Appellate Law

Home buyer not entitled to restitution from unlicensed builder; non-compliance with briefing rules does not necessarily defeat appeal

In Fausnight v. Perkins, Ms. 1060171 (Ala. May 23, 2008), in a question of first impression, the Alabama Supreme Court held that a home buyer is not entitled to restitution of funds already paid to an unlicensed home builder solely on the basis that the builder was not licensed.

The Perkinses contracted with Fausnight to build a home, and paid Fausnight $195,359.83 for the construction.  Fausnight, however, was not a licensed contractor.  After the home was completed, the Perkinses filed suit alleging fraud and other claims arising from the construction of the house, and also sought restitution of the funds paid.  The Perkinses argued that under the licensing statute, Ala. Code 34-14A-14, the contract was void because Fausnight was not licensed and, therefore, he is not entitled to the money from the contract.  The trial court agreed and granted the Perkinses summary judgment on their restitution claim.  The trial court certified the decision as final pursuant to 54(b), and the Alabama Supreme Court reversed.

The Supreme Court determined that while Fausnight would be barred by statute from suing the Perkinses for payment, that did not mean that the Perkinses would be entitled to restitution.  The Court reviewed case law from other jurisdictions, and noted that cases have gone both ways on this point.  However, Alabama's statute does not provide for restitution, and ordering restitution would lead to an inequitable result.  Therefore, the home buyers were not entitled to restitution of the funds already paid, and the summary judgment was reversed.

The Perkinses also asked the Supreme Court to summarily affirm the appeal because Fausnight did not fully comply with Ala. R. App. P. 28(a), namely, he did not include a proper statement of facts.  The Court declined to afirm the summary judgment as a result of this failure, as "we find that the factual statements contained in the brief sufficiently inform the Court of those facts necessary to dispose of the appeal."  Slip Op. p. 7, n. 3.

Full post as published by Alabama Appellate Watch on May 28, 2008 (boomark / email).