AlaFile E-Notice

47-CV-2013-900506.00 To: Thomas Scott McGrath tom@tsmlaw.com

NOTICE OF ELECTRONIC FILING

Notice Date:

3/7/2013 5:45:22 PM

JANE C. SMITH CIRCUIT COURT CLERK MADISON COUNTY, ALABAMA MADISON COUNTY, ALABAMA HUNTSVILLE, AL 35801 256-532-3390 jane.smith@alacourt.gov

State of Alabama Unified Judicial System Form ARCiv-93 Rev.5/99

COVER SHEET CIRCUIT COURT - CIVIL CASE

ELECTRONICALLY FILED 3/7/2013 5:45 PM CV-2013-900506.00 47-CV-2013-900506.00 COURT OF CIRCUIT MADISON COUNTY, ALABAMA Date of Filing: Judge Code: JANE C. SMITH, CLERK
Case Number: 03/07/2013

GENERAL INFORMATION
IN THE CIRCUIT OF MADISON COUNTY, ALABAMA VISION MINISTRIES, INC., D/B/A HUNTSVILLE v. TORNADO MASTERS OF ALABAMA, INC. ET AL
First Plaintiff: Business Government Individual Other First Defendant: Business Government Individual Other

NATURE OF SUIT:
TORTS: PERSONAL INJURY WDEA - Wrongful Death TONG - Negligence: General TOMV - Negligence: Motor Vehicle TOWA - Wantonnes TOPL - Product Liability/AEMLD TOMM - Malpractice-Medical TOLM - Malpractice-Legal TOOM - Malpractice-Other TBFM - Fraud/Bad Faith/Misrepresentation TOXX - Other: TORTS: PERSONAL INJURY TOPE - Personal Property TORE - Real Property OTHER CIVIL FILINGS ABAN - Abandoned Automobile ACCT - Account & Nonmortgage APAA - Administrative Agency Appeal ADPA - Administrative Procedure Act ANPS - Adults in Need of Protective Services ORIGIN: F R INITIAL FILING REMANDED A T OTHER CIVIL FILINGS (cont'd) MSXX - Birth/Death Certificate Modification/Bond Forfeiture Appeal/Enforcement of Agency Subpoena/Petition to Preserve CVRT - Civil Rights COND - Condemnation/Eminent Domain/Right-of-Way CTMP-Contempt of Court CONT-Contract/Ejectment/Writ of Seizure TOCN - Conversion EQND- Equity Non-Damages Actions/Declaratory Judgment/Injunction Election Contest/Quiet Title/Sale For Division CVUD-Eviction Appeal/Unlawfyul Detainer FORJ-Foreign Judgment FORF-Fruits of Crime Forfeiture MSHC-Habeas Corpus/Extraordinary Writ/Mandamus/Prohibition PFAB-Protection From Abuse FELA-Railroad/Seaman (FELA) RPRO-Real Property WTEG-Will/Trust/Estate/Guardianship/Conservatorship COMP-Workers' Compensation CVXX-Miscellaneous Circuit Civil Case

APPEAL FROM DISTRICT COURT TRANSFERRED FROM OTHER CIRCUIT COURT

OTHER

HAS JURY TRIAL BEEN DEMANDED? RELIEF REQUESTED: ATTORNEY CODE:

Yes

No NO MONETARY AWARD REQUESTED /s/ Thomas Scott McGrath

MONETARY AWARD REQUESTED

MCG042

3/7/2013 5:45:21 PM Yes No Undecided

MEDIATION REQUESTED:

ELECTRONICALLY FILED 3/7/2013 5:45 PM CV-2013-900506.00 CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C. SMITH, CLERK

IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA ) ) ) ) Plaintiff, ) ) vs. ) ) TORNADO MASTERS OF ALABAMA, ) INC.,; JESSE STUTTS, INC., and ) A, B, and C being that individual, ) partnership or corporation who or which ) committed or is responsible for the ) wrongful conduct described in this ) Complaint or the damages to Plaintiffs ) under the circumstances described in the ) Complaint, whose true and correct names ) as party Defendants are not known, but ) will be substituted by amendment when ) ascertained by Plaintiffs, ) ) Defendants. ) VISION MINISTRIES, INC., d/b/a HUNTSVILLE CHRISTIAN ACADEMY,

CIVIL ACTION NO: CV13-

COMPLAINT COMES NOW the Plaintiff, Vision Ministries, Inc., d/b/a Huntsville Christian Academy, by and through the undersigned counsel and for its Complaint state as follows: GENERAL AVERMENTS 1. Plaintiff, Vision Ministries, Inc., d/b/a Huntsville Christian Academy, (hereinafter Plaintiff or Huntsville Christian Academy), is an Alabama corporation with its principal place of business in Madison County, Alabama. 2. Defendant, Tornado Masters of Alabama, Inc., (hereinafter Tornado Masters), is a corporation that is or was organized and existing under the laws of the State of Alabama with its principal place of business in Madison County, Alabama, at all times pertinent to this Complaint. 3. Defendant, Jesse Stutts, Inc., (herein after Jesse Stutts), is a corporation organized and existing under the laws of the State of Alabama with its principal place of business in Madison County, Alabama, at all times pertinent to this Complaint.

4. The fictitious party Defendants are as follows: A, B, and C, being that individual, partnership or corporation who or which committed or is responsible for the wrongful conduct described in this Complaint or the damages to Plaintiff under the circumstances described in the Complaint. THE FACTS 5. Huntsville Christian Academy operates a K-12 school with up to 144 students, faculty and administrators in attendance on school days. 6. In or about November, 2008 Tornado Masters approached Huntsville Christian Academy and proposed the construction of a steel storm shelter that would protect and shelter each of its students and faculty of the school during severe weather. 7. On or about January 16, 2009, Huntsville Christian Academy contracted with Tornado Masters to build a steel storm shelter on the rear of its existing facility with a capacity up to 144 students and faculty for $80,800.00.

8. After entering Tornado Masters entered into the above contract, it undertook to have plans and specifications for the steel storm shelter produced by PEC Structural Engineering

(herein after PEC). Prior to March 16, 2009, PEC produced plans and specifications for the steel storm shelter for Tornado Masters. 9. PECs plans were submitted to the State of Alabama Building Commission (herein after Building Commission) who reviewed the plans and specifications for code compliance. On March 16, 2009, The Building Commission refused to approve the plans and specifications as incomplete and requiring further verification the steel storm shelter was code compliant for occupancy by up to 144 people.

10. After revision, Tornado Masters re-submitted PECs plans and specifications to the Building Commission which were subsequently approved on March 26, 2009.

11. The Building Commissions regulations require (c)hanges to plans and specifications after final approval be submitted be submitted to the Technical Staff for review. 12. On or about April 15, 2009, Defendant, Jesse Stutts, Inc., through Bill Lee, one of its officers, employees or authorized representatives, applied for a building permit from the City of Huntsville, Department of Building Inspection to construct the steel storm shelter for the Plaintiff, Huntsville Christian Academy valued at $80,000.00 and in conformity with the plans and specifications drawn by PEC.

13. On April 15, 2009, the City of Huntsville Building Department issued a building permit to Jesse Stutts to build the storm shelter in compliance with all provisions of the building code of the City of Huntsville and all state laws pertaining to buildings.

14. The Alabama Licensing Board for General Contractors (herein after "the Board) regulates the issuance of licenses and the conduct of general contractors. Under the Boards regulations, only general contractors are authorized to undertake or superintend commercial construction (non-residential) projects in excess of fifty thousand dollars ($50,000.00).

15. The Boards regulations also prohibit any person or entity from constructing or superintending a commercial construction project in excess of fifty thousand dollars ($50,000.00) who is not licensed by the Board as a subcontractor. 16. Upon information and belief, Jesse Stutts, Inc., was licensed by the Board as a general contractor on April 15, 2009. 17. Upon information and belief, Tornado Masters was not licensed as a general contractor or a subcontractor by the Board on April 15, 2009. 18. Subsequent to the issuance of the building permit, Jesse Stutts, subcontracted the fabrication and installation of the Huntsville Christian Academy storm shelter to Tornado Masters. 19. General contractors are responsible for supervising the work of their subcontractors under the policies of the Board and the City of Huntsville Building Inspection Department. 20. Upon completion of the steel storm shelter in or about June 16, 2009, Huntsville Christian Academy fully performed its obligation by paying the entire $80,800.00 balance due to Tornado Masters called for in their contract. 21. On March 5, 2012, the Attorney General for the State of Alabama filed a Verified Complaint for Injunctive, Declaratory and Other Relief in the Circuit Court of Madison County, Alabama.

22. On March 5, 2012, the Circuit Court of Madison County issued a Temporary Restraining Order directing Tornado Masters to cease and desist all business activities; freezing all of its assets and appointing a receiver to seize all of Tornado Masters assets.

23. On March 12, 2012 the Alabama State Fire Marshal (herein after Fire Marshal) unexpectedly and without prior notice, arrived at Huntsville Christian Academy to inspect the steel storm shelter. After inspecting, the Fire Marshall identified seven (7) potential or actual violations of the applicable building code and issued an order preventing anyone from using the steel storm shelter until further inspection could be performed. 24. On March 16, 2012, The Fire Marshall and PEC engineer, Jonathon Powell, Osborne and Associates architect, Jamie Brown, returned to the steel storm shelter and inspected the as-built steel storm shelter and compared it to the PEC plans and specifications approved by the Alabama Building Commission and the City of Huntsville Building Inspection Department. 25. Upon completion of their inspection, PEC issued a March 24, 2012 Field Report detailing the following deviations from the plans and other deficiencies: a. b. c. d. e. f. g. h. Missing stiffener plates; Inadequately sized framing members; Inadequate numbers of anchor bolts; Inadequately installed anchor bolts where bolts were present; Missing connection bolts; Inadequately installed connection bolts where bolts were installed; Missing air vents; Improperly installed vents where vents were installed;

i. j. k. l. m. n. o. p. q.

Missing anchor rods at end wall framing; Steel door fabricated using undersized steel plate; Steel base angles installed present tripping hazards; Missing HHS reinforcing members; Improperly installed soffit and end wall framing; Missing closure strips on the bottom of roof panels; Substandard roof flashing; Substandard metal fascia; and, Substandard trim system installation.

26. In addition to the above deviations and deficiencies, The PECs March 24, 2012 Field Report concluded the maximum legal capacity of the as-built steel storm shelter was fifty-six (56) occupants if the ventilation on the as-built structure was improved.

27. Upon receipt of the PEC report detailing the deficiencies and deviations listed above, the Fire Marshall ordered Huntsville Christian Academy not to use the steel storm shelter until the conditions were cured. 28. On April 3, 2012 the Attorney General for the State of Alabama obtained a permanent injunction against Tornado Masters. 29. Huntsville Christian Academy contacted Tornado Masters and Jesse Stutts and requested they return and cure the defects and deficiencies in the steel storm shelter. 30. Despite Huntsville Christian Academys efforts, neither Tornado Masters nor Jesse Stutts agreed to cure any defects and deficiencies in the steel storm shelter. This action followed. 31. Under the doctrine of respondeat superior and pursuant the express terms of the City of Huntsville Building Permit, Jesse Stutts is responsible for the cost of curing and completing a code compliant, one hundred and forty-four (144) person capacity, steel storm shelter for Huntsville Christian Academy even if it was fabricated or installed by Tornado Masters. COUNT ONE (Suppression Jesse Stutts & Tornado Masters) 32. Plaintiff re-alleges and incorporates herein Paragraphs 1 through 31, above, as if set forth verbatim. 33. Defendants, Jesse Stutts and Tornado Masters, suppressed from the Plaintiff the following material facts:

a)

that Tornado Masters was not a licensed general contractor or subcontractor by the State of Alabama; that the as-built steel storm shelter failed to meet or exceed all applicable building codes adopted and enforced by the City of Huntsville, Alabama, before paying the entire contract price; that the as-built steel storm shelter did not conform to the plans approved by the Building Commission before paying the entire contract price; that the as-built steel storm shelter could legally accommodate only fifty-six (56) occupants instead of one hundred and forty-four (144) occupants; that the as-built storm shelter deviated from the plans and specifications submitted to and approved by the Building Commission; that they were not retaining, supervising or otherwise assuring their supervisors or superintendents verified the steel storm shelter was completed with the degree of skill, workmanship and expertise expected or required to comply with the applicable regulations and codes for Huntsville and the State of Alabama; that they were not retaining, supervising or otherwise assuring their supervisors or superintendents verified the steel storm shelter was completed so it could be legally occupied by one hundred and forty-four (144) occupants under the applicable regulations and codes for Huntsville and the State of Alabama; that they were not retaining, supervising or assuring their subcontractors to assure the steel storm shelter was completed with the degree of skill, workmanship and expertise expected under the applicable regulations and codes for Huntsville and the State of Alabama and, that they would not return to cure defects in the steel storm shelter when notified of substandard work and defects by Huntsville Christian Academy.

b)

c)

d)

e)

f)

g)

h)

i)

These Defendants were under an obligation to communicate these material facts and so failed to communicate such facts to the Plaintiff. The failure of the Defendants to disclose these facts to the Plaintiff was done recklessly, intentionally or maliciously. 34. As a proximate and direct consequence of the Defendants, Tornado Masters and Jesse Stutts, suppression, the Plaintiff was caused to suffer the following injuries and damages, to wit: They were caused to enter into a contract for the construction of a steel storm shelter they otherwise would not have entered into; they were caused to lose the value of their purchase; they have been and will continue to be caused to incur bills for inspection, repair and maintenance of the steel storm shelter; they will be

caused to incur additional expense to either modify or replace the existing steel storm shelter; and, they were caused continued exposure to severe weather that the completion of the steel storm shelter was intended to eliminate. 35. This claim of the Plaintiffs is brought pursuant to 6-5-102, Code of Alabama, 1975, as last amended. WHEREFORE, Plaintiff demands judgment against Defendants, Tornado Masters and Jesse Stutts, for compensatory and punitive damages in an amount a jury may deem just and appropriate under the circumstances, plus costs of this action.

COUNT TWO (Negligence Jesse Stutts & Tornado Masters) 36. Plaintiff re-alleges and incorporates herein Paragraphs 1 through 31, above, as if set forth verbatim. 37. The Defendants negligently constructed and/or supervised the construction of the Plaintiffs steel storm shelter. 38. As a proximate and direct consequence of the Defendants negligence, the Plaintiff was caused to suffer the damages set forth in Paragraph 34, herein above. WHEREFORE, Plaintiff demands judgment against Defendants, Jesse Stutts and Tornado Masters for compensatory damages in an amount a jury may deem just and appropriate under the circumstances, plus costs of this action.

COUNT THREE (Wantonness Jesse Stutts & Tornado Masters) 39. Plaintiff re-alleges and incorporates herein Paragraphs 1 through 31, above, as if set forth verbatim. 40. The Defendants wantonly constructed and/or supervised the construction of the Plaintiffs steel storm shelter. 41. As a proximate and direct consequence of the Defendants wantonness, the Plaintiff was caused to suffer the damages set forth in Paragraph 32, herein above. WHEREFORE, Plaintiff demands judgment against Jesse Stutts and Tornado Masters for punitive damages in an amount a jury may deem just and appropriate under the circumstances, plus costs of this action.

COUNT FOUR (Implied Warranty of Good Workmanship Jesse Stutts & Tornado Masters) 42. Plaintiff re-alleges and incorporates herein Paragraphs 1 through 31, above, as if set forth verbatim. 43. The Plaintiff contracted with the Defendants, Jesse Stutts and Tornado Masters to construct a steel storm shelter in conformity with applicable building codes for one hundred and forty-four (144) students and faculty to occupy legally and safely. The Defendants breached the implied warranty of good workmanship to the Plaintiff by failing to construct the steel storm shelter with the degree of skill and workmanship possessed by those of ordinary skill in the construction trade. 44. As a proximate and direct consequence of the Defendants breach of said implied warranty of good workmanship, the Plaintiff was caused to suffer damages set forth in Paragraph 34, herein above. WHEREFORE, Plaintiffs demand judgment against all Defendants for compensatory and punitive damages in an amount a jury may deem just and appropriate under the circumstances, plus costs of this action.

COUNT FIVE (Deceptive Trade Practices Act Violation - Jesse Stutts & Tornado Masters) 45. Plaintiff re-alleges and incorporates herein Paragraphs 1 through 31, above, as if set forth verbatim. 46. The Alabama Deceptive Trade Practices Act, 8-19-1 et. seq., Ala. Code 1975 (herein after the Act), prohibits "[e]ngaging in any other unconscionable, false, misleading, or deceptive act or practice in the conduct of trade or commerce." 8-19-5(27). The Defendants, Jesse Stutts and Tornado Masters, engaged in the construction of an unfit, unsafe and substandard steel storm shelter which constitutes an unlawful trade practice in violation of the Act in that these Defendants were required by virtue of their licensing by the State of Alabama and the terms of the construction permit issued by the City of Huntsville to meet or exceed all of the applicable building codes. In addition, these Defendants induced the Plaintiff to pay $80,800.00 in reliance upon the express representation the steel storm shelter was suitable to be safely occupied by up to one hundred and forty-four (144) of the Plaintiffs students and faculty while knowing or, in the exercise of reasonable diligence for someone licensed to build steel storm shelters in the State of Alabama, who should have known that such representations were untrue, deceiving and/or false. 47. As a proximate and direct consequence of the Defendants, Jesse Stutts and Tornado Masters, deceptive trade practices, the Plaintiff was caused to suffer the injuries and damages set forth in Paragraph 34, herein above.

WHEREFORE, the Plaintiffs demand judgment against the Defendants, Jesse Stutts and Tornado Masters, for actual damages, treble damages, a reasonable attorneys fee and the costs of this action. COUNT SIX (All Counts-Fictitious Party Defendants) 48. Plaintiff re-alleges and incorporates herein Paragraphs 1 through 31, above, as if set forth verbatim. 49. The Plaintiff hereby alleges, breach of warranty, negligence, wantonness, fraud, suppression, willful misrepresentation, reckless misrepresentation, and innocent misrepresentation and any and all other theories of liability, whether in tort or contract, that are referenced in the body of this Complaint or in the Style and Caption of this Complaint against all fictitious party defendants, whether named or unnamed. The Plaintiff is unaware of the true names or identities of these parties. They will be added by amendment when ascertained. WHEREFORE, Plaintiff demands judgment against the Defendants, and/or fictitious party Defendants A, B, and C, separately and severally, for compensatory damages and punitive damages in such sum as a jury may deem just and appropriate, plus costs of this action.

_______ Thomas S. McGrath (MCG 042) Attorney for Plaintiff McGRATH LAW FIRM P. O. Box 2469 Huntsville, AL 35804 (256) 464-5156 (256) 464-0910 fax tom@tsmlaw.com

PLAINTIFF DEMANDS A JURY FOR ALL CLAIMS HEREIN

Thomas S. McGrath