Ridnour v. Brownlow Homebuilders, Inc.
| Decision Date | 10 August 2012 |
| Docket Number | 2100851. |
| Citation | 100 So.3d 554 |
| Parties | James Andrew RIDNOUR v. BROWNLOW HOMEBUILDERS, INC., and John David Brownlow. |
| Court | Alabama Court of Civil Appeals |
OPINION TEXT STARTS HERE
Alabama Supreme Court 1111153.
Prior Version Held Invalid
Ala.Admin.Code r. 482–2–101–.02(1)
Michael C. Lambert, Athens, for appellant.
James M. Corder and Mitchell K. Shelly of Alexander, Corder, Plunk & Shelly, P.C., Athens, for appellees.
James Andrew Ridnour appeals from a judgment entered by the Limestone Circuit Court (“the trial court”) on a jury's verdict in favor of Brownlow Homebuilders, Inc. (“BHI”), awarding BHI $55,461.96 on its claim of breach of contract and from judgments as a matter of law entered by the trial court on claims asserted by Ridnour against BHI and John David Brownlow. We affirm.
The pertinent procedural history is as follows. In September 2007, BHI sued Ridnour alleging that Ridnour had failed to pay the last installment due under the terms of a residential construction contract and seeking a declaration of the validity and enforcement of a materialman's lien against the property. Ridnour answered the complaint and asserted counterclaims against BHI alleging, among other things, breach of contract and slander of title. With the approval of the trial court, Ridnour joined John David Brownlow as a defendant, in his individual capacity, asserting the same claims against Brownlow as had been made against BHI. In May 2009, the trial court granted Ridnour's motion for leave to amend his counterclaim in order to allege latent defects in the construction of the residence and for a continuance. After the recusal of the first trial judge and several continuances, the case went to trial in April 2011.
The day before jury selection was to begin, the trial court heard arguments on a motion in limine filed by BHI and Brownlow in August 2010, requesting that the trial court exclude from the trial any arguments or evidence based on the 1997 Standard Building Code. The trial court granted that motion, stating in a written order that
During the subsequent trial, near the end of the presentation of his case, Ridnour, as an offer of proof made outside the presence of the jury, called Alabama State Fire Marshal Ed Paulk, who testified regarding his office's adoption of the 1997 Standard Building Code. Ridnour further moved the trial court to take judicial notice of certain state laws and regulations that, Ridnour argued, authorized the State Fire Marshal to adopt the 1997 Standard Building Code. Ridnour further offered expert testimony and exhibits summarizing the alleged violations of the 1997 Standard Building Code committed in the construction of the residence. After receiving the offer of proof, the trial court maintained its ruling on the motion in limine and denied the judicial-notice motion.
At the close of the evidence, Ridnour voluntarily dismissed his breach-of-contract claim against BHI. The trial court disposed of all of Ridnour's remaining claims against Brownlow and BHI by granting their respective motions for a judgment as a matter of law (“JML”) pursuant to Rule 50, Ala. R. Civ. P. The trial court denied Ridnour's motion for a JML on the breach-of-contract claim filed by BHI, submitting that claim to the jury.1 After deliberating, the jury returned a verdict in favor of BHI in the amount of $55,461.96, and the trial court entered a judgment on that verdict without objection on April 26, 2011. Ridnour did not file any postjudgment motions, and he timely appealed the trial court's judgment.2
On appeal, Ridnour raises eight different issues. We do not reach the sixth issue, in which Ridnour argues that BHI did not present sufficient evidence that it was a party to the residential construction contract, because Ridnour did not properly preserve that issue for appeal. See United Servs. Auto. Ass'n v. Hobbs, 858 So.2d 966, 971–72 (Ala.Civ.App.2003) (). This court will not consider Ridnour's seventh issue—that the trial court erred in granting the motion for a JML filed by BHI on his slander-of-title claim—because Ridnour does not cite any legal authority in support of that argument. SeeRule 28(a)(10), Ala. R.App. P.; and Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (). We also do not reach Ridnour's eighth issue, in which Ridnour argues that the trial court erred in entering a JML on Ridnour's claim that the residence was not constructed in compliance with the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., again due to Ridnour's failure to cite any legal authority. Id.
Ridnour's first five issues all relate to the correctness of the trial court's ruling excluding any evidence of the applicability of or violations of the 1997 Standard Building Code. We will address those issues because they have been properly preserved, see State v. Askew, 455 So.2d 36 (Ala.Civ.App.1984) (), and argued.
On appeal, Ridnour argues that the trial court erred in excluding evidence regarding the 1997 Standard Building Code because that code had been lawfully promulgated through the office of the state fire marshal and the commissioner of insurance and that code established the mandatory residential construction standards that were applicable statewide at the time of the contract and construction of the residence at issue. We disagree.
Pursuant to § 27–2–10(a), Ala.Code 1975, the state commissioner of insurance “shall prescribe the ... duties of ... a State Fire Marshal.” The commissioner of insurance has not adopted any rules or regulations setting out the duties of the state fire marshal, but those duties are described in Chapter 19 of Title 36 of the Alabama Code of 1975 and, under § 27–2–17(a), Ala.Code 1975, no rule or regulation of the commissioner of insurance “shall extend, modify, or conflict with any law of this state or the reasonable implications thereof.” Thus, the commissioner of insurance would have authority only to prescribe duties of the state fire marshal that are in line with those duties established by the more specific laws regulating the duties of that officer, and the commissioner of insurance cannot confer additional powers on the state fire marshal that have been withheld by the legislature.
The only statute empowering the state fire marshal to adopt regulations of any kind is § 36–19–9, Ala.Code 1975. That section provides:
“The Fire Marshal, subject to the approval of the Commissioner of Insurance, shall make regulations for fire prevention and protection of any construction or building, exits or other safety measures and the keeping, storing, use, manufacture, sale, handling, transportation or other disposition of rubbish and highly inflammable materials, gunpowder, dynamite, carbide, crude petroleum or any of its products, explosives or inflammable fluids or compounds, tablets, torpedoes or any explosive of like nature including all fireworks, and may prescribe the material and construction of receptacles and buildings to be used for any of said purposes.”
(Emphasis added.) It is well settled that “[w]ords used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.” Tuscaloosa Cnty. Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa Cnty., 589 So.2d 687, 689 (Ala.1991). The word “any” is a broad term, Pappenburg v. State, 10 Ala.App. 224, 229, 65 So. 418, 420 (1914), synonymous with “all,” see Neal v. Watkins, 12 Ala.App. 593, 594–95, 68 So. 552, 553 (1915) (), so that the phrase “any construction or building” would encompass every type of construction or building, including residential construction and residential buildings. Thus, there can be no question that the state fire marshal can make regulations applicable to residential construction and buildings within the state.
Section 36–19–9, however, plainly states that those regulations shall be for the limited purpose of “fire prevention and protection.” The office of the state fire marshal was created by our legislature, see Ala. Acts 1919, No. 701, p. 1013, § 2, and, like any other creature of statute, the state fire marshal “can exercise only those powers which are expressly conferred upon [him or her], or necessarily incident thereto.” County Bd. of Educ. v. Slaughter, 230 Ala. 229, 232, 160 So. 758, 760 (1935). Hence, we conclude that the state fire marshal is empowered by § 36–19–9 to make regulations affecting residential construction and residential buildings only insofar as those regulations relate to fire prevention and protection.
In reaching our conclusion, we note that the legislature specifically empowered the state fire marshal to enter into “any building or premises” in the state, but only for “the purpose of making an investigation or inspection which under the provisions of this article he [or she] may deem necessary to be made.” § 36–19–4, Ala.Code 1975 (emphasis added); see also§...
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