A & W Contractors, LLC v. Jameson Colbert and Katherine Colbert (Appeal from Jefferson Circuit Court: CV-20-900370).

Rel: September 13, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
SPECIAL TERM, 2024

_________________________

SC-2024-0037
_________________________

A & W Contractors, LLC

v.

Jameson Colbert and Katherine Colbert

Appeal from Jefferson Circuit Court
(CV-20-900370)

SELLERS, Justice.

A & W Contractors, LLC ("A&W"), appeals from a judgment in favor

of Jameson Colbert and Katherine Colbert in the Colberts' action against
SC-2024-0037

A&W arising out of a real-estate sales contract. We affirm in part,

reverse in part, and remand.

I. Facts and Procedural History

In February 2019, the Colberts entered into a real-estate sales

contract ("the contract") with A&W to purchase an approximately 54-

year-old house that A&W had remodeled. 1 Before the closing, the

Colberts had a home inspection, which revealed that the plumbing and/or

septic system was "backed up and failing to drain properly" and that the

electrical wiring was not "up to code." Regarding the electrical wiring,

the Colberts claimed that certain areas of the house were wired with

antiquated "fabric-sheathed" wire connected to 2-prong, nongrounded

outlets and that A&W had installed 3-prong outlets that were not

grounded in other areas of the house. The Colberts deemed the issues

with the electrical, plumbing, and septic systems nonnegotiable.

Accordingly, the parties amended the contract to reflect that A&W agreed

to (1) inspect all three-prong outlets to confirm that they were properly

grounded, (2) install ground-fault breakers, (3) have a plumber "re-route

1Katherine Colbert's mother, Laura D. Grill, was also a signatory

to the contract; however, she is not a party to this appeal.
2
SC-2024-0037

Temp & Pressure Relief valve plumbing to ensure[, among other things,]

proper sloping and runoff" and confirm that the plumbing will "follow

code," and (4) furnish the "recent septic cleaning and inspection" report.

After A&W represented that it had addressed the issues with the

electrical and plumbing systems, the Colberts had those systems

reinspected. According to the Colberts, their inspector told them that the

plumbing was draining and that the electrical outlets "tested for ground."

During their final walk-through inspection of the house, however, the

Colberts remained hesitant about the house's electrical wiring, and they

decided to cancel the contract. According to Jameson Colbert, A&W's

real-estate agent thereafter sent Katherine Colbert a text message

informing her that A&W had "offered" a three-month builder's warranty

on the remodeling work in the hope that the parties could move forward

with the closing. The Colberts thereafter closed on the sale of the house;

however, after moving into the house, and within the alleged three-

month warranty period, they began to experience significant problems

with the electrical, plumbing, and septic systems.2 The Colberts initially

2According to the Colberts, (1) the outlets had not been properly

grounded but, rather, had been manipulated to make it appear that,
when tested by a circuit-breaker-tester tool, they were grounded; (2)
3
SC-2024-0037

contacted A&W about the electrical issues; A&W sent an electrician to

the house to address those issues. However, when the Colberts contacted

A&W about the plumbing issues and requested that those issues be

repaired under the three-month builder's warranty, A&W denied the

existence of a builder's warranty. The Colberts had no more contact with

A&W; rather, they spent approximately $90,000 to have the issues with

the plumbing, electrical, and septic systems repaired. The Colberts then

commenced this action, which proceeded to a jury trial. At trial, the

Colberts took the position that they would not have purchased the house

if they had known that A&W would not honor the three-month builder's

warranty. A&W, on the other hand, took the position that the parties'

contract was conclusive as to all issues and that, pursuant to the plain

terms of the contract, the Colberts had, among other things, assumed all

risks as to the condition of the house upon the closing. At the close of the

Colbert's evidence, A&W moved for a judgment as a matter of law

there was an active leak in the upstairs bathroom, which caused
extensive damage to the ceiling in the downstairs bathroom, causing it to
collapse; (3) after the floor of the upstairs bathroom had been cut open to
determine the cause of the leak, Jameson Colbert observed, among other
things, cut joists, an inadequately sized drain, and the absence of a
shower pan; and (4) the septic system was backed up and had not been
cleaned out or inspected as represented by A&W.
4
SC-2024-0037

("JML"), pursuant to Rule 50, Ala. R. Civ. P. The trial court denied that

motion. At the close of all the evidence, the Colberts moved for a JML on

their breach-of-contract claim. The trial court initially denied that motion

but, after a brief recess, ruled that, as a matter of law, A&W had

breached the contract. The case proceeded to the jury on claims of

fraudulent misrepresentation and fraudulent concealment and for a

determination of damages on the breach-of-contract claim. The jury

awarded the Colberts $32,208.50 on the breach-of-contract claim. It also

returned a verdict in their favor on the fraud claims, awarding them

$32,208.50 in compensatory damages and $30,000 in punitive damages.

The trial court entered a judgment on the jury verdict. A&W filed a

motion to alter, amend, or vacate the judgment or, alternatively, for a

new trial, which the trial court denied. This appeal followed.

II. Standard of Review of a JML

"When reviewing a ruling on a motion for a JML, this
Court uses the same standard the trial court used initially in
granting or denying a JML. Palm Harbor Homes, Inc. v.
Crawford, 689 So. 2d 3 (Ala. 1997). Regarding questions of
fact, the ultimate question is whether the nonmovant has
presented sufficient evidence to allow the case or the issue to
be submitted to the jury for a factual resolution. Carter v.
Henderson, 598 So. 2d 1350 (Ala. 1992). For actions filed after
June 11, 1987, the nonmovant must present substantial
evidence in order to withstand a motion for a JML. See § 12-
5
SC-2024-0037

21-12, Ala. Code 1975; West v. Founders Life Assurance Co.
of Florida, 547 So. 2d 870, 871 (Ala. 1989). A reviewing court
must determine whether the party who bears the burden of
proof has produced substantial evidence creating a factual
dispute requiring resolution by the jury. Carter, 598 So. 2d at
1353. In reviewing a ruling on a motion for a JML, this Court
views the evidence in the light most favorable to the
nonmovant and entertains such reasonable inferences as the
jury would have been free to draw. Id. Regarding a question
of law, however, this Court indulges no presumption of
correctness as to the trial court's ruling. Ricwil, Inc. v. S.L.
Pappas & Co., 599 So. 2d 1126 (Ala. 1992)."

Employees' Benefit Ass'n v. Grissett, 732 So. 2d 968, 974-75 (Ala. 1998).

III. Discussion

A. The JML on the Breach-of-Contract Claim

The first issue raised by A&W is whether the trial court erred in

entering a JML in favor of the Colberts on their breach-of-contract claim.

The Colberts claimed that A&W had breached the contract by failing to

provide a septic-system report and by failing to repair the electrical and

plumbing issues. In a breach-of-contract action, the plaintiff must prove

"(1) the existence of a valid contract binding the parties in the action, (2)

his own performance under the contract, (3) the defendant's

nonperformance, and (4) damages." Southern Med. Health Sys., Inc. v.

Vaughn, 669 So. 2d 98, 99 (Ala. 1995). The parties do not dispute the

existence of a valid contract or that the purchase of the house was
6
SC-2024-0037

governed by that contract. See Kidd v. Benson, 321 So. 3d 676, 681 (Ala.

2020) (plurality opinion) ("The language of a real-estate sales contract

defines the responsibilities of each party to the contract."). Although the

record indicates that the Colberts had identified approximately 20

witnesses on their witness list, only Jameson Colbert testified regarding

the breach-of-contact claim. Jameson testified, in relevant part, about the

repairs that A&W had agreed to perform under the contract, the

problems that the Colberts had experienced with the electrical,

plumbing, and septic systems after moving into the house, and the costs

associated in repairing those systems. After the Colberts rested their

case, A&W did not provide any witness testimony. Rather, it relied

primarily on Jameson's testimony elicited on cross-examination

regarding his knowledge and understanding of certain provisions of the

contract the Colberts had signed. For example, counsel for A&W

questioned Jameson about an addendum to the contract that was signed

by all the parties. Provision A of the addendum originally stated that the

Colberts and A&W "agree to meet at the property … on Friday, April 19,

2019[,] to review the repairs." Provision A was crossed out and replaced

with the following language: "Repairs have been approved by buyers as

7
SC-2024-0037

of Friday, April 19th." Provision B of the addendum states: "If all repairs

are found agreeable by both parties, Buyers and Seller agree to closing

by 5 p.m. on Monday, April 29, 2019." The closing occurred on April 29.

When questioned by defense counsel about the addendum, Jameson

testified:

"[Defense counsel]: And you understood, again, that you
were to be bound by the terms of the contract, correct?

"[Jameson]: Yes.

"[Defense counsel]: And you signed off … you signed off
on all the repairs being done and they were acceptable to you,
correct?

"[Jameson]: Correct."

Jameson also admitted to initialing paragraph 21 of the contract

pertaining to the final walk-through inspection. That paragraph states

in bold writing, in relevant part, that, "[a]fter closing, all conditions of

the property are the responsibility of the [Colberts] unless otherwise

stated within this Contract." Jameson also testified that, although the

contract required A&W to produce an inspection report regarding the

health of the septic system, he and his wife had closed on the sale without

the report because, according to him, they were ready to move in. In

fact, there was no testimony indicating whether the Colberts requested
8
SC-2024-0037

the septic-system report at the closing. Finally, although the Colberts

claimed that they would not have purchased the house had they had

known there was not a three-month builder's warranty, Jameson

acknowledged that he had initialed paragraph 30 of the contract, stating

that neither the buyer, the seller, nor any real-estate agent "shall be

bound by any … representation concerning the property … not specified

herein …." When questioned by defense counsel, Jameson admitted that

there was no provision in the contract regarding a builder's warranty:

"[Defense counsel]: Okay. And nowhere in this contract
or its addendums anywhere does it discuss or specify a [three-
month builder's warranty], correct?

"[Jameson]: We did not want to rewrite the contract.

"[Defense counsel]: Well, my question is: It's not in
here, correct?

"[Jameson]: Correct.

"….

"[Jameson]: We took [the contractor] at his word.

"[Defense counsel]: All right. Now, again, the
representation [about the three-month builder's warranty]
was made by [A&W's real-estate agent], correct?

"[Jameson]: Who represents him."

9
SC-2024-0037

As previously indicated, at the close of all the evidence, the Colberts

moved for a JML on their breach-of-contract claim. The trial court

initially denied the motion but, after a brief recess, changed course and

granted it. According to A&W, the trial court granted the motion for a

JML based on A&W's failure to offer any witness testimony, thus

improperly shifting the burden to A&W:

"[Defense counsel]: Well, Your Honor, I believe based on
what's been presented to the Court, obviously, [A&W] would
[submit] that it is a factual question … whether or not each
one of the paragraphs that was read into the record by
[Jameson] in cross-examination would present a factual
question as to [which] terms of the contract were breached.

"[The trial court]: I think that [it is] still your
responsibility to argue that to the jury and then that's the
ultimate decision.

"[Defense counsel]: … The [Colberts have] the burden
in this case throughout to show not only the facts, but to reach
that legal burden of what constitutes a contract and then
what constitutes … a breach of contract.

"[The trial court]: When you offered no testimony, then
that was definitely a surprise because it left a lot -- my
interpretation then had to be of what was before me, cross-
examination and direct examination, and I just find there was
a breach of contract, that all of the elements are there, and
that should not be for the jury …."

In Lavett v. Lavett, 414 So. 2d 907, 911-12 (Ala. 1982), this Court

explained the following regarding the burden-shifting process:
10
SC-2024-0037

"Prima facie evidence may be defined as evidence which
suffices for proof of a particular fact until the fact is
contradicted by other evidence. Tittle v. State, 252 Ala. 377,
41 So. 2d 295 (1949). Prima facie evidence is the quantum of
evidence necessary to prevent an action from being dismissed
for failure to state a claim. See J. Hazard, Civil Procedure
(1978). If no other evidence is submitted to contradict the
prima facie evidence, the party presenting the evidence is
entitled to judgment. In other words, a prima facie case meets
the party's burden of proceeding, and if no contradictory
evidence is permitted, it also meets his or her burden of proof.

"The burden of proof does not shift to the other party by
presentation of a prima facie case. The burden of proof
remains with the plaintiff. If the other party introduces
evidence to contradict the prima facie evidence, that party has
met its burden of proceeding, and the issue is in the domain
of the factfinder. It is only when a party presents a certain
high quantum of evidence that establishes no doubt as to his
or her right to a verdict, that a [JML] may be granted in the
party's favor."

(Emphasis added.)

The Colberts had the burden to demonstrate each and every

element of their breach-of-contract claim. Although the Colberts

presented prima facie evidence in support of their breach-of-contract

claim, A&W elicited sufficient testimony on cross-examination to

contradict that evidence, thus creating a conflict warranting jury

consideration. Jameson's direct testimony was self-serving and did not

establish such a "high quantum of evidence" that it left no doubt that the

11
SC-2024-0037

Colberts were entitled to a JML on their breach-of-contract claim. Id.

When a genuine issue of a material fact exists, the jury must play its

traditional role as fact-finder. See Cloverleaf Plaza, Inc. v. Cooper & Co.,

565 So. 2d 1147, 1149 (Ala. 1990) (noting that a motion for a JML should

be denied if there is any conflict in the evidence to be resolved by a jury).

Factual conflicts are not established merely by competing witnesses

submitting divergent evidence; rather, factual conflicts are also

presented when the testimony of a single witness is not conclusive

because of other facts presented in evidence, which subjects the

testimony to differing interpretations. In such a scenario, those

questions of fact should be resolved by the jury. Here, although only

Jameson testified, his testimony as the plaintiff still required him to

carry his burden of proof; nothing required A&W to provide any

testimony. 3 However, Jameson's testimony was not conclusive; rather, it

revealed a conflict with regard to what the contract said, how he acted

based on his interpretation of the contract, and the consequences of his

actions (or lack thereof). Based on the foregoing, we conclude that the

3Notably, a representative from A&W had given a deposition and

was also present at trial. However, the Colberts neither called the
representative to testify nor relied on his deposition testimony.
12
SC-2024-0037

trial court erred in entering a JML in favor of the Colberts on their

breach-of-contract claim.

B. The Judgment on the Fraudulent-Misrepresentation Claim

A&W presents multiple arguments in support of its contention

that the trial court erred in allowing the jury to consider the fraudulent-

misrepresentation claim concerning the three-month builder's warranty.

A&W's first argument raises an evidentiary challenge. As previously

indicated, Jameson testified at trial that A&W's real-estate agent had

sent Katherine Colbert a text message stating that A&W had offered a

three-month builder's warranty on its remodeling work and that the

Colberts had purchased the house based on that representation. A&W,

however, denied the existence of a builder's warranty. A&W argues that

the trial court erred in allowing the jury to consider the fraudulent-

misrepresentation claim because, it says, neither the real-estate agent

nor Katherine testified at trial regarding the builder's warranty or the

text message. However, during the trial, A&W never objected to

Jameson's testimony regarding the builder's warranty, nor did it object

when a screenshot of the text message was admitted into evidence. Thus,

A&W failed to preserve this evidentiary issue for appellate review. See

13
SC-2024-0037

ITEC, Inc. v. Automated Precision, Inc., 623 So. 2d 1139, 1140 (Ala. 1993)

("Issues not raised before the trial court will not be considered for the

first time on appeal.").

A&W presents three additional arguments that, it says, precluded

the jury from considering the fraudulent-misrepresentation claim; those

arguments relate to the sufficiency of the evidence concerning the

element of reliance. See Moore v. Prudential Residential Servs. Ltd.

P'ship, 849 So. 2d 914, 923 (Ala. 2002) (noting that an essential element

of any fraud claim is that the plaintiff must have reasonably relied on the

alleged misrepresentation). A&W argues that the evidence was

insufficient to demonstrate that the Colberts reasonably relied on any

representation of A&W's real-estate agent regarding a builder's warranty

because, it says, (1) the existence of paragraph 30 in the contract, known

as a merger or integration clause, barred such reliance; (2) the existence

of paragraph 11 of the contract, concerning representations about the

condition of the property, barred such reliance; and (3) the fact that the

Colberts both personally inspected the property and had it inspected by

a professional barred such reliance. However, A&W did not move for a

JML at the close of all the evidence pursuant to Rule 50(a), Ala. R. Civ.

14
SC-2024-0037

P., which is required to preserve an objection to the sufficiency of the

evidence. See Committee Comments on 1973 Adoption of Rule 50; and

Cook's Pest Control, Inc., v. Rebar, 28 So. 3d 716, 722 (Ala. 2009). Thus,

we are precluded from considering A&W's arguments concerning the

sufficiency of the evidence supporting the element of reliance of the

Colberts' fraudulent-misrepresentation claim. 4

C. The Judgment on the Fraudulent-Suppression Claim

A&W finally argues that the trial court erred in submitting the

fraudulent-suppression claim to the jury because, it says, the Colberts

offered no evidence to indicate that A&W had actual knowledge of any

latent defects affecting health and safety. A&W bases its argument upon

the health-and-safety exception to the doctrine of caveat emptor. See

4Assuming that A&W had properly preserved those arguments for

review, they have no merit. Paragraph 11 of the contract, concerning a
real-estate agent's representations about the condition of the property, is
inapplicable because the agent in this case made no representations
about the condition of the property; rather, she represented that A&W
had offered a builder's warranty for its remodeling work. Next,
paragraph 30 of the contract, known as a merger or integration clause, is
"not applicable to exclude evidence relating to a fraud claim."
Environmental Sys., Inc. v. Rexham Corp., 624 So. 2d 1379, 1383 (Ala.
1993). Finally, A&W's argument that the existence of a home inspection
precludes the Colberts' reasonable reliance has no merit, because the
authority on which A&W relies is entirely irrelevant to the facts of this
case.
15
SC-2024-0037

Fennell Realty Co. v. Martin, 529 So. 2d 1003, 1005 (Ala. 1988) (noting

that, in the context of a used house, "if the agent (whether of the buyer

or of the seller) has knowledge of a material defect or condition that

affects health or safety and the defect is not known to or readily

observable by the buyer, the agent is under a duty to disclose the defect

and is liable for damages caused by nondisclosure"). Notably, the exact

nature of the facts that A&W allegedly suppressed is not clear. However,

it is clear from the record that, during the proceedings below, the parties

disputed whether the doctrine of caveat emptor applied under the facts

of the case; the trial court did not instruct the jury on the doctrine of

caveat emptor and its exceptions; and, most importantly, A&W never

objected to the general instructions that the trial court gave the jury

regarding fraudulent suppression. Accordingly, A&W failed to preserve

for appellate review its argument that the trial court had erred in

allowing the jury to consider the fraudulent-suppression claim. See

McElmurry v. Uniroyal, Inc., 531 So. 2d 859, 859 (Ala. 1988) (noting than

"an objection to the trial court's oral charge must be made at the close of

the court's initial instructions to the jury, and it must be stated with

sufficient clarity or specificity to preserve the error").

16
SC-2024-0037

IV. Conclusion

The judgment entered on the jury verdict in favor of the Colberts

on their fraud claims is affirmed. The JML entered in favor of the

Colberts on their breach-of-contract claim is reversed, and the case is

remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

WITH INSTRUCTIONS.

Parker, C.J., and Wise, Stewart, and Mitchell, JJ., concur.

Cook, J., recuses himself.

17