Bowers v. Howell, A91A1913

• Decision Date: 13 March 1992
• Docket Number: No. A91A1913,A91A1913
• Citation: 203 Ga.App. 636,417 S.E.2d 392
• Parties: BOWERS et al. v. HOWELL.
• Court: Georgia Court of Appeals

Page 392

417 S.E.2d 392

203 Ga.App. 636

BOWERS et al. v. HOWELL.

No. A91A1913.

Court of Appeals of Georgia.

Decided March 13, 1992.

Reconsideration Denied April 1, 1992.

Thomas M. Strickland, Athens, for appellants.

Heard, Leverett & Phelps, Richard D. Campbell, Elberton, for appellee.

BEASLEY, Judge.

Plaintiff, Alton Howell, brought this suit for $10,825 to foreclose a materialman's lien on Ted and Sharon Bowers' property, arising from his performance of a contract under which he made renovations and additions to their home. Following the return of a jury verdict in plaintiff's favor for $8,400 defendants appeal the trial court's denial of their motions for directed verdict, jnov, and new trial. They contend that the parties' contract is void and unenforceable in its entirety, in that plaintiff, who did electrical and plumbing work, had neither a plumbing nor an electrical contracting license.

Plaintiff testified that he has been a carpenter for 14 years, cannot read or write, and did not realize until doing this job that he needed a license to do electrical and plumbing work. The parties' contract was written by plaintiff's wife. It itemizes the work to be performed but not the price, which is stated as a sum of $11,975. The contract required plaintiff to build a 20' by 30' bedroom; to construct flooring, roofing, and a closet; to install insulation, sheeting decking, interior and exterior doors, exterior siding, and windows, as well as a cabinet, tub, commode, and vanity; to do interior and exterior painting; and to remove walls and wallpaper. In regard to electrical work, the contract called for plaintiff to install a 200 amp switch box with breakers and to wire new rooms for outlets and lights.

The only major complaint concerning the wiring was that the dryer overheated and almost caught fire, but plaintiff attributed this to the appliance and not the wiring. The only plumbing work done by plaintiff was to connect the commode and lavatories to the water supply. The remaining plumbing was done by a subcontractor.

Although defendants made an initial payment to plaintiff in the amount of $1,150, they refused to pay the remainder on grounds he had failed to substantially complete the work and there were numerous defects.

1. " '[W]here a statute provides that persons proposing to engage in a certain business shall procure a license before being authorized to do so, and where it appears from the terms of the statute that it was enacted not merely as a revenue measure but was intended as a regulation of such business in the interest of the public, contracts made in violation of such statute are void and unenforceable.' [Cits.]" Bernstein v. Peters, 68 Ga.App. 218, 221(1), 22 S.E.2d 614 (1942); accord Robinson v. Colonial Discount Co., 106 Ga.App. 274, 277(3), 126 S.E.2d 824 (1962). "Accordingly, at whatever stage of the proceedings it appears that the plaintiff is seeking to recover upon a contract permitted to be entered into only by persons holding licenses issued as a regulatory measure, it becomes imperative for the plaintiff to prove that he holds such a license and held such license at the time the contract was entered into in order to authorize a recovery." Management Search v. Kinard, 231 Ga. 26, 29(3), 199 S.E.2d 899 (1973).

"No person shall engage in the electrical contracting business as an electrical contractor unless such person has a valid license...." OCGA § 43-14-8(a). "No person shall engage in the business of plumbing as a master plumber unless such person has a valid license...." OCGA § 43-14-8(b)(1). These licensing requirements are intended for the protection of the public against faulty, inadequate, inefficient, or unsafe electrical or plumbing work. OCGA § 43-14-1.

Plaintiff argues that his failure to procure a license raises the affirmative defense of illegality, which has been waived by defendants since it was not pled as required by OCGA § 9-11-8(c) and was not made an issue in the pretrial order pursuant to OCGA § 9-11-16(b). Defendants respond that plaintiff cannot argue that they waived this defense, since evidence that plaintiff did not possess the required license was admitted without objection at trial. "[T]he purpose of the pleading rules set out in CPA § 8, supra, is 'to prevent surprise and to give the opposing party fair notice of what he must meet as a defense.' [Cit.] ... ' "[F]ailure to plead an affirmative defense is immaterial if evidence of the defense is introduced and not objected to for failure to plead it, and no surprise is claimed." ' " Hall v. First Nat. Bank of Atlanta, 145 Ga.App. 267, 269-270(3), 243 S.E.2d 569 (1978).

Under OCGA § 9-11-15(b), "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Implied consent usually is found where one party raises an issue material to the other party's case, or where evidence is introduced without objection. Carreras v. Austell Box Bd. Corp., 154 Ga.App. 135, 137(2), 267 S.E.2d 792 (19...