Tlig Maint. Servs., Inc. v. Fialkowski

• Decision Date: 02 September 2016
• Docket Number: 2150255.
• Citation: 218 So.3d 1271
• Parties: TLIG MAINTENANCE SERVICES, INC., et al. v. Deann FIALKOWSKI.
• Court: Alabama Court of Civil Appeals

218 So.3d 1271

TLIG MAINTENANCE SERVICES, INC., et al.

v.Deann FIALKOWSKI.

2150255.

Court of Civil Appeals of Alabama.

Sept. 2, 2016.

Robert V. Wood, Jr., Matthew T. Dukes, and Elena G. Moats of Wilmer & Lee, P.A., Huntsville, for appellants.

Melissa D. Endsley and Thomas S. McGrath of McGrath Law Firm, Huntsville, for appellee.

THOMPSON, Presiding Judge.

TLIG Maintenance Services, Inc. ("TLIG"), Gala P. Rusich, and Bruce Kitchura (hereinafter referred to collectively as "the defendants") appeal from a judgment entered on a jury verdict in favor of Deann Fialkowski on her claims against TLIG alleging breach of the implied warranty of good workmanship and breach of contract. Based on the jury's verdict, a judgment was entered against TLIG for $27,176 in compensatory damages and $15,000 for mental anguish. Following the jury trial, a separate bench hearing was held after which the trial court entered a final judgment determining that TLIG's corporate veil was due to be pierced and assessing the jury's verdict against Rusich and Kitchura individually.¹ The defendants filed a timely postjudgment motion, which the trial court denied. They then appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975.²

On appeal, the defendants do not challenge the award of compensatory damages. They do, however, argue that the evidence presented at trial was insufficient to support an award of damages to Fialkowski for mental anguish arising from the breach of contract and the breach of the implied warranty of good workmanship. They also argue that the trial court erred in denying their motion for a judgment as a matter of law as to this issue at the conclusion of the evidence presented during Fialkowski's case-in-chief and in denying their renewed motion for a judgment as a matter of law as to this issue at the close of all the evidence in the jury trial.

" ‘In reviewing a jury verdict, an appellate court must consider the evidence in the light most favorable to the prevailing party....’ Delchamps, Inc. v. Bryant, 738 So.2d 824, 831 (Ala.1999). See also Cobb v. MacMillan Bloedel, Inc., 604 So.2d 344 (Ala.1992), and Mason & Dixon Lines, Inc. v. Byrd, 601 So.2d 68 (Ala.1992). A presumption of correctness attaches to a jury verdict, ‘if the verdict passes the "sufficiency test" presented by motions for directed verdict and a JNOV [i.e., judgment notwithstanding the verdict].’ S & W Properties, Inc. v. American Motorists Ins. Co., 668 So.2d 529, 534 (Ala.1995). (Rule 50(a), Ala. R. Civ. P., now designates a motion for a directed verdict as a motion for a judgment as a matter of law, and Rule 50(b) now designates a motion for JNOV as a renewed motion for a judgment as a matter of law.) This presumption is strengthened by a trial court's denial of a motion for a new trial. Christiansen v. Hall, 567 So.2d 1338 (Ala.1990). ‘This Court will not, on a sufficiency of the evidence basis, reverse a judgment based on a jury verdict unless the evidence, when viewed in a light most favorable to the [verdict winner], shows that the verdict was "plainly and palpably wrong and unjust." ’ S & W Properties, 668 So.2d at 534 (quoting Christiansen, 567 So.2d at 1341 ). ‘Whether to grant or deny a motion for new trial rests within the sound discretion of the trial court, and this Court will not reverse a ruling in that regard unless it finds that the trial court's ruling constituted an abuse of that discretion.’ Colbert County–Northwest Alabama Healthcare Authority v. Nix, 678 So.2d 719, 722 (Ala.1995). ‘Without a showing of such an abuse, the trial court's ruling must be affirmed.’ Id. "

Liberty Nat'l Life Ins. Co. v. Sanders, 792 So.2d 1069, 1072 (Ala.2000).

" ‘A judgment as a matter of law is proper only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ and the moving party is entitled to a judgment as a matter of law.’ Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303, 304 (Ala.1997) (internal quotations and alterations omitted). In reviewing the denial of a motion for a judgment as a matter of law, this Court must view all evidence in the light most favorable to the nonmoving party. See Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988)."

Southern Energy Homes, Inc. v. Washington, 774 So.2d 505, 510–11 (Ala.2000).

The evidence adduced at trial tends to demonstrate the following facts relevant to the issue of the propriety of an award of damages for mental anguish. Fialkowski purchased her house in Huntsville in May 2007. She testified that the outside of the house "was looking pretty rough" and that there was construction work and repairs she wanted done on the house, including the replacement of exterior siding and two decks, repairs to a leaking chimney, and the addition of a screened-in porch to the back of the house. She said that she estimated the cost of the projects to be about $35,000, and she saved money for several years to pay for them. After three years, she said, she had saved $20,000.

Fialkowski worked as a nurse at a local hospital. During a discussion about the work she wanted to have done on the house, Fialkowski said, one of her coworkers, Rusich, who is also a nurse, told her that she and her boyfriend, Kitchura, "had a company" and that Kitchura was a contractor. When Fialkowski believed she had saved a sufficient amount of money to begin the projects, she said, she told Rusich she would like to talk with Kitchura.

After meeting and discussing her plans, Fialkowski said, she and Kitchura entered into a contract on March 14, 2013, for numerous repairs to the house, including the installation of new shutters, doors, and exterior siding, as well as the construction of an upper and lower deck or porch. The upper deck was to be enclosed underneath to create a dry storage room. The lower deck was to be screened in, with a "lean-to" roof.

On April 4, 2013, Kitchura accompanied Fialkowski to complete the application for the building permit required for the project. Kitchura testified that he filled out the application, which indicated that the job was to consist of only repair work and that the total cost of the "alterations or additions" was to be $5,300. Kitchura acknowledged that TLIG's business license permitted him to paint, wallpaper, and do drywall and Sheetrock work and that the work Fialkowski wanted completed was beyond the scope of TLIG's business license. He also admitted that neither he nor TLIG was permitted to enter into a contract for more than $10,000 because he did not have a homebuilder's license. Based on the information provided on the application, however, the building permit was issued on April 11, 2013.

Work on Fialkowski's house began in April 2013 and proceeded over a period of many months, including times when no work was being done on the house at all. Fialkowski testified that, as construction progressed, she had concerns about how stable the structure was and about the amount of head space there would be once the roof was placed on the porch. She said that, when she expressed her concerns to Kitchura, he assured her that everything would be fine. She also had to remind Kitchura that the porch was to be screened in. Fialkowski said that, because of her concerns, she contacted the building inspector's office for the City of Huntsville.

On December 27, 2013, Claire Davies, a building inspector with the City of Huntsville, went to Fialkowski's house to assess the work in progress. Davies testified that she saw that concrete slabs had been poured and learned that decks that, according to the building permit, were only to be repaired were actually being replaced. Davies said that she noticed the deck under construction had tall posts, so she asked Fialkowski about what was being built. Fialkowski told Davies that the lower deck was to be a screened-in porch attached to the house and that the upper deck was to be a "story-up deck." That work exceeded the scope of the building permit, Davies said.

Davies testified that her inspection showed that the work that had been done on the deck up to that point failed to comply with the International Residential Building Code ("the building code"). Davies said that the building code sets forth minimum standards required for the construction of one- and two-family residences and that it governs structures, including framing and footings, but does not include electrical or mechanical standards. Because the screened-in porch was to have a roof, it was considered part of the structure, Davies said.

Davies said that, during her inspection, she noted that soil had been brought to the construction site. She explained that engineers needed to ensure that the soil where the structure was being built could support the load, that the soil had to meet certain compaction rates, and that the footings of the structure had to be a certain depth. The purpose of such requirements, Davies said, was to ensure that the house would remain stable as the ground changed and moved with moisture. Davies said that there was no footing at all under the concrete slab poured for what was to be the screened-in porch and that, therefore, the construction failed to meet the building code. The framing for the porch was not complete at that point, Davies said, but, she stated, the girders used to support the floor joists underneath the porch did not meet building-code requirements. Davies also noted other building-code violations regarding the way the steps and handrail had been constructed. Davies said that she suggested ways that the proper footings and girders could be added so that the structure could be brought into compliance with the building code without the need to remove what had already been built.

Fialkowski said that, after Davies inspected the construction, she contacted Kitchura. He told Fialkowski that he needed more money to...