Tasha Robinson and Eddie Robinson, the plaintiffs below, appeal from a summary judgment entered in favor of Sovran Acquisition Limited Partnership ("Sovran"), Uncle Bob's Self Storage, Kathy Cruso, and Gary Vandervent, the defendants below. We affirm.
On March 1, 2008, Tasha Robinson entered into a rental agreement with Sovran in which she rented a storage unit at Uncle Bob's Self Storage, a storage facility owned by Sovran. The rental agreement contained an exculpatory clause,
(Capitalization and bold typeface in original.)
When the rental agreement was entered into, Vandervent, a Sovran employee, informed Tasha Robinson that the storage facility was protected by surveillance cameras 24 hours a day. The Robinsons subsequently began storing their personal property in the rented storage unit. On approximately July 22, 2008, Sovran began renovating the storage facility. The manager of the storage facility, Andrew Marc Ney, testified that "[t]he surveillance cameras that monitored the storage facility were functioning properly until the time that renovations began on or about July 22, 2008." On approximately August 13, 2008, someone broke into the Robinsons' storage unit and stole personal property belonging to them. According to Tasha Robinson, a Sovran employee informed her that the surveillance cameras did not record the break-in "due to renovation."
The Robinsons subsequently sued Sovran and the other defendants, alleging claims of negligence, wantonness, fraud, deceit, and breach of contract. The Robinsons sought damages for the loss of their personal property that had been stolen from the storage unit while the surveillance cameras were inoperable. As we will discuss in more detail below, the defendants moved for a summary judgment on various grounds, and the trial court entered a summary judgment in their favor on all claims. The Robinsons appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.
Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).
In moving for a summary judgment, the defendants asserted that the exculpatory clause in the rental agreement barred the Robinsons' negligence claim. On appeal, the Robinsons argue that the exculpatory clause does not bar their negligence claim. In making that argument, the Robinsons do not contend that the exculpatory clause is invalid. See, e.g., Morgan v. South Cent. Bell Tel. Co., 466 So.2d 107, 116-18 (Ala.1985) (establishing criteria for determining whether an exculpatory clause affects the public interest and is therefore invalid). Rather, the Robinsons argue that the exculpatory clause cannot be enforced given the facts of the alleged negligence in this case. More specifically, the Robinsons argue that the exculpatory clause does not bar a claim based on the defendants' "active" negligence, as opposed to "passive" negligence. The Robinsons contend that the defendants committed active negligence because, the Robinsons say, the defendants disabled the surveillance cameras while the storage facility was being renovated. The Robinsons argue that the record on appeal contains substantial evidence of active negligence by the defendants and, therefore, that the exculpatory clause does not bar the negligence claim.
In Baker v. Wheeler, Lacey & Brown, Inc., 272 Ala. 101, 128 So.2d 721 (1961), our supreme court construed Armi v. Huckabee, 266 Ala. 91, 94 So.2d 380 (1957), as having established a rule that an exculpatory clause contained in a residential lease may shield a landlord from liability for passive negligence but not active negligence. Following Baker, our appellate courts applied this distinction between active and passive negligence in certain cases concerning exculpatory clauses in residential leases. See Matthews v. Mountain Lodge Apartments, Inc., 388 So.2d 935 (Ala.1980); Walston v. Birdnest Apartments, Inc., 395 So.2d 45 (Ala.1981); and Irvin v. Houston, 444 So.2d 878 (Ala.Civ. App.1984). Although no Alabama case has addressed the issue, the distinction between active and passive negligence, at least in the context of exculpatory clauses contained in residential leases, no longer appears relevant given the recent enactment of the Alabama Uniform Residential Landlord and Tenant Act, § 35-9A-101 et seq., Ala.Code 1975 ("the Act"). The Act broadly prohibits and makes unenforceable, in a residential-lease agreement, any provision in which the tenant "agrees to the exculpation or limitation of any liability of the landlord arising under law." § 35-9A-163(a)(4), Ala.Code 1975; see also § 35-9A-163(b), Ala.Code 1975; Comment to § 35-9A-163, Ala.Code 1975 (indicating the need to protect an uninformed tenant who may surrender or waive rights against a landlord for damages arising from a landlord's negligence); and Fuentes v. Owen, 310 So.2d 458, 459 n. 1 (Fla.Dist.Ct. App.1975) (stating that, under a Florida statute containing similar language as that found in § 35-9A-163(a)(4), an exculpatory clause would not shield a residential landlord from liability for negligence).
The Robinsons argue that the active/passive dichotomy articulated in Baker should be applied in this case to prevent the enforcement of the exculpatory clause as to their negligence claim. However, the cases relied on by the Robinsons concern the specific context of exculpatory clauses in residential leases entered into before the adoption of the Act in 2007. Of course, unlike Baker and subsequent cases relying
Next, the Robinsons argue that the trial court erred in entering a summary judgment on their wantonness claim.
Next, the Robinsons argue that the trial court erred in entering a summary judgment on the their claims alleging fraud and deceit. In their complaint, the Robinsons made the following allegations regarding those claims:
The Robinsons contend that their complaint stated claims alleging both fraud and deceit. The elements of fraud are:
Coastal Concrete Co. v. Patterson, 503 So.2d 824, 826 (Ala.1987). See also § 6-5-101, Ala.Code 1975 (stating the elements of fraud). "In promissory fraud, the material existing fact that is misrepresented is the defendant's state of mind, when the defendant represents that he intends to perform some act although he does not in fact intend to perform it." Spring Hill Lighting & Supply Co. v. Square D Co., 662 So.2d 1141, 1149 (Ala.1995).
The Robinsons' complaint may be read as alleging that, when the rental agreement was signed in March 2008, the defendants misrepresented that the storage facility was then protected by surveillance cameras. However, as the defendants argued in the trial court, the record contains no evidence establishing that the storage facility was not protected by surveillance cameras when the rental agreement was entered into. Conversely, the manager of the storage facility, Ney, testified that the surveillance cameras "were functioning properly" before renovations to the storage facility began in July 2008. Also, Tasha Robinson testified that, on the day she signed the rental agreement, she observed a video monitor indicating that the surveillance camera monitoring the entrance to the storage facility was functioning. Insofar as the fraud claim alleged that the defendants misrepresented that the surveillance cameras were functioning when the rental agreement was entered into, that claim fails because there is no evidence indicating that the defendants made a false representation concerning that existing fact. See, e.g., Singleton v. Protective
The Robinsons' complaint alleged that the defendants represented that the storage facility would be "protected by continuous surveillance." Insofar as the Robinsons' fraud claim is based on an alleged promise to maintain the surveillance cameras, the complaint appears to have alleged a promissory-fraud claim. To establish promissory fraud, the Robinsons were required to establish, among other things, that the defendants did not intend, when the rental agreement was entered into, to continue to use surveillance cameras at the storage facility. See Coastal Concrete Co., 503 So.2d at 826. However, the Robinsons presented no evidence indicating that the defendants, when the rental agreement was entered into, intended not to use surveillance cameras in the future. Therefore, the Robinsons' promissory-fraud claim fails.
The Robinsons also argue that the trial court erred in entering a summary judgment on their deceit claim, made pursuant to § 6-5-104, Ala.Code 1975. That section, entitled "Deceit—Fraudulent deceit," provides, in pertinent part:
It appears that the Robinsons contend that the defendants are liable for deceit under § 6-5-104(b)(3) because, the Robinsons say, the defendants failed to notify them that the surveillance cameras were not functioning during the renovation of the storage facility. Before the trial court, the defendants asserted that they owed no duty to inform the Robinsons that the surveillance cameras were inoperable during the renovation of the storage facility. The Robinsons contend that the question whether the defendants owed the Robinsons such a duty is a jury question. However, whether the defendants owed the Robinsons a duty to inform them that the surveillance cameras were inoperable is a question of law to be determined by the trial court. State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834, 840 (Ala.1998) ("The judge should decide whether, assuming as truth all of the plaintiff's factual assertions, they are sufficient to give rise to a legal duty."). See also Flying J Fish Farm v. Peoples Bank of Greensboro, 12 So.3d 1185, 1192 (Ala.2008).
In arguing that the defendants owed them a duty to inform them that the surveillance cameras had become inoperable, the Robinsons cite general principles regarding the suppression of material facts. However, the Robinsons do not explain how those general principles relate to the facts of this case to create a duty owed by the defendants with regard to the deceit claim. The Robinsons do not cite authority establishing that the defendants owed them a duty to disclose under the specific facts of this case. An appellate court does not "create legal arguments for a party based on undelineated general propositions unsupported by authority or argument." Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992). Therefore, we conclude that the Robinsons have not established that the trial court erred in entering a summary judgment on their deceit claim.
In a single sentence in their brief, the Robinsons summarily contend
Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003). Therefore, we do not consider that issue further.
In conclusion, the Robinsons have not established that the trial court erred in entering a summary judgment in favor of the defendants on the Robinsons' claims.
THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.