Presley v. B.I.C. Constr. Inc.

• Decision Date: 04 September 2009
• Docket Number: 2080286.
• Citation: 64 So.3d 610
• Parties: Richard PRESLEY and Joy Presleyv.B.I.C. CONSTRUCTION, INC., Brandon Grant, and Michael Roberts.
• Court: Alabama Court of Civil Appeals

64 So.3d 610

Richard PRESLEY and Joy Presley

v.B.I.C. CONSTRUCTION, INC., Brandon Grant, and Michael Roberts.

2080286.

Court of Civil Appeals of Alabama.

Sept. 4, 2009.

John F. Whitaker and Douglas H. Bryant of Whitaker, Mudd, Simms, Luke & Wells, LLC, Birmingham, for appellants.Robert B. Stewart and A. Joe Peddy of Smith, Spires & Peddy, P.C., Birmingham, for appellees.BRYAN, Judge.

The plaintiffs below, Richard Presley and Joy Presley, appeal from a judgment as a matter of law (“JML”) entered in favor of the defendants below, B.I.C. Construction, Inc. (“B.I.C.”), Brandon Grant, and Michael Roberts. We affirm.

In May 2007, the Presleys were building a new house (“the house”) for themselves; Richard Presley was acting as the general contractor. The Presleys negotiated with B.I.C., a corporation operated by Grant and Roberts, regarding the framing of the house, the building of a deck frame and front steps for the house, and the installation of the doors and the windows in the house. During the negotiations, B.I.C. told the Presleys that it would provide, at cost, the materials for the framing of the house, the materials for the building of the deck frame and front steps, and the doors and windows to be installed in the house. B.I.C. also told the Presleys that it would charge a fee for the labor to perform the framing of the house, the building of the deck frame and front steps, and the installation of the doors and windows. Furthermore, B.I.C. told the Presleys that it would provide them with copies of the invoices it received from its suppliers for the materials it used in performing its work.

B.I.C. recommended that the Presleys select Silver Line Anderson windows (“Silver windows”) because they were the best available vinyl windows. On May 21, 2007, B.I.C. obtained a quote from Birmingham Sash & Door (“Birmingham Sash”), the supplier that B.I.C. normally used for doors and windows, for particular doors and Silver windows to install in the house. Birmingham Sash quoted a total price of $4,459.19 for the doors and Silver windows. The Presleys selected the Silver windows and, on May 26, 2007, entered into a written contract (“the May 26 contract”) with B.I.C.

In the May 26 contract B.I.C. agreed to frame the house, to build the deck frame and front steps, and to install the doors and windows in a workmanlike manner. The Presleys agreed to pay B.I.C. a fee in the amount $9,540 for its labor in performing its work under the May 26 contract and to pay B.I.C. the cost of the materials used in framing the house, the materials used in building the deck frame and front steps, and the doors and windows up to stated maximum amounts. The May 26 contract specified a maximum cost that the Presleys would pay for the materials to frame the house of $14,602.82, a maximum cost that the Presleys would pay for the materials to build the deck frame and front steps of $1,786.98, and a maximum cost that the Presleys would pay for the doors and windows of $4,459.19. Soon after executing the May 26 contract, the parties orally agreed that B.I.C. would provide the labor to pour the concrete slab of the house for $2,160; apparently, this oral agreement was never reduced to writing.

On May 29, 2007, three days after the parties entered into the May 26 contract, the Presleys gave B.I.C. a check in the amount of $4,459.19 for the doors and windows that were to be installed in the house. After receiving the Presleys' check in the amount of $4,459.19, B.I.C. placed an order with Birmingham Sash for the doors and Silver windows the Presleys had selected. When B.I.C. placed the order with Birmingham Sash, a dispute existed between B.I.C. and Birmingham Sash regarding B.I.C.'s account; Birmingham Sash insisted that B.I.C. owed Birmingham Sash a balance on its account whereas B.I.C. insisted that its account was current. Despite the existence of this dispute, B.I.C. understood that Birmingham Sash would order the doors and Silver windows for the Presleys' house.

On May 30, 2007, the Presleys gave B.I.C. a check in the amount of $7,400, which constituted a partial payment for the materials to be used in framing the house. B.I.C. ordered the materials to be used in framing the house and building the deck frame and front steps from Brown Lumber & Building Supply, Inc. (“Brown Lumber”). The cost of those materials totaled $11,397.42; B.I.C. obligated itself to pay Brown Lumber this amount.

In June 2007, B.I.C. began pouring the concrete slab for the house. After pouring the slab, B.I.C. discovered that the concrete that had been poured to form the slab had included one truck load that had begun to cure before it was poured and that the inclusion of the partially cured concrete had caused defects in the slab. B.I.C. attempted unsuccessfully to correct the defects in the slab.

B.I.C. framed the house in June 2007. The Presleys were dissatisfied with the framing because, despite the fact that the house plans specified that the main living area of the house should be framed for eight-foot ceilings, B.I.C. had framed it for nine-foot ceilings. Nonetheless, on June 29, 2007, the Presleys gave B.I.C. a check in the amount of $8,540, which represented payment of most of B.I.C.'s fee for performing its work under the May 26 contract—the Presleys withheld $1,000 of the fee because the house had not yet passed the final framing inspection.

When B.I.C. contacted Birmingham Sash to see if the doors and Silver windows had arrived, B.I.C. learned that Birmingham Sash had not ordered the doors and Silver windows because of the dispute regarding B.I.C.'s account. B.I.C. then asked Brown Lumber to obtain doors and windows that were as similar as possible to the ones that B.I.C. had ordered from Birmingham Sash. Brown Lumber obtained doors and windows that cost $3,514.49; the windows obtained by Brown Lumber were “Jordan” windows instead of Silver windows. With the $3,514.49 cost of the doors and windows, B.I.C. became obligated to pay Brown Lumber a total of $14,911.91 for the materials used in performing B.I.C.'s work under the May 26 contract.¹

On July 5, 2007, B.I.C. installed the doors and the Jordan windows provided by Brown Lumber. Before installing the doors and the Jordan windows provided by Brown Lumber, B.I.C. did not inform the Presleys that it had been unable to obtain the doors and Silver windows from Birmingham Sash, that it had asked Brown Lumber to obtain doors and windows that were as similar as possible to the doors and windows that Birmingham Sash was supposed to provide, or that it was going to install Jordan windows in the house instead of Silver windows. The Presleys went to the job site on July 5, 2007, and observed that B.I.C. had installed Jordan windows in the house because the windows had stickers on them identifying them as Jordan windows.

Following B.I.C.'s installation of the doors and windows on July 5, the Presleys sent B.I.C. a letter ordering B.I.C. to leave the job site, and B.I.C. obeyed the order. B.I.C. performed no more work after July 5, 2007, and the Presleys paid B.I.C. no more money. The three payments the Presleys had made to B.I.C. on May 29, May 30, and June 29 totaled $20,399.19.

On August 27, 2007, B.I.C. sent the Presleys a final invoice requesting payment in the amount of $9,022.50. The invoice reflected a credit of $484.66 for unused lumber and a credit of $3,705 for the estimated cost of repairing the defects in the concrete slab that B.I.C. had poured. Along with the August 27 letter, B.I.C. enclosed a copy of the May 21 quote they had obtained for doors and Silver windows from Birmingham Sash; B.I.C. did not enclose a copy of the invoice for the doors and Jordan windows Brown Lumber had provided. The Presleys did not pay B.I.C. any money as a result of the August 27 invoice.

In February 2008, the Presleys obtained a certificate of occupancy for the house and moved into the house.

In September 2007, the Presleys sued B.I.C., Grant, and Roberts (collectively referred to as “the defendants”). As finally amended, the Presleys' complaint stated claims of breach of contract, breach of implied warranty of habitability, negligence, wantonness, misrepresentation, suppression, theft by deception, and unjust enrichment. The gravamen of the Presleys' claims of breach of contract, breach of implied warranty of habitability, negligence, and wantonness was that B.I.C.'s work on the house did not conform to the contract and was not performed in a workmanlike manner. The gravamen of the Presleys' misrepresentation and suppression claims was that the defendants had misled the Presleys into believing (1) that B.I.C. was qualified to perform the work it had agreed to perform on the house and (2) that B.I.C. would install particular doors to be provided by Birmingham Sash and Silver windows in the house. The gravamen of the Presleys' theft-by-deception claim was that the defendants had fraudulently induced the Presleys to pay for work and materials that did not conform to the May 26 contract. The gravamen of the Presleys' unjust-enrichment claim was that the defendants had retained money the Presleys had paid them for work and materials that did not conform to the contract. The Presleys sought to recover damages for the diminution in value of the house allegedly caused by the defendants' failure to perform in accordance with the May 26 contract and in a workmanlike manner. The Presleys also sought to recover damages for mental anguish they had allegedly suffered as a result of the defendants' alleged breach of contract, misrepresentation, and suppression. In addition, the Presleys sought restitution of money they had allegedly paid the defendants for work and materials that did not conform to the May 26 contract.

The defendants denied liability, and the action proceeded to trial before a jury. During the Presleys' case-in-chief, Joy Presley, on direct examination, testified as follows regarding (1) how...