Appeal
from Jefferson Circuit Court (CV-16-902073)
MENDHEIM, JUSTICE.
AFFIRMED.
NO OPINION.
See
Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, and
Stewart, JJ., concur.
MITCHELL, Justice (dissenting).
While I
acknowledge that the Alabama General Contractors Practice
Act, § 34-8-1 et seq., Ala. Code 1975 ("the
AGCPA"), can have severe consequences for those who
perform general contracting work without a license, it is not
clear that the work at issue in this case was, in fact,
general contracting work. Despite being presented with
evidence raising an issue of material fact, the trial court
did not allow the parties to litigate that issue. Instead,
the trial court found dispositive a single item of evidence
that does not resolve the issue at the heart of this dispute.
Because I believe the trial court was wrong to enter a
summary judgment, I respectfully dissent.
Background
On
October 26, 2015, the Birmingham Building Trade Towers
("the Towers"), which was owned by Georgia Holding,
LLC, suffered fire damage. The following day, Georgia Holding
entered into an agreement with CRM Services, LLC
("CRM"), under which CRM agreed to perform,
according to CRM, "mitigation and preservation services
... to prevent the spread of mold and other microbials"
("the M&P agreement"). According to CRM, it
also provided "asbestos abatement services" for
Georgia Holding under what it claims was a separate agreement
("the purported asbestos agreement"). When Georgia
Holding failed to pay in full for CRM's services, CRM
filed a verified claim of lien ("the verified
lien") upon the Towers in the amount of $1, 817, 655.45
for the "mitigation/construction/renovation/
restoration" of the Towers and improvements,
"including ... structural drying, daily moisture
monitoring, and asbestos abatement."
Less
than five months later, CRM sued Georgia Holding to recover
payment under the M&P agreement.[1] CRM attached the verified
lien to its complaint. CRM states in its complaint that it is
not seeking recovery for the work it performed under the
purported asbestos agreement. Georgia Holding, on the other
hand, denies the existence of the purported asbestos
agreement and contends that all of CRM's work was general
contracting work performed under a single agreement.
Only 13
days after answering CRM's complaint, Georgia Holding
moved for a summary judgment. It argued that the M&P
agreement was void as a matter of law because it was a
contract for general contracting work as defined by the AGCPA
and CRM was not licensed as a general contractor in Alabama.
Given the short period between the close of the pleadings and
Georgia Holding's filing of its motion for a summary
judgment, the parties' summary-judgment briefing was
conducted without the benefit of discovery. Although written
discovery requests had been propounded, no responses were
ever served, nor were any depositions taken. The evidence
before the trial court included an affidavit from CRM's
chief executive officer attesting that its asbestos-abatement
work was performed under a separate contract than the M&P
agreement and that CRM did not agree to perform any
construction work when it entered into the M&P agreement.
Nevertheless, the trial court found dispositive the scope of
work described by CRM in its verified lien. The trial court,
without apparent context for the verified lien or the
statements made in that document, concluded in a one-page
order that "[t]his sworn statement by [CRM]
characterizing the scope of its work is clearly governed by
Ala. Code [1975, ] § 34-8-1 et seq. ... and no
attempts by [CRM] to now re-characterize the scope of work
can avail." It accordingly entered a summary judgment
for Georgia Holding as to CRM's claims.
Discussion
According
to the AGCPA, "one engages in the business of general
contracting in the State of Alabama" by undertaking, in
relevant part, "to construct or superintend or engage in
the construction, alteration, maintenance, repair,
rehabilitation, remediation, reclamation, or demolition of
any building ... where the cost of the undertaking is fifty
thousand dollars or more." § 34-8-1(a), Ala. Code
1975. We have long held that contracts for general
contracting work with an unlicensed general contractor are
void as a matter of public policy. See, e.g.,
Architectural Graphics & Constr. Servs., Inc. v.
Pitman, 417 So.2d 574, 576 (Ala. 1982); Hawkins v.
League, 398 So.2d 232, 235 (Ala. 1981); Tucker v.
Walker, 308 So.2d 245, 247 (Ala. 1975). Thus, one who
performs general contracting work without a license may not
recover for that work. Further, we will not enforce contracts
made in an effort to evade the AGCPA. See, e.g.,
Cochran v. Ozark Country Club, Inc., 339 So.2d 1023,
1024 (Ala. 1976).
To
prevail on a nonlicensure defense, as Georgia Holding
attempts to do here, a defendant must prove: 1) that the
contractor was unlicensed; 2) that the contracted work was
the type of work covered by the AGCPA; and 3) that the cost
of the work was at least $50, 000. Tucker, 308 So.2d
at 247; Central Alabama Home Health Servs. v.
Eubank, 790 So.2d 258, 260 & n.3 (Ala. Civ. App.
2000).[2] Because CRM concedes that it is not
licensed to perform general contracting work in Alabama and
that the cost of the work at issue exceeds $50, 000, Georgia
Holding would be entitled to a ...