Childs v. Pommer

348 So.3d 379

Paul CHILDS and Granger Construction Company, LLC

v.Harry J. POMMER and Brenda S. Pommer

Harry J. Pommer and Brenda S. Pommer

v.Melissa T. Granger, as administratrix of the Estate of Daniel D. Granger, deceased

1190525

1190580

Supreme Court of Alabama.

September 3, 2021

D. Robert Stankoski, Jr., and Joshua P. Myrick of Stankoski Myrick, LLC, Fairhope, for appellants Paul Childs and Granger Construction Company, LLC, and appellee Melissa T. Granger, as administratrix of the Estate of Daniel D. Granger, deceased.

David P. Shepherd, Fairhope, for appellees/cross-appellants Harry J. Pommer and Brenda S. Pommer.

WISE, Justice.

In case number 1190525, two of the defendants below, Paul Childs and Granger Construction Company, LLC ("Granger Construction"), appeal from a judgment the Baldwin Circuit Court entered in favor of the plaintiffs below, Harry J. Pommer ("Bud") and Brenda S. Pommer. In their cross-appeal, case number 1190580, the Pommers appeal from the trial court's judgment entered in favor of another of the defendants below, Melissa T. Granger ("Melissa"), as the administratrix of the estate of Daniel D. Granger ("Granger"), deceased.

Facts and Procedural History

In 2014, the Pommers decided to build a garage on property that they owned in Fairhope. Bud testified that he initially contacted a contractor he knew about building the garage, that contractor did not do that type of work, and that contractor recommended Childs to him. Bud testified that he telephoned Childs, that he told Childs that he and Brenda wanted to build a garage in front of their house, that he asked Childs if he was interested in doing the job and if he could do it, and that Childs said that he could.

The Pommers subsequently met with Childs at their house. Bud testified that his initial concern was whether they could build a garage in front of the house. Bud testified that Childs said that he would contact the proper authorities with the City of Fairhope ("the City") to find out and then get back with them. Bud testified that, after that initial meeting, Childs did some work for them regarding the design of the garage. Initially, after checking with the City, Childs told the Pommers that the garage could be built in front of their house. Childs worked on some sketches and ultimately came up with a computer generated-drawing of the garage. Childs gave the Pommers invoices dated July 2014 and September 29, 2014. Childs's name was on the top of both invoices. The first invoice was for "Preliminary Design Work for Garage Addition," and the second invoice was for "Secondary Design Work for Garage Addition." The Pommers paid both invoices by checks made payable to Childs.

Childs subsequently gave the Pommers an estimate dated October 14, 2014, for constructing a garage in front of their house. Evidence was presented indicating that Childs took some sketches of the garage to the City for approval. However, the City informed Childs that a garage could not be built in front of the Pommers’ house unless it was attached to the house. Because the Pommers were using their existing garage for other purposes, they still needed another garage. Therefore, they continued to work with Childs to come up with a new location and a new design for the garage.

Evidence was presented indicating that Childs subsequently prepared a set of plans for a garage to be built behind the Pommers’ house with a breezeway connecting the garage to the house. That set of plans was marked as plaintiffs’ exhibit 5 ("the original plans"). Evidence was presented indicating that the original plans included a brick ledge for the exterior bricks of the garage to be placed upon. Childs submitted plans for the garage to John Peterson, an engineer, because the City required that the plans have an engineer's stamp approving the plans. Childs testified that he chose Peterson as the engineer. The plans stamped by Peterson, which were plaintiffs’ exhibit 6, were submitted to and approved by the City ("the approved plans"). The approved plans did not include a brick ledge.

The Pommers met with Childs again on December 10, 2014, after the plans were approved. The Pommers testified that only the three of them were present at that meeting, that Childs presented them with an estimate for building the garage, that the estimate indicated that the total cost for the project was $65,874, and that the estimated time for completion of the project was four to five weeks. The estimate further stated that 20% of the total cost would be required to start work and that payments would be based on a draw schedule. However, the Pommers never received a draw schedule. Bud testified that he told Childs that the Pommers wanted to move forward with the project and that they arranged a meeting for the following day to sign a contract with Childs.

The Pommers testified that Childs brought Granger with him to the meeting on December 11, 2014. The Pommers testified that they had never met or heard of Granger before that meeting and that they were surprised when he showed up at that meeting. The Pommers presented evidence indicating that, during that meeting, Childs told them that he did not have a contractor's license and that he needed Granger because he was a licensed contractor. The Pommers testified that, during that meeting, they were given a "cost plus" contract for the construction of the garage and breezeway ("the contract"). Granger Construction was listed as the contractor, and the Pommers were listed as the owners. The description of the work included the following:

"Contractor will furnish all labor, equipment, and material to construct and complete in a good workmanlike and substantial manner, the following work of improvement:

"Garage as shown in the attached plans. Covered walk as detailed in plans

"Estimated price of project is $65,874.00

"This is a good faith estimate based upon market pricing and bids by subs/suppliers. This figure does include 10% profit and 5% overhead."

The contract was executed during that meeting on December 11, 2014. It was signed by Brenda as an owner. The signature line for the contractor listed Granger Construction, and it was signed by Granger. At that time, the Pommers gave Granger Construction a $13,000 check for the first draw.

Construction started on the project around the middle of December 2014. Evidence was presented indicating that, during the construction process, the Pommers were presented with five invoices from Granger Construction: one for a $10,000 draw on December 30, 2014; one for a $10,000 draw on January 9, 2015; one for a $10,000 draw on January 26, 2015; one for a $10,000 draw on February 11, 2015; and one for a $13,000 draw on March 10, 2015. The Pommers testified that Childs and Granger were present when the invoices were presented to them and that Childs predominantly did most of the talking and explaining regarding the draws. The Pommers paid each of those invoices with checks made payable to Granger Construction. Between December 11, 2014, and March 10, 2015, the Pommers paid Granger Construction a total of $66,000.

The evidence presented at trial indicated that the project experienced significant delays. Evidence was presented indicating that some of the delays were caused by the weather and because subcontractors for the project were backed up. Evidence was also presented indicating that the Pommers requested some changes to the project, which contributed to some of the delays. Evidence was presented indicating that Granger and Childs performed some of the physical labor on the project, including digging the footings and putting up framing for the slab for the garage. Bud testified that, as the project dragged on, he began to wonder why Granger and Childs were doing the work at the speed they were doing it instead of hiring subcontractors who could have done the work faster. He further testified that he saw work done by Childs and Granger that had to been redone. Evidence was presented about issues that had arisen with the concrete for the breezeway, about the Pommers’ dissatisfaction with the finish of the concrete, and about Childs's own dissatisfaction with the finish of the concrete.

Bud testified that, at the time the March 10, 2015, invoice was presented to the Pommers, he and Brenda told the Childs and Granger that they did not want to give them another check based on how things had been going and because they wanted to be sure the job would be finished. Bud testified that he and Brenda went out of town around the first or second week of March and that they expected that the work would be complete when they got back. Bud testified that, when they returned, he observed that light fixtures were attached to the garage, but the wiring was hanging down; that gates on the breezeway had been started, but were not completed; that the work on the driveway and turn around had not progressed; that painting had been started on the doors to the garage, but were not completed; and that the hardware had not been installed on the doors. He further testified that it appeared that a lot of work had been started, but not finished.

When asked if he or Brenda raised these issues with Childs or Granger, Bud testified that Childs and Granger were not very talkative and that Childs subsequently told him that they needed to have a meeting. The Pommers met with Granger and Childs at their kitchen table. During the meeting, Childs and Granger told the Pommers that they needed an additional draw and that they could not do any additional work without more money. The evidence established that the meeting became heated. At one point, Granger made the statement to Brenda: "[M]y daughter rolls her eyes like that, and it pisses me off when she does it too." The Pommers testified that, at one point, Childs turned his chair around, was leaning over Brenda, and was screaming and yelling in her face. Bud testified that Childs appeared to be angry, that Childs's "eyes were...