Collins v. Burns

666 So. 2d 530, 1995 Ala. Civ. App. LEXIS 376, 1995 WL 429085
CourtCourt of Civil Appeals of Alabama
DecidedJuly 21, 1995
Docket2940207
StatusPublished
Cited by1 cases

This text of 666 So. 2d 530 (Collins v. Burns) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collins v. Burns, 666 So. 2d 530, 1995 Ala. Civ. App. LEXIS 376, 1995 WL 429085 (Ala. Ct. App. 1995).

Opinion

YATES, Judge.

Larry Collins sued Bruce Burns, doing business as Hanceville Insulation Company, alleging that Burns had failed to insulate Collins’s office building as promised, thereby breaching their agreement and causing Collins to lose money that he had paid to Burns for materials and labor, as well as the money that he would have saved in energy costs had the office been properly insulated. He also alleged that Burns had made fraudulent misrepresentations to him and that he had relied upon those misrepresentations to his detriment. The case was tried before a jury; at the close of Collins’s evidence, the judge directed a verdict in favor of Burns.

Collins appeals, contending that the trial court erred in: (1) directing a verdict for Burns on the contract and fraud claims; (2) excluding certain testimony Collins says was relevant; and (3) holding that the statutory limitations period for a fraud action had expired. We address the first two arguments together, because they are interrelated.

“The standard of review applicable to a directed verdict is whether the nonmoving party has presented substantial evidence in support of his position. If he has not, then a directed verdict is proper. Moreover, whether to direct a verdict is not a matter within the discretion of the trial court; on review, no presumption of correctness attaches to such a ruling.
“Our function on review of a directed verdict is to review the entire evidence, and all reasonable inferences that a jury might have drawn therefrom, in the light most favorable to the nonmoving party, and if we conclude that a jury could have drawn reasonable inferences supporting the nonmoving party’s claim, then we must reverse the judgment based on the directed verdict. To satisfy the ‘substantial evidence test,’ the nonmoving party is required to present ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ”

Stewart v. Jones, 614 So.2d 1023, 1026 (Ala.1993) (citations omitted).

In September 1987, Collins contacted Burns to inquire about the cost of insulating his office. Bums inspected the building and thereafter entered into an oral contract with Collins to install insulation in the attic, floor, and walls for $1175.00. After Burns insulated the building, Collins paid Burns the contract price.

In the spring of 1993, while remodeling his office, Collins contacted Burns to inform him that neither the attic nor the walls were adequately insulated. Collins testified that [533]*533he was present when the carpenters first began removing siding from the braiding, and that he discovered that there was no insulation along the back wall.

Burns testified that because it was an older building, the walls opened into the attic, and that insulation could be blown from the attic down into the walls without removing the outside siding. He testified that insulation is fed from compressed bags into a machine that grinds the insulation and blows it through a hose.

Burns also testified that Collins had told him that if he would furnish batt insulation, or blanket-type insulation, presumably as a remedial measure, the carpenters working on the remodeling of the office would install it, and that that would satisfy Collins. Burns further testified that Collins wanted the batts of insulation installed in stages, as the remodeling progressed, and that he provided Collins with enough insulation to insulate approximately one-half of the office.

“In order to recover for breach of agreement, the plaintiff has the burden of showing that an agreement existed; that the defendant breached that agreement; and that plaintiff was damaged by the breach.” Cocke v. Odom, 385 So.2d 1321, 1322 (Ala. Civ.App.1980).

“To withstand a directed verdict on a fraud claim, be it fraud of the willful, reckless, or innocent variety, the plaintiff must show a false representation by the defendant concerning a material existing fact that the plaintiff relied on to his damage.” Auburn Ford, Lincoln Mercury, Inc., v. Norred, 541 So.2d 1077, 1080 (Ala.1989). The testimony of both parties indicates that they entered into an agreement for Burns to install insulation in Collins’s office. However, the parties offered conflicting testimony regarding the terms of the contract and whether the contract was breached. Collins testified that Burns stated that Burns generally would place 12 inches of insulation in an attic, while Burns testified that the contract called for 5 inches. Collins testified that there were several places in the attic that were not insulated at all, and that the insulation was less than what the parties had agreed upon.

Collins testified on cross-examination, while examining a photograph of a part of the building where the carpenters had removed some of the siding, that there was “a very light bit” of insulation along the bottom of the wall and on the ground below. He also stated that if insulation had been in the walls, it would have fallen out or would have been blown out when the siding was removed.

Susan Lott, who worked for Collins, testified that she was present when the carpenters removed the siding boards and that there was little or no insulation underneath. She did, however, testify that she did not observe all of their work, but that she did observe a small amount of insulation fall from the walls as the carpenters worked.

In moving for a directed verdict, Burns first argued that Collins had failed to present any evidence of damage sustained as a result of the alleged breach of contract. Collins contends that he presented evidence of damage and that the trial court erred in refusing to allow him to introduce relevant testimony regarding the damage he claims to have incurred. We agree.

“[Our supreme court] has determined that a plaintiff attempting to establish damages in a breach of contract action need only ‘ “lay a foundation which will enable the trier of the facts to make a fair and reasonable estimate of the amount of damage.” ’ ” Mason & Dixon Lines, Inc. v. Byrd, 601 So.2d 68, 70 (Ala.1992) (citations omitted).

Under the rule of relevancy sanctioned by the Alabama appellate courts, “a fact is admissible if it has any probative value, however slight, upon a matter in the case.” Charles W. Gamble, McElroy’s Alabama Evidence § 21.01(1) (4th ed. 1991). However, the trial court has the discretion to exclude relevant evidence that is speculative or of little probative value. See Turner v. Azalea Box Co., 508 So.2d 253 (Ala.1987).

After thoroughly reviewing the record in a light most favorable to Collins, we conclude that Collins presented substantial evidence of breach of contract and fraud. Given the testimony of Collins and Lott re[534]*534garding the absence of insulation in the walls and attic, along with the fact that Collins had paid Bums the contract price, the jury could have made a fair and reasonable estimate of the amount of damage Collins sustained. Also, Collins’s evidence regarding the amount he had paid for additional insulation used in the remodeling of his office — which evidence the court did not admit — was relevant to the issue whether Collins had sustained damage. A substantial amount of wall space of the existing building was removed, requiring new insulation.

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Bluebook (online)
666 So. 2d 530, 1995 Ala. Civ. App. LEXIS 376, 1995 WL 429085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-burns-alacivapp-1995.