THOMPSON, Presiding Judge.
Terry Hutchenson appeals from the Lauderdale Circuit Court's partial summary judgment in favor of Joseph C. Daniel. For the reasons stated herein, we reverse the trial court's judgment and remand the cause for further proceedings.
This case arises from certain repair work that Hutchenson performed for Daniel on a patio and retaining wall located at Daniel's home. The statutes relevant to the present appeal are located in Chapter 14A of Title 34, Ala.Code 1975, which "deals with the licensing of individuals and companies engaged in the profession of residential home construction." Fausnight v. Perkins, 994 So.2d 912, 916 (Ala. 2008). The purpose of the chapter is described in § 34-14A-1, which provides:
Section 34-14A-2(9) defines a "residence" as "[a] single unit providing complete independent residential living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking, and sanitation." Section 34-14A-14 provides, in pertinent part, that an unlicensed residential home builder "shall not bring or maintain any action to enforce the provisions of any contract for residential home building which he or she entered into in violation of this chapter."
We turn now to the factual and procedural history of the present appeal. The record, considered in light of the standard by which this court reviews a summary judgment, see infra, reflects the following. In June or July 2007, Hutchenson, a stonemason, and Daniel, the homeowner, entered into a contract whereby Hutchenson agreed to renovate and repair a flagstone patio, a retaining wall, and a walkway at Daniel's home for an estimated cost of $45,000. While Hutchenson performed the work for Daniel, the cost of the project increased to $75,000 because of certain unanticipated conditions and because Daniel made several changes to the work called for in the contract. Before each change, Hutchenson discussed the proposed change with Daniel and allowed Daniel to make a decision whether to proceed with that change. In an affidavit, Hutchenson described the arrangement of the patio and the retaining wall, as well as the work he performed on those structures, as follows:
On July 1, 2008, Hutchenson sued Daniel alleging breach of contract. In his complaint, he alleged that he had completed the work called for in the contract but that Daniel still owed him $18,987.75, which Daniel had refused to pay. On August 22, 2008, Daniel filed an answer denying the material allegations of Hutchenson's complaint.
In his opposition to Daniel's summary-judgment motion, Hutchenson contended that the patio, the retaining wall, and the walkway were not part of Daniel's residence, as the term "residence" is defined in § 34-14A-2. In support of his opposition, Hutchenson submitted an affidavit, parts of which are quoted above. In that affidavit Hutchenson stated, among other things, that the patio and part of the retaining wall abutted Daniel's house but were not attached to it. He also stated that the patio rested on a foundation that was separate from the foundation on which Daniel's house rested. Hutchenson also filed a copy of an advisory opinion he had obtained from the Board, the state agency charged with administering the provisions of Chapter 14A of Title 34, Ala.Code 1975, regarding the dispute. In that advisory opinion, the Board, after reciting the facts provided to it by Hutchenson and the relevant statutes, wrote that the relevant statutes did not require Hutchenson to have obtained a license from the Board before entering into the contract with Daniel:
Daniel filed a motion to strike the Board's advisory opinion because, according to him, it did not comply with Rule 56(e), Ala. R. Civ. P., and it contained hearsay. The trial court did not rule on that motion.
Hutchenson also filed the affidavit of an architect who stated that he had reviewed photographs of the patio and retaining wall that Daniel had submitted in support of his summary-judgment motion. Although the architect did not offer direct testimony related to Daniel's house, he stated that he had "never designed, seen or known of a patio that is permanently attached to a house." The architect also stated:
On January 16, 2009, the trial court entered an order granting Daniel's motion for a partial summary judgment. In its order, the trial court found "that the patio and retaining wall to which [Hutchenson] made repairs were a part of [Daniel]'s residence and that, as such, the repairs and renovations undertaken by [Hutchenson] constituted repairs, improvement, or reimprovement of the residence." Because it was undisputed that Hutchenson did not hold a license issued by the Board, the trial court concluded that Hutchenson lacked standing to pursue his breach-of-contract action against Daniel. Hutchenson filed a motion to alter, amend, or vacate the trial court's partial summary judgment, which the trial court denied. Hutchenson filed an appeal to this court. This court transferred his appeal to the supreme court for lack of appellate jurisdiction, and that court deflected the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.
Saad v. Saad, 31 So.3d 706, 712 (Ala.Civ. App.2009).
It is undisputed that the Board has never issued Hutchenson a license to engage in home building, and, as a result, his breach-of-contract action against Daniel is precluded if he is a "residential home builder." § 34-14A-14, Ala.Code 1975. Because the contract price for the work Hutchenson was to perform for Daniel exceeded $10,000, the question whether Hutchenson is a residential home builder turns on whether the repair work that he performed to the patio, the retaining wall, and the walkway at Daniel's residence constituted "the repair, improvement, or reimprovement" of a "residence." § 34-14A-2, Ala.Code 1975
Hutchenson contends that the patio and retaining wall on which he performed work are not physically attached to Daniel's house and, as a result, are not part of the "single unit" comprising Daniel's residence. He argues that, although the patio and the retaining wall abut the back of Daniel's house, they are not attached to the house. He argues that the house does not rely on the patio or the retaining wall for support and that the house and the patio exist independently of one another. Hutchenson also quotes the Board's advisory opinion pertaining to the present case and argues that this court should give great weight and deference to the Board's opinion.
The Board, as amicus curiae, filed an appellate brief in support of Hutchenson's appeal. It argues, among other things, that the patio and the retaining wall are not part of the residence because they are not attached to the house. The Board writes:
Citing this court's decision in Alabama Department of Revenue v. Jim Beam Brands Co., 11 So.3d 858 (Ala.Civ.App. 2008), the Board argues that, "[i]n construing
In State Home Builders Licensure Board v. Sowell, 699 So.2d 214 (Ala.Civ. App.1997), this court defined the term "residence" broadly in concluding that a garage, even though it was detached from a house, was part of the "residence" for purposes of Chapter 14A of Title 34. Importantly, at that time, Chapter 14A of Title 34 did not contain a definition of the term "residence," and, as a result, this court was required to supply a definition of that term in disposing of the appeal. In so doing, this court wrote:
699 So.2d at 219-20.
The legislature remedied the lack of a statutory definition of "residence" when, in 2002, it amended § 34-14A-2 to provide a definition of "residence." See Act No. 2002-72, Ala. Acts 2002. Clearly intending to preclude the application of the term "residence" to buildings and structures unattached to a house, the legislature, as stated above, defined a residence as "[a] single unit providing complete independent residential living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking,
The evidence presented to the trial court regarding Daniel's summary-judgment motion was conflicting on the question whether the patio and the retaining wall were attached to Daniel's house or merely abutted it. Daniel's evidence indicated that the patio and the retaining wall were "permanently attached" to the house. In his affidavit, however, Hutchenson testified that the patio rested on a foundation that was separate from the foundation on which the house rested and that, although the retaining wall and the patio abutted the back of the house, they were not attached to the back of the house. We conclude that, if a jury were to credit Hutchenson's testimony rather than Daniel's evidence with regard to the question whether the patio and the retaining wall were attached to the house, the patio and the retaining wall would not be part of the "single unit" comprising Daniel's residence; that Hutchenson's repair work would not have been conducted on a residence; and, as a result, that Hutchenson would not have been required, in order to enforce his contract with Daniel, to have obtained a license from the Board. As a result, the trial court erred when it entered a partial summary judgment in favor of Daniel.
The result we reach is not altered by a consideration of this court's opinion in Hollinger v. Wells, 3 So.3d 216 (Ala.Civ.App. 2008), on which Daniel relies. As pointed out by Daniel, this court held in Hollinger that repairs to a back porch constituted repairs to a residence. 3 So.3d at 220. However, there is no indication in the Hollinger opinion that the builder in Hollinger argued that the back porch was not part of the residence because it was not attached to the residence, nor, for that matter, is there any indication that the back porch was not, in fact, attached to the residence. Therefore, it does not appear that this court addressed in Hollinger a question similar to the one presented in the present case, i.e., whether a patio and retaining wall abutting but not attached to a residence constitute part of the single unit comprising the residence.
Furthermore, we are not persuaded by Daniel's reliance on the term in the parties' handwritten contract indicating that Hutchenson would provide repair work for Daniel's "dwelling." We are not, in resolving this appeal, confined by the colloquialisms and broad language contained in the parties' handwritten contract when deciding whether the repairs Hutchenson performed were to Daniel's residence as that term is precisely and legislatively defined in § 34-14A-2(9). Indeed, it can hardly be said, and there is certainly no evidence indicting, that the parties were contemplating the scope of the term "residence" as defined by statute when drafting their contract. Simply put, we refuse to allow a single reference in the parties' contract to Daniel's "dwelling" to define the scope of the work the parties agreed Hutchenson would perform or to influence whether the scope of that work required that Hutchenson be licensed by the Board before entering that contract and engaging in that work.
Based on the foregoing, we conclude that there is a genuine issue of material fact regarding whether Hutchenson was a "residential home builder" required to have been licensed by the Board in order to enforce his contract with Daniel.
REVERSED AND REMANDED.
PITTMAN, BRYAN, and THOMAS, JJ., concur.
MOORE, J., concurs in the result, without writing.