Mental Anguish Damages for Home Construction Problems
TLIG Maintenance Services, Inc. v. Fialkowski – Mental anguish claims in a home construction and repair case are only proper in severe circumstances, where the home has been made uninhabitable.
A jury awarded Deann Fialkowski damages for breach of contract and breach of implied warranty of good workmanship against TLIG Maintenance Services, Inc., Gala Rusich, and Bruce Kitchura, in the amount of $27,176.00. The jury further awarded Fialkoski $15,000.00 for mental anguish. The Defendants appealed the award of damages for mental anguish, arguing that the evidence did not support such an award. TLIG Maintenance Services, Inc. v. Fialkowski, [Ms. 2150255, Sept. 2, 2016] — So. 3d — (Ala.Civ.App. 2016).
Fialkowski purchased a house in Huntsville, Alabama, in May 2007. The outside of the house was “pretty rough,” so she undertook to have repairs performed. The repairs were projected to cost $35,000.00. After six years, Fialkowski had saved a sufficient amount of money and contracted with Kitchura (through Fialkowski’s friend Rusich) to do the repair work. Kitchura, who owned and operated TLIG, held a license that him limited to entering into contracts of not more than $10,000.00 because he did not have a homebuilder’s license. On the permit application, Kitchura indicated the scope of work would amount to $5,300.00.
Construction extended for many months. Throughout that time Fialkowski had concerns about the stability of a porch that Kitchura was building, but Kitchura gave assurances that everything was fine. Nevertheless, Fialkowski contacted the Huntsville building inspector’s office. The inspector found that the construction exceeded the scope of the permit and did not meet code minimums.
Fialkowski addressed her concerns with Kitchura, who demanded more money to perform the work. Fialkowski did not allow Kitchura to continue working on the project. She an additional $15,171.69 to complete the porch/deck project, on top of the $27,176.00 she had paid Kitchura/TLIG. Fialkowski sold a retirement plan to fund the construction, as well as selling personal belongings on an internet auction site.
Generally, under Alabama law, mental anguish is not recoverable as part of a breach of contract claim. See B&M Homes, Inc. v. Hogan, 376 So.2d 667, 671 (Ala. 1979). There is an exception that allows mental anguish when the claims arises from a contract for construction or repairs to a resident and the breach of contract actually did cause mental anguish of suffering to such a degree that it resulted in emotional or mental detriment. See Id. at 672.
The Alabama Court of Civil Appeals has previously determined that mental anguish claims are proper in home construction/repair cases under the following circumstances: “where the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering. … The majority of the cases in which a plaintiff has been allowed to recover damages for mental anguish involved actions on ‘contracts for the repair or construction of a house or dwelling or the delivery of utilities thereto, where the breach affected habitability.'” Baldwin v. Panetta, 4 So.3d 555 (Ala.Civ.App. 2008) (Internal citations omitted).
Where defects are not so severe as to render a residence uninhabitable, the homeowner is not entitled to an award for mental anguish. See Baldwin, 4 So.3d 555. There was no evidence before the court that any of the work performed by Kitchura on the porch/deck rendered the house uninhabitable or caused any damage to the house itself. Nor was Fialkowski’s health or safety endangered by remaining in the house. And none of her possessions were exposed to harm. As such, the Alabama Court of Civil Appeals found that Fialkowski did not qualify for an award of damages for mental anguish.
[NOTE: In this decision, the appellate court also addressed the issue of the trial court’s decision to pierce the corporate veil as to the defendants. I have not delved into that issue here.]
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