Thomas Learning Center, Inc. v. McGuirk

• Decision Date: 11 December 1998
• Citation: 766 So.2d 161
• Parties: THOMAS LEARNING CENTER, INC., et al. v. Don McGUIRK d/b/a McGuirk Construction Company, et al.
• Court: Alabama Court of Civil Appeals

766 So.2d 161

THOMAS LEARNING CENTER, INC., et al. v. Don McGUIRK d/b/a McGuirk Construction Company, et al.

2970471.

Court of Civil Appeals of Alabama.

December 11, 1998.

Rehearing Denied February 5, 1999.

Certiorari Quashed March 31, 2000.

Donna Shirley and Douglas Corretti of Corretti, Newsom & Hawkins, Birmingham, for appellants.

Joe L. Leak of Starnes & Atchison, L.L.P., Birmingham, for appellee Don Martin Construction Co., Inc.

Alabama Supreme Court 1980842.

CRAWLEY, Judge.

Robert F. Thomas and his wife Joyce E. Thomas and Thomas Learning Center, Inc. ("TLC"), a corporation controlled by the Thomases, sued Don McGuirk, d/b/a McGuirk Construction Company, and Don Martin Construction Company, Inc. ("Martin"), alleging breach of contract and negligence. McGuirk answered, denying that he had breached a contract with TLC or that he had been negligent. He also filed a counterclaim alleging breach of contract by TLC and an entitlement to compensation for work and labor done. Martin answered, denying that it had a contract with TLC or that it had been negligent, but asserting, in the alternative, that TLC had been contributorily negligent.

The case was tried to a jury, which returned a verdict for McGuirk and Martin on TLC's claims, and for TLC on McGuirk's counterclaims. The trial court entered judgments on the verdict and TLC appealed to the supreme court. The supreme court transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Mr. and Mrs. Thomas own and operate TLC, a day-care center in Alabaster. The Thomases contracted with McGuirk to design and build an addition to the day-care center, for $20,000. On May 10, 1996, the parties signed a written contract that provided the following:

"[McGuirk] agrees to meet all code requirements. Two classrooms are to be built, each having no less than 256 square feet of floor space, exclusive of bathrooms. The 18-month-old room is to have a diaper changing table and hand washing sink. Storage cabinets are to be provided below the sink and changing table.

"Three toilets and three hand wash sinks are to be included. Each classroom is to have two double-insulated windows and 8 feet of shelf space. The shelf space is to be 5 feet above floor level."

McGuirk told the Thomases that he was a licensed general contractor and that he had his own architect who would design the addition and who would be paid $390 from the $20,000 total fee for the project. The contract further provided:

"This construction job consists of a separate contract for drawing services. Drawing services are contracted for with BAF Drafting, a separate business owned by Bennie Freed. The drafting fee for this 600 square foot addition amounts to $390 and has been deducted from the quoted $20,000 price to arrive at a contract price for the construction of $19,610."

The Thomases paid McGuirk $9,600 when the contract was signed.

The contract did not provide a date by which McGuirk was to complete the project. The Thomases testified at trial, however, that they told McGuirk they wanted the addition finished by the end of May and that McGuirk assured them that the job would be done by then. Within a few days of signing the contract, McGuirk removed some fencing around the building, tore out an existing concrete porch pad, and had various construction materials delivered to the site. For three weeks thereafter, McGuirk did no further work on the addition. When the Thomases asked McGuirk why the job was not progressing, McGuirk stated that he was having problems obtaining a building permit from the City of Alabaster.

On May 28, 1996, Mrs. Thomas received a telephone call from Mike Kent, the city building official. Kent told Mrs. Thomas that McGuirk was unable to get a building permit because he was not a licensed contractor, but that another person, Don Martin, had "applied for a permit for Mr. McGuirk." Mrs. Thomas questioned Kent about the propriety of another person's getting the permit for McGuirk and she said Kent "assured [her] that it was legal for Mr. Martin to get the building permit."

Mike Kent testified that a general contractor's license is required for a commercial building project worth $20,000 or more.¹ Kent said, however, that McGuirk was not required to have a general contractor's license in order to obtain a building permit for the TLC construction project because the amount of the TLC contract was $19,610; therefore, the cost was below the $20,000 statutory threshold. According to Kent, McGuirk was required to have a city business license in order to obtain a building permit.² Kent stated that McGuirk's application for a building permit was denied because he did not have a city business license, not because he did not have a State general contractor's license. Kent explained that although Martin—like McGuirk—was not a licensed general contractor, he did have a city business license and that that is how he was able to obtain the building permit for McGuirk. Kent testified that he had known Martin for 8 to 10 years, that he and Martin were business partners in a real estate development known as Kentwood, and that his office had performed the building inspections for the residential construction in Kentwood.

At trial, McGuirk admitted that he had neither a general contractor's license nor a city business license. He said that he thought his application for a building permit was rejected because he was not a licensed general contractor. He stated that he was told by someone in the city building official's office that "it was [a] twenty thousand dollar [contract] and [he] had to be a general contractor" in order to obtain a building permit.

Don Martin acknowledged that he, too, was not a licensed general contractor. He testified that he had agreed to obtain a building permit for McGuirk, even though he did not know McGuirk or the Thomases, because his wife, who was acquainted with McGuirk's wife, asked him to help McGuirk. In applying for the permit, Martin signed the following statement:

"I certify that I have read this document and state that the information is correct. I agree to comply with all local ordinances and state laws relating to building construction, and hereby authorize representatives of the City of Alabaster to enter upon the above-mentioned property for inspection purposes."

The building permit states, in pertinent part, the following:

"This permit is issued subject to compliance with all requirements of the building code and all pertinent laws and ordinances of the City of Alabaster regulating the use and construction of structures and the work authorized by this permit. Otherwise it shall be void and the party liable to such penalties as may be provided for violation of said ordinances."

The building permit was issued on May 28, 1996, and McGuirk began construction. Two months later, McGuirk was still not finished with the project and the Thomases were becoming impatient with McGuirk's tardiness in completing the job. During the month of June, they made two more payments, of $2,000 and $3,000, to McGuirk. On July 26, 1996, the Thomases turned to Don Martin and demanded that Martin finish the construction on behalf of McGuirk. They sent Martin a "punch list" containing numerous items that, they claimed, were either defective or incomplete. Martin forwarded the "punch list" to McGuirk, informed the Thomases that he did not have a contract with them, and told them that they should look to McGuirk to complete the job. The Thomases then sent McGuirk a letter demanding that he finish the addition by August 2 at 4:00 p.m., or leave the job and they would hire another contractor to complete the project.

It is undisputed that McGuirk remedied some, but not all, of the items on the "punch list" and left the job on August 3. At that time, the Thomases paid him $2,000. The Thomases then engaged other workmen to complete what they considered remained to be done on the addition.

At trial, the Thomases presented the testimony of G. Alvon Dampier, an architect the court recognized as an expert witness. Dampier testified that the plans and specifications for the TLC addition were deficient. He pointed out examples of numerous city, state, and federal building-code violations in the work. He gave his opinion that the materials were defective and that McGuirk's workmanship was inferior. McGuirk conceded that there were building-code violations in the project, but he claimed that change orders requested by the Thomases made building-code compliance impossible. He also presented evidence that the addition had passed the final inspection by Mike Kent, the city building inspector; had been approved by the fire marshal; and had been accepted by the Department of Human Resources, the agency that oversees the operation of day-care centers in Alabama.

I.

The Thomases contend that the trial court erred by charging the jury on contributory negligence. They argue that Martin breached both a contractual duty and a duty of due care to them. They maintain that the contributory negligence charge was error, first, because contributory negligence is not a defense to a contract claim and, second, because under the particular facts of this case contributory negligence was not a defense to their particular negligence claims.

A. The Contract Claim Against Martin

At trial, Mike Kent and June Webb, a clerk in the Alabaster Building Inspection Services Department, testified that by obtaining the building permit for McGuirk, Martin assumed a duty to the City of Alabaster: to see that the work met code requirements and was performed in a good and workmanlike manner. The Thomases argue that Martin had a contractual duty to them as third-party beneficiaries of Martin's agreement with the city. That argument does not appear to have been raised before in Alabama cases, but other courts that have considered it have rejected it on one of two grounds, namely: (1) that there was no...