Kulakowski v. Cowart

• Decision Date: 20 May 2016
• Docket Number: 2140860.
• Parties: Joseph O. KULAKOWSKI v. John Michael COWART, Jr., and 130 St. Joseph Street, LLC.
• Court: Alabama Court of Civil Appeals

220 So.3d 304

Joseph O. KULAKOWSKI

v.John Michael COWART, Jr., and 130 St. Joseph Street, LLC.

2140860.

Court of Civil Appeals of Alabama.

May 20, 2016.

Rehearing Denied July 15, 2016.

Certiorari Denied Sept. 16, 2016

Alabama Supreme Court 1151115.

Joseph C. Sullivan, Jr., of Hamilton Butler Riddick Tarlton & Sullivan, Mobile; and Joseph O. Kulakowski, Mobile, for appellant.

Joseph J. Minus, Jr., and Bradley R. Sanders, Jr., of Phelps Dunbar, LLP, Mobile, for appellees.

THOMAS, Judge.

Joseph O. Kulakowski appeals from a judgment entered on a jury verdict awarding John Michael Cowart, Jr., and 130 St. Joseph Street, LLC ("the LLC"), compensatory damages in the amount of $22,400 and punitive damages in the amount of $10,600, on counterclaims of breach of contract, negligence, and conversion.¹

The record reveals the following facts. In the spring of 2008, Cowart was developing a hotel in Mobile. He had acquired a long-term lease for a parcel of property on which stood a building known as the American National Bank Building ("the bank building"); Cowart's plans required that the bank building be demolished and that that parcel of property be used as a parking lot. Cowart formed the LLC to hold title to the parcel and to contract with a demolition company to perform the task of demolishing the bank building; the LLC entered into a contract with Remedial Services Incorporated ("RSI") to perform the demolition. As part of his plans for the hotel development, Cowart intended to salvage and use certain items in the bank building and to salvage a portion of a brick wall on the property to serve as a barrier wall between the parking lot and a neighboring building. RSI cut the brick wall as requested, using a specialized saw, and conducted the remainder of the demolition.

On May 12, 2008, Kulakowski was walking by the demolition site and encountered Cowart. Kulakowski was interested in the granite panels that adorned a portion of the bank building. Cowart had no other party interested in the granite panels and told Kulakowski that he would take $2,000 for the approximately 160 five-foot-by-five-foot granite panels on the building. Cowart said that, while he and Kulakowski were discussing the matter, he telephoned the RSI site superintendent, Randall Carter, and spoke with him about Kulakowski's getting the granite panels; Cowart said that Carter was not excited about the prospect but had agreed to allow Kulakowski access to the demolition site, provided Kulakowski met with Carter and met all the rules and regulations regarding the demolition site, including being insured. Cowart testified that he told Kulakowski that Kulakowski had to discuss access to the demolition site with Carter before removing any granite panels. According to Cowart, Kulakowski requested that Cowart provide him with some way to identify himself as the person who Cowart had authorized to get the granite panels. Cowart had a business card on which he wrote "OK to get granite." Kulakowski said that he wrote $2,000 and his initials on the business card. Kulakowski said that Cowart did not telephone Carter while in Kulakowski's presence, but he admitted that Cowart telephoned him later to say that someone employed by RSI wanted him to remove the granite panels immediately so as not to stall the demolition.

Kulakowski testified that, subsequently, he went to the demolition site and spoke with Ronnie Simmons, one of RSI's supervisors. According to Kulakowski, Simmons told Kulakowski that he needed to stay out of the way of the demolition crew, so, Kulakowski stated, he agreed to remove the granite panels at night and over the upcoming weekend. Kulakowski testified that he began removing the granite panels on Friday, May 16, 2008. He said that he had spoken with Tilmon Brown, who had explained that the best way to remove the granite panels was to start from the top and work down. Kulakowski brought a "man lift" and a "lull" to the demolition site to assist him in removing the granite panels.

According to Kulakowski, other people were present at the demolition site over the weekend. He said that Don Adcock was there to collect brick and that Adcock employed homeless men to pick up and stack the brick for him. Kulakowski also said that he saw other people scavenging the site for brick or digging in the dirt, looking for whatever they might find. Although he testified that he was not interested in the brick, Kulakowski admitted that one of the men working for him might have collected some brick while on the demolition site; Kulakowski also explained that he and his men used pieces of broken brick as spacers between the granite panels as they stacked the panels. Kulakowski and his men worked from Friday evening to Sunday and removed 101 granite panels; afterward, approximately 58 granite panels remained on the bank building.

On Monday, May 19, 2008, Carter said that he arrived on the demolition site to find that the brick wall Cowart had planned to maintain was missing approximately 300 bricks and had been all but demolished. Carter explained that the brick wall "looked like a truck ran through it." In addition, Carter said, the demolition site was "a mess" and "a hazard" and the RSI sign that had been hanging on the fence surrounding the demolition site had been damaged. Carter testified that he telephoned Cowart to report that Kulakowski had come and removed the granite panels and that the brick wall had been severely damaged.

Cowart testified that Adcock telephoned Cowart on May 19, 2008, to report the damage to the brick wall. Cowart said that he tried to reach Carter and Simmons by telephone on that day but could not and that either Carter or Simmons telephoned him the following day to discuss the damage to the brick wall. Because the brick wall had been damaged and because Kulakowski had failed to clear his access to the demolition site with Carter, Cowart said, he believed that any "deal" he had had with Kulakowski regarding the granite panels had been broken. Cowart testified that he telephoned Kulakowski and told him he could not get the remaining granite panels and that "the deal was off." According to Cowart, because Kulakowski had broken the agreement to clear his access to the site with Carter, Kulakowski should have returned the granite panels he had removed and Cowart would not take the $2,000 Kulakowski had agreed to pay for the granite panels.²

In response to Cowart's accusation that Kulakowski or his men had damaged the brick wall, Kulakowski offered, by letter, to "make it right" if the damage had indeed resulted from his removal of the granite panels; as a good-faith gesture, Kulakowski sent Cowart a $2,000 check as "liquidated damages" if the brick wall could not be repaired to Cowart's satisfaction. However, at trial, Kulakowski testified that he did not see who removed the bricks from the brick wall. Kulakowski also sent Cowart a $2,000 check for the granite panels. Cowart returned the $2,000 check for the granite to Kulakowski; he did not cash the check denominated as "liquidated damages."

Ultimately, the remaining granite panels were removed from the bank building by RSI. Because, according to Cowart and Carter, no market existed for the granite panels, no particular care was taken in removing the remaining granite panels from the building. Cowart testified that the remaining granite panels were destroyed.

In addition to Cowart, Carter, and Kulakowski, two other witnesses testified at the trial: Brown and Gasper Naquin.³ Brown testified that he owns a construction business and that his family had been in the stone and monument business for 196 years. Brown said that he had worked for his family's business for a short time approximately 30 years before trial and that he had also served on the architectural-review board for the City of Mobile for 9 or 10 years and that he had served as its chairman for 4 years. He said that he had explained to Kulakowski that the granite panels needed to be removed from the top down because of the way they had been installed on the building. Brown indicated that he was present when Kulakowski removed the granite panels and that he had testified in his deposition that the bricks removed from the wall had been taken to Kulakowski's yard. However, Brown later said that the bricks had been stacked in the "drive thru area" of the bank building and not in Kulakowski's yard.

Naquin testified that he had 43 years of experience in the natural-stone industry as a fabricator, installer, and supplier of granite and other stone materials. He explained that the granite panels on the bank building were Carnelian granite, which is mined in the Minnesota River valley. According to Naquin, the granite panels were two and a half inches thick and had been designed and cut specifically for the bank building and were not mass-market pieces; he said that granite fabricated for current uses was much thinner. Naquin testified that the granite panels had no salvage value because it would be cheaper to have new material fabricated than it would be to remove the granite panels and to attempt to refabricate them for another use. Naquin further explained that the granite panels had no commercial use or value but that he did not know whether they might have a personal use or value.

Kulakowski commenced an action in the Mobile Circuit Court ("the trial court") against Cowart, the LLC, and Cowart Hospitality Services, LLC,⁴ seeking declaratory relief and damages for breach of contract, conversion, and detinue on May 28, 2008. Cowart and the LLC answered, and the LLC asserted counterclaims against Kulakowski, seeking damages for breach of contract, trespass, conversion, negligence, and wantonness. See note 1, supra. The trial occurred over two days in March 2015.

After counsel for the parties struck the jury, Kulakowski informed the trial court that he desired to make a challenge to the composition of the jury under Batson v. Kentucky, 476 U.S. 79, ...