Ex parte Weeks, 083019 ALCIV, 2180658
| Opinion Judge | EDWARDS, Judge. |
| Party Name | Ex parte Barton J. Weeks and Weeks Engineering Construction and Consulting, LLC v. Barton J. Weeks and Weeks Engineering Construction andConsulting, LLC In re: Rustic Mountain Restoration, LLC |
| Judge Panel | Thompson, P.J., and Moore, J., concur. Hanson, J., concurs specially. Donaldson, J., concurs in the result, without writing. HANSON, Judge, concurring specially. |
| Case Date | August 30, 2019 |
| Court | Alabama Court of Civil Appeals |
(Shelby Circuit Court, CV-18-900066)
PETITION FOR WRIT OF MANDAMUS
EDWARDS, Judge.
Barton J. Weeks ("Weeks") and Weeks Engineering Construction and Consulting, LLC ("WECC"), seek a writ of mandamus directing the Shelby Circuit Court ("the trial court") to vacate its order denying their motion for a summary judgment on the ground that the trial court lacked subject-matter jurisdiction, based on a purported lack of standing, over an action commenced by Rustic Mountain Restoration, LLC ("RMR"), against Weeks and WECC and to enter an order granting their motion.
Facts and Procedural History
The dispute arises from a purported roofing agreement between Weeks and RMR, Rustic Mountain Roof & Restoration, or Rustic Mountain Roof & Restoration, LLC ("RMRR"), all of which are apparently owned by Andrew Davenport. Rustic Mountain Roof & Restoration and RMRR are sometimes hereinafter referred to collectively as "the affiliated entities." Pursuant to the purported roofing agreement, RMR or one of the affiliated entities was to roof a house owned by Weeks ("the Weeks property") and located in Shelby County.[1] The price for the roofing work on the Weeks property was $15, 640.
On January 5, 2018, Rustic Mountain Roof & Restoration filed a mechanic's and materialman's lien in the Shelby Probate Court against the Weeks property. The lien form was executed by Davenport, as owner, and avers that Rustic Mountain Roof & Restoration entered into a written agreement with Weeks to roof the Weeks property for $15, 640, that Rustic Mountain Roof & Restoration completed that work, and that it had not been paid.
On January 23, 2018, RMR filed a complaint in the trial court against Weeks and WECC, each of which is described as "Defendant." RMR alleged that, "[o]n or about October 16, 2017, Defendant hired [RMR] to []roof a house owned by Defendant Weeks" at an "agreed upon price ... [of] $15, 640," that "[w]ork on the roof began on November 20, 2017, and was completed on December 7, 2017," and that "Defendant has refused to pay [RMR] for the materials supplied and work performed." RMR's complaint included claims against Weeks and WECC for alleged breach of contract and for work and labor performed. RMR requested a judgment against Weeks and WECC for $15, 640.
Weeks and WECC filed an answer denying the pertinent allegations of the complaint, and Weeks filed a counterclaim alleging that WECC had no ownership interest in the Weeks property and that Weeks had not entered into any agreement with RMR. Instead, according to Weeks, he had entered into an agreement with one of the affiliated entities for the roofing of the Weeks property.2 Weeks alleged that the affiliated entities appeared to be doing business under the name of RMR, that the roof at issue had not been properly installed, and that damage had been caused to the Weeks property by one of the affiliated entities. Weeks also alleged that neither RMR nor either of the affiliated entities possessed a license from the State Home Builders Licensure Board. See Ala. Code 1975, § 34-14A-3. Weeks asserted claims against RMR alleging breach of the contract by one of the affiliated entities, various forms of negligence, misrepresentation/fraud, breach of warranty, and slander of title.
On February 18, 2019, Weeks and WECC filed a motion for a summary judgment regarding RMR's claims.[3] In pertinent part, Weeks and WECC contended that they had not entered into an agreement with RMR but that, even if they had entered into such an agreement, RMR could not pursue its claims because Ala. Code 1975, § 34-14A-14(d), provides that "[a] residential home builder, who does not have the license required, shall not bring or maintain any action to enforce the provisions of any contract for residential home building which he or she entered into in violation of this chapter." See also Ala. Code 1975, § 34-14A-2(11) (defining "residential home builder" to "include[] a residential roofer when the cost of the undertaking exceeds two thousand five hundred dollars ($2, 500)"). Weeks and WECC further contended that, to the extent the trial court might allow RMR to amend its complaint to substitute one of the affiliated entities as the plaintiff those entities likewise were unlicensed and could not pursue the claims asserted in the complaint. According to Weeks and WECC, the trial court had no subject-matter jurisdiction over the claims at issue based on lack of standing.
In support of their motion for a summary judgment, Weeks and WECC submitted an affidavit from J.R. Carden, Jr., who averred that he is "the Executive Director and Custodian of Records of the Home Builders Licensure Board" and that neither RMR nor RMRR had ever been "a licensee of the [Home Builders Licensure] Board."[4] Carden further averred, in pertinent part, that RMRR had been "identified as an unlicensed builder due to unlicensed builder activity at" the Weeks property and that, "[o]n August 6, 2018, [RMRR] [had] entered into an Administrative Resolution through which [it] agreed to pay ... a $1, 000.00 administrative fine, thus resolving [its] violation."5 In the Administrative Resolution, a copy of which also was submitted in support of Weeks and WECC's motion for a summary judgment, RMRR admitted that it had "acted as a residential home builder, as that term is defined in Ala. Code § 34-14A-2(10) (1975)" in performing work at the Weeks property, that RMRR was "required to be licensed" by the Home Builders Licensure Board and "did not hold such a license," and that RMRR did "not qualify for an exemption as stated in Ala. Code § 34-14A-6 (1975)." The Administrative Resolution was executed by Davenport, on behalf of RMRR.
RMR filed a response to Weeks and WECC's motion for a summary judgment. In the response, RMR contended that Weeks was a licensed residential homebuilder, that RMR had entered into an agreement to roof the Weeks property, and that, "[p]rior to beginning work on [the Weeks property, ] ... Weeks repeatedly assured [RMR] all permits and licensures would be handled by him through his company and [RMR] had zero reason to doubt his word because [Weeks] was a licensed home builder [and] had been in the construction industry twice as long as [RMR]. (Exhibit D). Whether [RMR] was working under [Weeks's or WECC's] Alabama Home Builder's License is a genuine question of material fact that should be determined by the trier of fact."
Exhibit D, which RMR submitted in support of its response to the motion for a summary judgment, is an affidavit from Davenport. Davenport averred that he is the owner of RMR and: "3. I met ... Weeks when he inspected a roof my company installed. We struck up a conversation wherein he offered to sell me a camera used in the construction industry to detect leaks. We exchanged information during the course of purchasing ... Weeks's camera; he asked if I would be interested in roofing two properties he owned. ... Weeks stated that he had made insurance claims for hail damage. We went over the specifics and I agreed to perform the job.
"4. Prior to starting any work permits and licenses were discussed. ... Weeks is a licensed Alabama Home Builder and Remodeler and assured me I could work under his license. ... Weeks also stated that he was close friends with the Home Owner Association President and that he would take care of any issues with the HOA. ... Weeks is very knowledgeable about construction and the roofing process.[6] Therefore, a lot of information you go over with a typical homeowner was not necessary. ... Weeks knew exactly what he wanted and was extremely specific as to the job details."
Davenport further averred that RMR completed the first roofing job and that...
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