BRYAN, Judge.
Superior Wall and Paver, LLC ("Superior"), the plaintiff/counterdefendant below, appeals from a judgment in favor of Pamela E. Gacek and Mark R. Gacek, the defendants/counterplaintiffs below. We affirm.
On March 16, 2007, Superior sued the Gaceks. Superior alleged that it and the Gaceks had entered into a contract ("the contract") for Superior to prepare and install concrete pavers at the Gaceks' residence, that Superior had performed its obligations under the contract, that the
Filing an answer and counterclaim, the Gaceks denied that they were liable to Superior and asserted that Superior was liable to them because, the Gaceks said, they had paid Superior more than the contract price, Superior had improperly attempted to increase the price after beginning the job because it had made an error in calculating the amount of material needed to complete the job, Superior had not properly installed the pavers, Superior had not complied with the design agreed upon, Superior had not used the quality of materials agreed upon, Superior had not completed the work agreed upon, and Superior had not performed its work in a good and workmanlike manner. In their counterclaim, the Gaceks stated claims of breach of contract, negligence, wantonness, fraudulent misrepresentation, and slander of title. Answering the Gaceks' counterclaim, Superior denied that it was liable to the Gaceks. The Gaceks subsequently amended their answer to assert an additional affirmative defense and amended their counterclaim to seek damages for mental anguish allegedly caused by Superior's breaching the contract and its negligence. Answering the Gaceks' amended counterclaim, Superior denied that it was liable to the Gaceks.
On February 23, 2010, Superior moved for a partial summary judgment "as to [the Gaceks'] Counterclaims for Wantonness, Fraudulent Misrepresentation, and Slander of Title and [the Gaceks'] claims for emotional and/or mental damages."
On February 26, 2010, the parties participated in mediation. As a result of the mediation, the parties entered into a written agreement ("the mediation agreement"), which provided, in pertinent part:
On March 9, 2010, Superior moved to enforce the mediation agreement. Following a hearing, the trial court denied that motion on March 10, 2010.
On March 15, 2010, the trial court held a bench trial at which it received evidence ore tenus. On March 19, 2010, the trial court entered two judgments. One of those judgments granted Superior's partial-summary-judgment motion "as to the [Gaceks'] claims for Wantonness, Fraud, and Slander of Title" but did not grant it as to the Gaceks' "claims for emotional and/or mental damages." The other judgment ("the second March 19, 2010, judgment") found in favor of the Gaceks with respect to their counterclaims of breach of contract and negligence and awarded the Gaceks damages in the amount of $60,500. Neither of the judgments entered by the trial court expressly adjudicated Superior's claims against the Gaceks.
On April 16, 2010, Superior filed a postjudgment motion, which the trial court denied on April 20, 2010. Superior then timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.
Because neither of the two written judgments entered by the trial court on March 19, 2010, expressly adjudicated Superior's claims against the Gaceks, we remanded the action for the trial court to enter a judgment adjudicating those claims, and the trial court entered a judgment amending the second March 19, 2010, judgment to add a provision finding in favor of the Gaceks with respect to Superior's claims against the Gaceks.
In January 2006, the Gaceks, who then had a driveway ("the existing driveway") at their residence that was surfaced, in part, with concrete and, in part, with asphalt, wanted to install interlocking concrete pavers ("pavers") where the existing driveway was located. Ted Buell, who was then a co-owner of Superior along with Michael Darby,
The Gaceks accepted the proposal, and it became the parties' contract. The Gaceks paid Superior a down payment in the amount of $20,000 in March 2006. Superior began work on the project in July 2006.
Colin Schmidt, Superior's foreman on the project, testified as follows. Darby, who was then a co-owner of Superior and is now its sole owner, instructed Schmidt to install the pavers where the Gaceks wanted them installed and told him that the area where the pavers were to be installed amounted to approximately 5,000 square feet. Although Darby did not show Schmidt the contract, Schmidt understood from talking to Darby that he was supposed to install the pavers "pretty much where the old driveway was." He further understood that he was to put the pavers on top of the concrete where the concrete was still good and to remove the concrete where it would cause the pavers to be too high to tie into the road or the garage. Schmidt testified that, when he prepared the site for the installation of the pavers, he discovered that bushes had grown over the asphalt along the edges of the existing driveway and that the area of the existing driveway covered by the bushes had not been included in Buell's measurements. He realized that covering that additional area with pavers would result in pavers being installed in an area that exceeded 5,000 square feet. Schmidt testified that he asked Darby if Darby had realized that the edges of the existing driveway had become overgrown with bushes, and Darby answered in the negative.
Schmidt testified that he then asked the Gaceks whether they had noticed that the edges of the driveway had become overgrown with bushes, and they responded in the negative. Schmidt testified that he
Peter Gacek and Mark Gacek, the Gaceks' sons, testified that the edges of the existing driveway were not covered with grass or bushes when Buell measured the existing driveway.
Superior completed its work in August 2006. On September 8, 2006, the Gaceks paid Superior $12,000, bringing the total amount they had paid to Superior to $32,000. During September 2006, a dispute arose between Superior and the Gaceks regarding the amount the Gaceks owed Superior. Superior contended that, in addition to the $45,000 specified by the contract, the Gaceks owed Superior $14,400 ($9.00 per square foot multiplied by 1,600 square feet) for its installing pavers in the 1,600-square-foot area of the driveway that Superior claimed had been overgrown with bushes when Buell had measured the existing driveway. The Gaceks contended that the contract specified a total price of $45,000 for installing pavers in the area covered by the existing driveway.
In October 2006, the Gaceks gave Superior a check in the amount of $14,500, which consisted of the $13,000 difference between the $45,000 price referred to in the contract and the $32,000 the Gaceks had already paid Superior and an extra $1,500 they had agreed to pay Superior for removal of portions of the concrete surface of the existing driveway. The words "paid in full" were written on the check. Superior negotiated that check but continued to insist that the Gaceks owed Superior an additional $14,400 for installing pavers on the 1,600 square feet of the existing driveway that Superior claimed it had not included in its original measurement of the existing driveway.
After Superior completed its work, the pavers began to move, creating gaps between the pavers. In addition, water began to flow into the Gaceks' garage when it rained. The Gaceks complained to Superior about the problems with the pavers; however, Superior did not correct the problems. Dan Pressley, the general manager of Southern Paver Systems, testified that he had inspected the work performed by Superior at the Gaceks' request. He testified that he had found no 89/10 crushed-limestone base under the pavers; that, in some areas where Superior had removed portions of the existing driveway,
In addition, Pressley testified that the work Superior had performed had caused water to flow into the Gaceks' garage when it rained and that, in order to cure that problem, pipe would have to be installed so that the water would flow from the garage to the street. Pressley testified that the cost of installing such a drain pipe would be approximately $5,000.
Because the trial court received evidence ore tenus, our review is governed by the following principles:
Superior argues that the trial court erred in ruling in favor of the Gaceks with respect to Superior's breach-of-contract claim because it based that ruling on two erroneous grounds. First, Superior argues that the trial court based its ruling in favor of the Gaceks on the ground that the contract was a fixed-price contract specifying a total fixed price of $45,000 for the installation of pavers regardless of the size of the area where Superior installed pavers and that that was an erroneous ground for ruling in favor of the Gaceks because, Superior argues, the contract was a unitprice contract providing for a total price to be determined by multiplying the unit price of $9.00 per square foot times the number of square feet where Superior installed pavers. Thus, according to Superior, the total amount Superior was entitled to under the contract was $59,400 (6,600 square feet multiplied by the unit price of $9.00 equals $59,400) rather than $45,000, and, therefore, Superior asserts, the Gaceks owe Superior $14,400.
Second, Superior argues that the trial court based its ruling in favor of the Gaceks on the ground that the parties did not execute a written order agreeing to the installation of pavers on the additional 1,600 square feet as an extra charge in accordance with the provision of the contract providing that "[a]ny alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate." Superior argues that this second ground for the trial court's ruling in favor of the Gaceks is erroneous because, Superior says, it is contrary to the intention of the parties as expressed in the contract and as expressed in the testimony of Buell.
However, assuming, without deciding, that Superior's arguments regarding those two grounds are correct, the record nonetheless presents another valid legal basis for the trial court's ruling in favor of the Gaceks with respect to Superior's breachof-contract claim, and, subject to exceptions not here applicable, "this [c]ourt will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court." Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003).
In order to prevail on a breachof-contract claim, a plaintiff must prove, among other things, "[its] own performance under the contract." State Farm Fire & Cas. Co. v. Williams, 926 So.2d 1008, 1013 (Ala.2005). In order to satisfy that element, the plaintiff must prove that it substantially performed its obligations under the contract. See Mac Pon Co. v. Vinsant Painting & Decorating Co., 423 So.2d 216, 218 (Ala.1982). "Substantial performance of a contract does not contemplate exact performance of every detail but performance of all important parts." Id. "Whether a party has substantially performed a promise under a contract is a question of fact to be determined from the circumstances of each case." Cobbs v. Fred Burgos Constr. Co., 477 So.2d 335, 338 (Ala.1985).
In the case now before us, the undisputed evidence established that Superior did not install a base of 3" to 4" of 89/10 crushed limestone before installing the pavers as required by the contract. Pressley testified that Superior's failure to install that base caused the pavers to move, that the movement of the pavers allowed gaps to form between the pavers, and that the gaps allowed water into the gaps between
In this case, the trial court made no specific findings of fact. When a trial court makes no specific findings of fact, this court will assume that the trial court made those findings necessary to support the judgment. See Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992) ("Because the trial judge made no specific findings of fact, this Court will assume that the trial judge made those findings necessary to support the judgment."). Accordingly, because the record contains credible evidence from which the trial court could have found that Superior did not substantially perform the contract, we affirm the ruling of the trial court in favor of the Gaceks with respect to Superior's breachof-contract claim on that ground.
Superior also argues that the trial court erred in ruling in favor of the Gaceks with respect to Superior's claim that the Gaceks owed Superior $14,400 for work and labor Superior had performed.
Jones v. LeFlore, 421 So.2d 1287, 1288 (Ala.Civ.App.1982) (citation omitted). The record contains evidence from which the trial court could have found that, because Superior did not install the base of 3" to 4" of 89/10 crushed limestone specified by the contract, the total value of the work and labor performed by Superior did not exceed the $46,500 the Gaceks paid Superior and, therefore, that Superior was not entitled to prevail on its claim that the Gaceks owed Superior $14,400 for work and labor done. As noted above, because the trial court did not make any specific findings of fact in this case, we will assume that the trial court made those findings necessary to support its judgment. See Transamerica, supra. Moreover, because a finding that the total value of the work and labor performed by Superior did not exceed the $46,500 the Gaceks paid Superior is supported by credible evidence, we cannot reverse the trial court's ruling in favor of the Gaceks with respect to Superior's claim that the Gaceks owed Superior $14,400 for work and labor done. See Jones, supra.
Superior also argues that the trial court erred in awarding the Gaceks damages in the amount of $60,500 on their claims because, Superior says, that award constituted the cost to repair the defects in Superior's work instead of the difference between the market value of the Gaceks' property with the driveway constructed in a workmanlike manner in accordance with the contract and the market value of the Gaceks' property with the driveway as actually constructed by Superior. Superior argues that this was error because, given the circumstances of this case, the award of repair costs constitutes economic waste. Superior cites Jacob & Youngs, Inc. v.
In Jacob & Youngs, Kent contracted with Jacob & Youngs, Inc. ("Jacob"), a contractor, to build a dwelling for a price of approximately $77,000. One of the specifications for the plumbing work provided that " `[a]ll wrought-iron pipe must be well galvanized, lap welded pipe of the grade known as "standard pipe" of Reading manufacture.' " 230 N.Y. at 240, 129 N.E. at 890. Jacob completed the construction in June 1914, and Kent occupied the dwelling without complaint until he discovered in March 1915 that some of the pipe had been made in factories other than Reading. The architect then ordered Jacob to do the plumbing work anew. Because most of the plumbing pipes were encased within the walls, Jacob's compliance with that order would have required it to demolish substantial portions of the completed dwelling at great expense. Jacob did not comply with the order and requested a certificate that the final payment was due. Upon refusal of the certificate, Jacob sued Kent to recover the unpaid balance of the contract price, which was $3,483.46. The trial court excluded evidence offered by Jacob that tended to show that the brand of pipe installed was of the same quality as Reading pipe and directed a verdict in favor of Kent, and Jacob appealed. The Appellate Division of the New York Supreme Court reversed the trial court's judgment and ordered a new trial. Kent then appealed to the Court of Appeals of New York, which affirmed the judgment of the Appellate Division. Justice Cardozo, writing for the majority, stated:
230 N.Y. at 244-45, 129 N.E. at 891-92 (emphasis added).
In the case now before us, however, the evidence would support a finding that the defects in Superior's performance were substantial, rather than nominal as was the defect in Jacob's performance in Jacob & Youngs. Accordingly, we conclude that the trial court did not err in awarding the Gaceks the cost to repair the defects in Superior's work based on the ground that it constituted economic waste.
Superior next argues that the trial court erred in awarding the Gaceks $60,500 because, Superior says, regardless of whether awarding the Gaceks the cost to repair the defects in Superior's work would constitute economic waste, the proper measure of damages was the difference between the market value of the Gaceks' property with the driveway constructed in a workmanlike manner in accordance with the contract and the market value of the Gaceks' property with the driveway as it was actually constructed. However, in Kohn v. Johnson, 565 So.2d 165, 168-69 (Ala.1990), the supreme court held that an owner who had sued a contractor because of defective work in constructing an addition to her home was entitled to recover the reasonable cost of making the contractor's work conform to the contract where that amount did not constitute economic waste. Based on the authority of Kohn, we conclude that the trial court did not err in awarding the Gaceks the cost to repair the defects in Superior's work.
Superior next argues that the trial court erred in awarding the Gaceks $60,500 without allowing Superior a setoff in the amount of $14,400. However, this argument has no merit because, as we discussed above, the trial court's rulings in favor of the Gaceks with respect to Superior's claims seeking recovery of the $14,400 are due to be affirmed, and, consequently, Superior was not entitled to a setoff in that amount.
Finally, Superior argues that the trial court erred in denying Superior's motion to enforce the mediation agreement. However, the trial court held a hearing regarding that motion, and the record on appeal does not contain a transcript of that hearing. In the absence of a transcript of that hearing, we must presume that the trial court's order denying Superior's motion to enforce the mediation agreement was supported by evidence introduced at the hearing. See Prescott v. Prescott, 6 So.3d 552, 554 (Ala.Civ.App.2008).
Accordingly, we affirm the judgment of the trial court.
AFFIRMED.
PITTMAN, J., concurs.
THOMPSON, P.J., and THOMAS and MOORE, JJ., concur in the result, without writings.