Jones v. McGuffin

• Decision Date: 04 May 1984
• Citation: 454 So.2d 509
• Parties: Ralph E. JONES, an individual and Ralph E. Jones & Associates, Inc., a Corporation v. William McGUFFIN and Virginia McGuffin. 82-45.
• Court: Alabama Supreme Court

Page 509

454 So.2d 509

Ralph E. JONES, an individual and Ralph E. Jones & Associates, Inc., a Corporation v. William McGUFFIN and Virginia McGuffin.

82-45.

Supreme Court of Alabama.

May 4, 1984.

Rehearing Denied July 13, 1984.

Thomas R. DeBray of Wood, Minor & Parnell, Montgomery, for appellants.

Dexter C. Hobbs of Copeland, Franco, Screws & Gill, Montgomery, for appellees.

Calvin M. Whitesell, Roger S. Morrow and Wesley Romine, Montgomery, for amicus curiae Alabama Council of the American Institute of Architects.

ALMON, Justice.

In an innocent misrepresentation and breach of implied contract action, a structural engineer and his company appeal from a judgment based on a jury verdict in favor of the purchasers of a home.

William and Virginia McGuffin planned to move from Houston, Texas, to Montgomery, Alabama, and contacted Linda Totty, a real estate agent with Aronov Realty, who showed the McGuffins approximately 12 houses in the Montgomery area during the fall of 1980.

On March 31, 1981, the McGuffins returned to Montgomery, and Totty showed them a house located at 3301 Warrenton Road in south Montgomery. The McGuffins liked the thirteen-year-old house, but noticed some cracks in the ceiling and walls of the residence. The McGuffins instructed Totty to obtain a structural engineering report on the house and conditioned their purchase of this residence upon receipt of a favorable report.

Approximately two months later, on the date of closing, May 22, 1981, Totty contacted Ralph E. Jones & Associates, Inc., and asked Ralph Jones, a structural engineer licensed in Alabama, to conduct a structural inspection of the Warrenton residence. Jones conducted two inspections of the house later that morning. Totty accompanied Jones on his first inspection, and he pointed out to her the particular conditions which formed the basis of his subsequent written report. Jones then conducted a second outdoor inspection of the house later that afternoon.

On the same day of the inspection, but before receiving Jones's written report, Totty telephoned Mrs. McGuffin in Houston and told her "about the cracks and that Mr. Jones said the house was in excellent structural condition."

After receiving this phone call, Mrs. McGuffin authorized the closing of the house on May 22, 1981. On May 25, 1981, Jones mailed the following written report to Totty:

"Dear Mrs. Totty:

"At your request I inspected the [Warrenton] residence to determine its general structural condition. This letter summarizes my findings and opinions.

"The house is a one story wood framed structure supported by a monolithic concrete slab-on-grade foundation. The exterior finish is brick veneer. The interior ceilings are gypsum board. The interior walls are gypsum board and wood panelling. The floor finishes consist of carpet and hard tile. I understand that the house is about fifteen (15) years old.

"The house appeared to be in excellent structural condition except for some minor cracks in the south end, namely:

"1. A small brick crack over the window of the southeast bedroom.

"2. Two small cracks across the ceiling of the hall.

"3. A small wall crack over the door at the south bathroom.

"I could find no evidence that these cracks were caused by foundation movement. It appears more likely that they are due to thermal expansion and contraction of the roof. In my opinion, these cracks do not represent any major problem and are of little consequence.

"There are some cracks in the carport slab, but these are very common and are to be expected. There is a crack in the ceiling of the carport caused by the automatic door lift. This could be easily corrected with a little block bridging between ceiling joists.

"In summary, it is my opinion that the house is in excellent structural condition."

After taking possession of the house on or about June 29, 1981, the McGuffins immediately noticed that the cracks noted by Jones had widened considerably and new cracks had appeared. In mid-July, 1981, the situation worsened, and they called Jones to conduct a follow-up inspection of the home. Jones discovered that there had been substantial foundation movement and severe cracking since his last inspection.

To remedy the situation, Jones recommended Jacque Pebworth, who performed the necessary repair work, which consisted of underpinning the house with 24 piers. The repair work took two months to complete and cost the McGuffins $12,300.00.

On February 18, 1982, the McGuffins filed a complaint in Montgomery Circuit Court which alleged that Jones, an employee of Ralph E. Jones & Associates, Inc., negligently inspected the Warrenton residence and breached an implied contract between Jones and Totty to properly inspect the residence in a professional manner and to render an accurate report to the McGuffins, third party beneficiaries of this implied contract. The McGuffins sought damages in the amount of $20,000.00 to compensate them for the repair work and their concomitant mental anguish.

The defendants filed a motion to dismiss on March 19, 1982, which was later denied. The defendants then answered the McGuffins' complaint, denying negligence in the inspection and denying that a contract between the parties existed or alternatively denying the inaccuracy of the report when rendered.

The McGuffins then amended their complaint to include a count for innocent misrepresentation under Code 1975, § 6-5-101. Defendants then filed a motion for leave of court to make service on third-party-defendant Linda Totty, which was denied due to an untimely filing.

Defendants answered the amended complaint, denying any misrepresentation of material fact. The McGuffins subsequently amended their complaint a second time to delete the negligence count. The pretrial order stated that the original complaint and all amendments would be followed at trial. No stipulations or admissions were included in this order.

The McGuffins also filed a motion in limine to prevent the introduction of any testimony or comments concerning the defendants' alleged negligence or whether the defendants knew or should have known that the elevation footings at the south end of the dwelling were allegedly at an inadequate depth. Both sides submitted briefs in response to this motion. Following a hearing, the trial court granted the motion.

The case was tried before a jury, which returned a verdict against both defendants in the amount of $20,000.00. Defendants filed a motion for new trial or in the alternative for judgment notwithstanding the verdict. This motion was denied.

The issues presented for review are 1) whether the trial court erred in denying the appellants' motion for a directed verdict, which challenged the sufficiency of the evidence on the McGuffins' fraud count; 2) whether ...