Ridnour v. Brownlow Homebuilders, Inc.

100 So. 3d 554, 2012 WL 887479, 2012 Ala. Civ. App. LEXIS 69
CourtCourt of Civil Appeals of Alabama
DecidedMarch 16, 2012
Docket2100851
StatusPublished

This text of 100 So. 3d 554 (Ridnour v. Brownlow Homebuilders, Inc.) 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
Ridnour v. Brownlow Homebuilders, Inc., 100 So. 3d 554, 2012 WL 887479, 2012 Ala. Civ. App. LEXIS 69 (Ala. Ct. App. 2012).

Opinion

MOORE, Judge.

James Andrew Ridnour appeals from a judgment entered by the Limestone Circuit Court (“the trial court”) on a jury’s verdict in favor of Brownlow Homebuild-ers, Inc. (“BHI”), awarding BHI $55,461.96 on its claim of breach of contract and from judgments as a matter of law entered by the trial court on claims asserted by Ridnour against BHI and John David Brownlow. We affirm.

Procedural History

The pertinent procedural history is as follows. In September 2007, BHI sued Ridnour alleging that Ridnour had failed to pay the last installment due under the terms of a residential construction contract and seeking a declaration of the validity and enforcement of a materialman’s lien against the property. Ridnour answered the complaint and asserted counterclaims against BHI alleging, among other things, breach of contract and slander of title. With the approval of the trial court, Ridn-our joined John David Brownlow as a defendant, in his individual capacity, asserting the same claims against Brownlow as had been made against BHI. In May 2009, the trial court granted Ridnour’s motion for leave to amend his counterclaim in order to allege latent defects in the construction of the residence and for a continuance. After the recusal of the first trial judge and several continuances, the case went to trial in April 2011.

The day before jury selection was to begin, the trial court heard arguments ón a motion in limine filed by BHI and Brownlow in August 2010, requesting that the trial court exclude from the trial any arguments or evidence based on the 1997 Standard Building Code. The trial court granted that motion, stating in a written order that

“there existed no building code in the unincorporated areas of Limestone County for the relevant time frame of the case at hand. The State Fire Marshal’s purported adoption of a residential building code has no application to this case.”

[556]*556During the subsequent trial, near the end of the presentation of his case, Ridnour, as an offer of proof made outside the presence of the jury, called Alabama State Fire Marshal Ed Paulk, who testified regarding his office’s adoption of the 1997 Standard Building Code. Ridnour further moved the trial court to take judicial notice of certain state laws and regulations that, Ridnour argued, authorized the State Fire Marshal to adopt the 1997 Standard Building Code. Ridnour further offered expert testimony and exhibits summarizing the alleged violations of the 1997 Standard Building Code committed in the construction of the residence. After receiving the offer of proof, the trial court maintained its ruling on the motion in limine and denied the judicial-notice motion.

At the close of the evidence, Ridnour voluntarily dismissed his breach-of-contract claim against BHI. The trial court disposed of all of Ridnour’s remaining claims against Brownlow and BHI by granting their respective motions for a judgment as a matter of law (“JML”) pursuant to Rule 50, Ala. R. Civ. P. The trial court denied Ridnour’s motion for a JML on the breach-of-contract claim filed by BHI, submitting that claim to the jury.1 After deliberating, the jury returned a verdict in favor of BHI in the amount of $55,461.96, and the trial court entered a judgment on that verdict without objection on April 26, 2011. Ridnour did not file any postjudgment motions, and he timely appealed the trial court’s judgment.2

Issues

On appeal, Ridnour raises eight different issues. We do not reach the sixth issue, in which Ridnour argues that BHI did not present sufficient evidence that it was a party to the residential construction contract, because Ridnour did not properly preserve that issue for appeal. See United Servs. Auto. Ass’n v. Hobbs, 858 So.2d 966, 971-72 (Ala.Civ.App.2008) (recognizing that, when a party wishes to challenge the sufficiency of the evidence, that party must follow the “precise plan” of Rule 50, Ala. R. Civ. P., which requires that the party move for a JML at the close of all the evidence and make a postverdict or renewed motion for a JML). This court will not consider Ridnour’s seventh issue — that the trial court erred in granting the motion for a JML filed by BHI on his slander-of-title claim — because Ridnour does not cite any legal authority in support of that argument. See Rule 28(a)(10), Ala. R.App. P.; and Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (“This court will address only those issues properly presented and for which supporting authority has been cited.”). We also do not reach Ridnour’s eighth issue, in which Ridnour argues that the trial court erred in entering a JML on Ridnour’s claim that the residence was not [557]*557constructed in compliance with the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., again due to Ridnour’s failure to cite any legal authority. Id.

Ridnour’s first five issues all relate to the correctness of the trial court’s ruling excluding any evidence of the applicability of or violations of the 1997 Standard Building Code. We will address those issues because they have been properly preserved, see State v. Askew, 455 So.2d 36 (Ala.Civ.App.1984) (noting that the party seeking review of a denial of a motion in limine generally must make an offer of proof at trial to preserve the issue for appellate review), and argued.

Analysis

On appeal, Ridnour argues that the trial court erred in excluding evidence regarding the 1997 Standard Budding Code because that code had been lawfully promulgated through the office of the state fire marshal and the commissioner of insurance and that code established the mandatory residential construction standards that were applicable statewide at the time of the contract and construction of the residence at issue. We disagree.

Pursuant to § 27-2-10(a), Ala.Code 1975, the state commissioner of insurance “shall prescribe the ... duties of ... a State Fire Marshal.” The commissioner of insurance has not adopted any rules or regulations setting out the duties of the state fire marshal, but those duties are described in Chapter 19 of Title 36 of the Alabama Code of 1975 and, under § 27-2-17(a), Ala.Code 1975, no rule or regulation of the commissioner of insurance “shall extend, modify, or conflict with any law of this state or the reasonable implications thereof.” Thus, the commissioner of insurance would have authority only to prescribe duties of the state fire marshal that are in line with those duties established by the more specific laws regulating the duties of that officer, and the commissioner of insurance cannot confer additional powers on the state fire marshal that have been withheld by the legislature.

The only statute empowering the state fire marshal to adopt regulations of any kind is § 36-19-9, Ala.Code 1975. That section provides:

“The Fire Marshal, subject to the approval of the Commissioner of Insurance, shall make regulations for fire prevention and protection of any construction or building,

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Bluebook (online)
100 So. 3d 554, 2012 WL 887479, 2012 Ala. Civ. App. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ridnour-v-brownlow-homebuilders-inc-alacivapp-2012.