made in good faith by Meridian and its

subcontractors, but that unbeknownst to Meridian the repairs did not successfully resolve the

issues” or that “the subcontractors reported to Meridian that they had performed the remedial work

when they had not, and Meridian unwittingly passed this incorrect information on”—but this

overstates BSA’s burden at summary judgment and understates the court’s responsibility to draw

reasonable inferences in BSA’s favor. To that end, it is immaterial that Deriso denied there were

any unresolved construction issues, (see Deriso Dep. at 84-85), because the most this does is create

a factual issue that a jury must resolve. Accordingly, Meridian’s motion for summary judgment

is due to be denied.

Conclusion

For the reasons stated above, Meridian’s motion for summary judgment, (doc. 38), is

DENIED. The parties are DIRECTED to confer and to submit a joint status report by November

30, 2020 regarding new deadlines for, at a minimum, discovery and dispositive motions.

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DONE this 16th day of November, 2020.

~~

vo

JOHN H. ENGLAND, III

UNITED STATES MAGISTRATE JUDGE

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