Diamond Concrete & Slabs, LLC v. Andalusia–Opp Airport Auth.

• Decision Date: 12 August 2011
• Docket Number: 2100114.
• Court: Alabama Court of Civil Appeals
• Parties: DIAMOND CONCRETE & SLABS, LLC v. ANDALUSIA–OPP AIRPORT AUTHORITY and Southern Structures Corporation.

103 So.3d 73

DIAMOND CONCRETE & SLABS, LLC

v.ANDALUSIA–OPP AIRPORT AUTHORITY and Southern Structures Corporation.

2100114.

Court of Civil Appeals of Alabama.

Aug. 12, 2011.

Scott T. McArdle, Misha Mullins Whitman, and Nicholas S. Hines of McArdle & Whitman, P.C., Montgomery, for appellant.

Thomas B. Albritton of Albrittons, Clifton & Moody, P.C., Andalusia, for appellee Andalusia–Opp Airport Authority.

J. Mark Murphy of Murphy, Murphy & McCalman, P.C. Andalusia, for appellee Southern Structures Corporation.

BRYAN, Judge.

Diamond Concrete & Slabs, LLC (“Diamond”), appeals from a judgment as a matter of law (“JML”) in favor of the Andalusia–Opp Airport Authority (“the Airport Authority”) ¹ and Southern Structures Corporation (“Southern”) with respect to Diamond's claim under § 8–29–1 et seq., Ala.Code 1975 (“the Prompt Pay Act”).² We reverse and remand with instructions.

In May 2005, the Airport Authority, which owns the Andalusia–Opp Airport, contracted with Southern to act as the general contractor in the construction of an aircraft-modification hangar (“the hangar”) that could be leased to EJM, a company that modifies aircraft. Southern, which was responsible for selecting the subcontractors for the job, requested that Diamond bid on the subcontract to pour and finish the 26,000–square–foot concrete floor of the hangar. On July 12, 2006, Diamond submitted a bid indicating that, for a total price of $35,161, it would install plastic, wire mesh, and porous fill before pouring the concrete; pour the concrete in two pours; apply one application of a shake-on hardener to the drying concrete; and finish the concrete after the application of the shake-on hardener. The bid indicated that Diamond would not provide materials such as the plastic, the wire mesh, the porous fill, the concrete, and the shake-on hardener. It also indicated that Diamond would not provide engineering and testing services. Southern orally accepted Diamond's bid.

After accepting Diamond's bid, Southern informed Diamond that the floor would have to be poured in three pours instead of two and that there would have to be two applications of the shake-on hardener to the drying concrete instead of one. Diamond's president testified that he informed Southern's president that the change from two pours to three and the change from one application of shake-on hardener to two would increase Diamond's expenses by one-third and that Diamond would have to be compensated for the additional cost. Diamond's president further testified that Southern's president stated that “[a]s long as [Diamond's charge for the third day of work is] in line with the other two days it will be taken care of.” Southern's president denied making that statement.

In July 2006, Diamond poured the concrete in three pours, applied the shake-on hardener in two applications, and finished the concrete after the application of the shake-on hardener. Other parties provided the materials used by Diamond, including the concrete and the shake-on hardener. The concrete floor that resulted was defective; however, the evidence was in conflict regarding the cause of the defects. Southern employed another subcontractor to correct the defects in the floor.

On August 31, 2006, Diamond sent Southern a bill totaling $56,416. Southern paid Diamond $35,161 and paid another concrete company $7,200. Diamond gave Southern credit for the $7,200 payment made to the other concrete company but claimed that Southern still owed it $14,055. Southern refused to pay Diamond the $14,055.

On February 27, 2007, Diamond sued Southern and the Airport Authority in the Montgomery Circuit Court. Diamond stated a claim of breach of contract against Southern only, a claim of conversion against both Southern and the Airport Authority, and a claim pursuant to the Prompt Pay Act (“the prompt-pay claim”) against both Southern and the Airport Authority. Diamond sought to recover the $14,055 balance of its August 31, 2006, bill under each of those claims. In addition, it sought to recover “interest applied in accordance with Ala.Code 1975, § 8–29–3(d),” ³ and “reasonable attorney's fees, court costs and expenses” under the prompt-pay claim.⁴ The Montgomery Circuit Court transferred Diamond's action to the Covington Circuit Court. Answering Diamond's complaint, Southern and the Airport Authority denied that they were liable to Diamond. In addition, they asserted counterclaims of negligence against Diamond.⁵

The action proceeded to trial before a jury. At the close of all the evidence, the Airport Authority's attorney (1) orally moved for a JML with respect to Diamond's prompt-pay claim on the ground that Diamond should have based that claim on § 41–16–3, Ala.Code 1975, instead of § 8–29–1 et seq., Ala.Code 1975, and (2) orally moved for a JML with respect to Diamond's conversion claim on the ground that Diamond had failed to prove a prima facie case of conversion. Southern's attorney also orally moved for a JML with respect to Diamond's conversion claim; however, he did not move for a JML with respect to Diamond's prompt-pay claim, although he presented argument supporting the Airport Authority's motion for a JML with respect to that claim. Diamond's attorney moved for a JML in favor of Diamond with respect to its prompt-pay claim. The trial judge did not formally rule on those motions; however, he indicated that the only claims he would include in his jury charge were a breach-of-contract claim by Diamond against both Southern and the Airport Authority ⁶ and the counterclaims of negligence by Southern and the Airport Authority against Diamond. He further indicated that, although he would not charge the jury regarding Diamond's prompt-pay claim, he would consider that claim insofar as it sought interest and an attorney fee after the jury returned its verdict. Diamond's attorney indicated that he objected to the trial court's proposed jury charge insofar as it did not charge the jury regarding Diamond's prompt-pay claim.

Thereafter, the trial judge gave the jury the following instructions regarding Diamond's breach-of-contract claim:

“Now in this case the plaintiff, Diamond Concrete, has filed a suit against the defendants, Southern Structures and the Andalusia Airport Authority—Andalusia–Opp Airport Authority for breach of contract. The plaintiff, Diamond Concrete, claims that the plaintiff entered into a contract with these defendants whereby the plaintiff would pour or install a concrete floor in an airport hangar according to certain plans for a contract price.

“Diamond Concrete has alleged that the defendants have breached that agreement by failing to have paid the amount due to Diamond, and that as a result of that failure or that breach that the plaintiff is entitled to damages from these defendants.

“Now the plaintiff has the burden of proving [its] claims against the defendants to your reasonable satisfaction. In order to recover on its claim, Diamond Concrete must prove to your reasonable satisfaction each of the following:

“First, that there was an agreement between Diamond Concrete and the defendants; second, that the plaintiff fulfilled [its] obligations under that agreement; third, that the defendants have failed to fulfill their obligations under that agreement; and fourth, that as a result of the defendants' failure to fulfill their obligations under the agreement the plaintiff is entitled to damages.

“Now if after a careful consideration of all the evidence in the case you find that the plaintiff, Diamond Concrete, has sufficiently proved its claim for breach of contract, then it would be your duty to return a verdict in favor of Diamond Concrete and against Southern Structures and the Airport Authority on the breach of contract claim and then assess the amount of damages, if any, you determine that Diamond is entitled to.

“On the other hand, if after a careful consideration of all the evidence you find that the plaintiff, Diamond Concrete, has not sufficiently proved its claim against Southern Structures and the Airport Authority on its breach of contract claim, then it would be your duty to return a verdict in favor of Southern Structures and the Airport Authority on Diamond's breach of contract claim.

“Now in the event that you do find in favor of Diamond Concrete on its breach of contract claim and determine to award Diamond Concrete damages on that claim, I will tell you that damages for the breach of a contract is that amount of money that would place the injured party in the same situation that he would have been in if the contract had not been breached.

“And, of course, if you do not find that Southern Structures and the Airport Authority breached the agreement, then Diamond Concrete would not be entitled to any damages under its breach of contract claim.

“Now in answer to Diamond Concrete's complaint, these defendants have each denied that they are liable to Diamond Concrete for any alleged breach of contract, and they assert that they do not owe Diamond Concrete any more money than that which has already been paid to Diamond Concrete.”

The trial judge also charged the jury regarding Southern's and the Airport Authority's negligence counterclaims against Diamond. He did not charge the jury regarding Diamond's prompt-pay claim, although he did make provision on the breach-of-contract verdict form for the jury, in the event it found in favor of Diamond on that claim, to indicate the date when Diamond should have been paid.⁷ Moreover, the trial judge charged the jury:

“This [breach-of-contract] verdict form differs from the other two [relating to Southern's and the Airport Authority's counterclaims] in this way. If in fact you do come to the point where you—if you find from the evidence that Diamond Concrete is entitled to recover, there's one other thing under that that says: If you find in favor of Diamond Concrete and award damages on its claim, answer the following question: ‘On what...