Mass Appraisal Services, Inc. v. Carmichael
| Decision Date | 02 October 1981 |
| Citation | 404 So.2d 666 |
| Parties | MASS APPRAISAL SERVICES, INC. v. Bernard CARMICHAEL. 80-160. |
| Court | Alabama Supreme Court |
G. Griffin Sikes, Jr. of Steiner, Crum & Baker, Montgomery, for appellant.
Joel F. Dubina and Robert B. Stewart of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellee.
This is an appeal by Mass Appraisal Services, Inc., from a judgment and amendment thereto entered 29 August 1980 and 15 October 1980 respectively. The action was to resolve disputes arising out of a contract of 13 September 1972 between Bernard Carmichael and Hunnicutt & Associates, Inc., defining those parties' respective rights, duties, obligations and compensation for the performance of anticipated mass reappraisal contracts with certain counties in the State of Alabama. We affirm.
This is a very complex case which was greatly clarified by the approach taken to it on the part of the skilled and learned trial judge. The opinion of this court will, we think, be more readily understood if we set out in the opinion the pre-trial order (from which we omit the exhibit attached thereto). It reads as follows:
PRE-TRIAL ORDER
This suit arises out of a September 13, 1972 contract (hereinafter "basic contract") between Bernard Carmichael (hereinafter "Carmichael") and Hunnicutt & Associates, Inc., * (hereinafter "Hunnicutt") which defined the two parties' respective rights, duties, obligations and compensation for the performance of anticipated mass reappraisal contracts with Alabama counties.
In anticipation of Carmichael's contracting with various Alabama counties to perform the mass reappraisal work required by Weissinger v. Boswell, 330 F.Supp. 615 The evidence is in dispute as to which party drew the basic contract.
(M.D.Ala.1971) and Act No. 160 of the 1971 Legislature, the parties Carmichael and Hunnicutt entered the basic contract.
Act 160 required each county of the State to reappraise all real property within the county. It further required the Department of Revenue of the State of Alabama to supervise and regulate the program of reappraisal of all real property in the State of Alabama by prescribing procedures and standards to accomplish the work to be done under the program. In early 1972, the Revenue Department of the State of Alabama issued such a statement of procedures and standards in the form of a PROPERTY APPRAISAL HANDBOOK. At Page 42 of the handbook is a "sample uniform contract" which the Department required the County Boards of Commissioners to use in contracting with the prime contractor for the work. Section II of the sample contract (pages 46-53 of the handbook) specifies the services to be performed by the prime contractor.
The basic contract (the parties' September 13, 1972 Contract) contemplated Carmichael using this sample contract to contract with Alabama counties and for Carmichael then to sub-contract that portion of the work specified in the basic contract to Hunnicutt.
The pertinent parts of the basic contract are:
2. If Carmichael is successful in receiving a contract with the State of Alabama ... he will enter into a written contract with the State of Alabama or its subdivisions in his own name whereby Hunnicutt will perform the original mass appraisal services bid upon for the previously quoted bid amount.
3. Carmichael will communicate all bids to the State of Alabama or its subdivisions and will act as liaison during the contract term and including through the acceptance by the State of Alabama or its subdivisions of work required under the contract, will make all State and local contracts, will act as consultant as is more fully set out in paragraph 4 below, and will attend all formal hearings necessitated by the laws and revenue rulings of the State of Alabama or its subdivisions.
6. For each transaction wherein Carmichael is the "contractor" and Hunnicutt the "subcontractor," Hunnicutt shall furnish, at its own expense, a performance bond or bonds in favor of the State of Alabama or its subdivisions and in favor of Carmichael as well, in such amounts as will fully protect them from any and all losses under the contract.
7. Hunnicutt shall, as subcontractor, make all appraisals called for by the said contract and furnish to the State of Alabama or its subdivisions, on forms suitable therefor, all data and information required thereunder, all to be done in accordance with the terms and provisions of the Property Appraisal Handbook of the State of Alabama, with the appraisal manual of the State of Alabama and any supplements thereto or revisions thereof, and in accordance with any and all laws, revenue rulings, and directives appertaining thereto, whether the same are now in existence or not.
12. Hunnicutt further agrees to indemnify and hold Carmichael harmless from any and all actions, suits, or claims which may be brought against Carmichael because of any appraisal or other work or service performed hereunder by any person other than Carmichael whether arising in tort or contract, and whether the same shall have merit or not.
13. Carmichael further agrees to indemnify and hold Hunnicutt harmless from any and all actions, suits, or claims which may be brought against Hunnicutt because of any appraisal or other work or service performed solely by Carmichael whether arising in tort or contract, and whether the same shall have merit or not.
14. Nothing herein contained shall be construed to place the parties in the relationship of partnership or joint venture, and neither party hereto shall have the power to obligate or bind the other except 15. This agreement represents the entire understanding of the parties, and there are no representations, promises, warranties, covenants, or other understandings or undertakings, oral or written, except those contained in this agreement. Should any sentence, paragraph, clause, or combination of the same be held unenforceable or in conflict with the law in this jurisdiction, the validity of the remaining parts or provisions shall not be affected by such holding. It is the intention of both parties that this agreement shall be binding only to the extent that it may be lawful under state and federal law.
as the same may be hereinafter contracted by and between the parties hereto.
18. This agreement can be modified only by an instrument in writing signed by both parties.
19. This agreement is made and entered into in the State of Alabama and is made in contemplation of the laws thereof and shall be construed in accordance with such laws.
(Enumeration of these clauses does not preclude consideration of other clauses in the contract insofar as they may be applicable to any other contentions of the parties.)
Subsequent to the basic contract, Carmichael submitted bids (based upon bids supplied by Hunnicutt) to several Alabama counties. On the basis of those bids, Carmichael contracted (using the sample contract) with the Coffee, Macon, DeKalb, Calhoun and Henry County Board of Commissioners to reappraise real properties in these counties. Each of these contracts (hereinafter referred to as the county contracts) was solely between Carmichael and the respective county and there is no reference to Hunnicutt in these contracts. These five county contracts which are, for all purposes germane to these suits, virtually identical, provide, inter alia:
The Board of Equalization afforded property owners an opportunity to object to the amount of the appraisal or assessment or to point out alleged errors in the appraisal of their property.
Prior to the Board of Equalization hearings in each of the five counties, informal hearings were held as required by the county contracts at which the property owners in the respective counties were given an opportunity to review the appraisals of their property and point out alleged errors in those appraisals. Property owners were mailed notices of these hearings prior to their being held. Notices included, among other things, the time, date and place of the hearings, the appraised value of the owner's property, and a legal description of the owner's property, including acreage and/or lot, block and subdivision name. These information hearings were attended by Hunnicutt personnel.
Subsequent to Carmichael's contracting with the five Alabama counties, Carmichael and Hunnicutt entered contracts (hereinafter referred to as the county subcontracts) which provide:
(Enumeration of these clauses does not preclude consideration of other clauses in the contract insofar as they may be applicable to any other contentions of the parties.)
The subcontracts were drawn by the law firm of Jones, Murray, Stewart & Yarbrough, acting as counsel for Bernard Carmichael. As...
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