lawsuit against tornado masters, jesse stutts

7/29/2019 Lawsuit against Tornado Masters, Jesse Stutts

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AlaFileE-Notice

To: ThomasScottMcGrath

[email protected]

47-CV-2013-900506.00

NOTICEOFELECTRONICFILING

INTHECIRCUITCOURTOFMADISONCOUNTY,ALABAMA

ThefollowingcomplaintwasFILEDon3/7/20135:45:22PM

VISIONMINISTRIES,INC.,D/B/AHUNTSVILLEV.TORNADOMASTERSOFALABAM

47-CV-2013-900506.00

NoticeDate: 3/7/20135:45:22PM

JANEC.SMITH

CIRCUITCOURTCLERK

MADISONCOUNTY,ALABAMA

MADISONCOUNTY,ALABAMA

HUNTSVILLE,AL35801

[email protected]


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State of Alabama

Unified Judicial System

Form ARCiv-93 Rev.5/99

COVER SHEETCIRCUIT COURT - CIVIL CASE

(Not For Domestic Relations Cases)

Case Number:

Date of Filing:

47-CV-2013-900506.00

03/07/2013

Judge Code:

GENERAL INFORMATION

IN THE CIRCUIT OF MADISON COUNTY, ALABAMA

First Plaintiff:

VISION MINISTRIES, INC., D/B/A HUNTSVILLE v. TORNADO MASTERS OF ALABAMA, INC. ET AL

BusinessGovernment

IndividualOther

BusinessFirst Defendant:Government

IndividualOther

NATURE OF SUIT:

TORTS: PERSONAL INJURY

WDEA - Wrongful Death

TONG - Negligence: General

TOMV - Negligence: Motor Vehicle

TOMM - Malpractice-Medical

TOPL - Product Liability/AEMLD

TOWA - Wantonnes

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

OTHER CIVIL FILINGS (cont'd)

MSXX -

CVRT - Civil Rights

COND - Condemnation/Eminent Domain/Right-of-Way

CTMP-Contempt of Court

CONT-Contract/Ejectment/Writ of Seizure

Birth/Death Certificate Modification/Bond ForfeitureAppeal/Enforcement of Agency Subpoena/Petition toPreserve

TOCN - Conversion

EQND- Equity Non-Damages Actions/DeclaratoryJudgment/Injunction Election Contest/Quiet Title/Sale ForDivision

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

ORIGIN: F

R

A

T

INITIAL FILING

REMANDED

APPEAL FROMDISTRICT COURT

TRANSFERRED FROMOTHER CIRCUIT COURT

O OTHER

HAS JURY TRIAL BEEN DEMANDED? Yes No

RELIEF REQUESTED: MONETARY AWARD REQUESTED NO MONETARY AWARD REQUESTED

MEDIATION REQUESTED: Yes No Undecided

ATTORNEY CODE: MCG042 3/7/2013 5:45:21 PM /s/ Thomas Scott McGrath

ELECTRONICALLY FILED3/7/2013 5:45 PM

CV-2013-900506.00CIRCUIT COURT OF

MADISON COUNTY, ALABAMJANE C. SMITH, CLERK


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IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

VISION MINISTRIES, INC., d/b/a )

HUNTSVILLE CHRISTIAN )

ACADEMY, )

)Plaintiff, )

)

vs. ) CIVIL ACTION NO: CV13-

)

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. )

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, (hereinafterPlaintiff or Huntsville Christian Academy), is an Alabama corporation with its principal placeof 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 thisComplaint.

3. Defendant, Jesse Stutts, Inc., (herein after Jesse Stutts), is a corporationorganized and existing under the laws of the State of Alabama with its principal place of businessin Madison County, Alabama, at all times pertinent to this Complaint.

ELECTRONICALLY FILED3/7/2013 5:45 PM

CV-2013-900506.00CIRCUIT COURT OF

MADISON COUNTY, ALABAMJANE C. SMITH, CLERK


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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 conductdescribed in this Complaint or the damages to Plaintiff under the circumstances described in theComplaint.

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 ChristianAcademy and proposed the construction of a steel storm shelter that would protect and sheltereach of its students and faculty of the school during severe weather.

7. On or about January 16, 2009, Huntsville Christian Academy contracted withTornado 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 tohave plans and specifications for the steel storm shelter produced by PEC Structural Engineering


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(herein after PEC). Prior to March 16, 2009, PEC produced plans and specifications for thesteel 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 andspecifications as incomplete and requiring further verification the steel storm shelter was codecompliant for occupancy by up to 144 people.

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


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11. The Building Commissions regulations require (c)hanges to plans andspecifications 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 ofits officers, employees or authorized representatives, applied for a building permit from the Cityof Huntsville, Department of Building Inspection to construct the steel storm shelter for thePlaintiff, Huntsville Christian Academy valued at $80,000.00 and in conformity with the plansand specifications drawn by PEC.


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13. On April 15, 2009, the City of Huntsville Building Department issued a buildingpermit to Jesse Stutts to build the storm shelter in compliance with all provisions of the buildingcode 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 Boardsregulations, only general contractors are authorized to undertake or superintend commercialconstruction (non-residential) projects in excess of fifty thousand dollars ($50,000.00).


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15. The Boards regulations also prohibit any person or entity from constructing orsuperintending 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 contractoron April 15, 2009.

17. Upon information and belief, Tornado Masters was not licensed as a generalcontractor or a subcontractor by the Boardon April 15, 2009.

18. Subsequent to the issuance of the building permit, Jesse Stutts, subcontracted thefabrication and installation of the Huntsville Christian Academy storm shelter to TornadoMasters.

19. General contractors are responsible for supervising the work of theirsubcontractors 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, HuntsvilleChristian Academy fully performed its obligation by paying the entire $80,800.00 balance due toTornado Masters called for in their contract.

21. On March 5, 2012, the Attorney General for the State of Alabama filed a VerifiedComplaint 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 TemporaryRestraining Order directing Tornado Masters to cease and desist all business activities; freezingall of its assets and appointing a receiver to seize all of Tornado Masters assets.


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i. Missing anchor rods at end wall framing;j. Steel door fabricated using undersized steel plate;k. Steel base angles installed present tripping hazards;l. Missing HHS reinforcing members;m. Improperly installed soffit and end wall framing;n.

Missing closure strips on the bottom of roof panels;o. Substandard roof flashing;

p. Substandard metal fascia; and,q. Substandard trim system installation.

26. In addition to the above deviations and deficiencies, The PECs March 24, 2012Field Report concluded the maximum legal capacity of the as-built steel storm shelter wasfifty-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 listedabove, the Fire Marshall ordered Huntsville Christian Academy not to use the steel storm shelteruntil the conditions were cured.

28. On April 3, 2012 the Attorney General for the State of Alabama obtained apermanent injunction against Tornado Masters.

29. Huntsville Christian Academy contacted Tornado Masters and Jesse Stutts andrequested they return and cure the defects and deficiencies in the steel storm shelter.

30. Despite Huntsville Christian Academys efforts, neither Tornado Masters norJesse Stutts agreed to cure any defects and deficiencies in the steel storm shelter. This actionfollowed.

31. Under the doctrine ofrespondeat superiorand pursuant the express terms of theCity of Huntsville Building Permit, Jesse Stutts is responsible for the cost of curing andcompleting a code compliant, one hundred and forty-four (144) person capacity, steel stormshelter for Huntsville Christian Academy even if it was fabricated or installed by TornadoMasters.

COUNT ONE(Suppression Jesse Stutts & Tornado Masters)

32. Plaintiff re-alleges and incorporates herein Paragraphs 1 through 31, above, as ifset forth verbatim.

33. Defendants, Jesse Stutts and Tornado Masters, suppressed from the Plaintiff thefollowing material facts:


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a) that Tornado Masters was not a licensed general contractor or subcontractor bythe State of Alabama;

b) that the as-built steel storm shelter failed to meet or exceed all applicablebuilding codes adopted and enforced by the City of Huntsville, Alabama, before

paying the entire contract price;

c) that the as-built steel storm shelter did not conform to the plans approved by theBuilding Commission before paying the entire contract price;

d) that the as-built steel storm shelter could legally accommodate only fifty-six(56) occupants instead of one hundred and forty-four (144) occupants;

e) that the as-built storm shelter deviated from the plans and specificationssubmitted to and approved by the Building Commission;

f) that they were not retaining, supervising or otherwise assuring their supervisors orsuperintendents verified the steel storm shelter was completed with the degree ofskill, workmanship and expertise expected or required to comply with theapplicable regulations and codes for Huntsville and the State of Alabama;

g) that they were not retaining, supervising or otherwise assuring their supervisors orsuperintendents verified the steel storm shelter was completed so it could belegally occupied by one hundred and forty-four (144) occupants under theapplicable regulations and codes for Huntsville and the State of Alabama;

h) that they were not retaining, supervising or assuring their subcontractors to assurethe steel storm shelter was completed with the degree of skill, workmanship andexpertise expected under the applicable regulations and codes for Huntsville andthe State of Alabama and,

i) that they would not return to cure defects in the steel storm shelter when notifiedof substandard work and defects by Huntsville Christian Academy.

These Defendants were under an obligation to communicate these material facts and sofailed to communicate such facts to the Plaintiff. The failure of the Defendants to disclose thesefacts to the Plaintiff was done recklessly, intentionally or maliciously.

34. As a proximate and direct consequence of the Defendants, Tornado Masters andJesse 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 stormshelter they otherwise would not have entered into; they were caused to lose thevalue of their purchase; they have been and will continue to be caused to incurbills for inspection, repair and maintenance of the steel storm shelter; they will be


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caused to incur additional expense to either modify or replace the existing steelstorm shelter; and, they were caused continued exposure to severe weather thatthe 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 andJesse Stutts, for compensatory and punitive damages in an amount a jury may deem just andappropriate 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 thePlaintiffs steel storm shelter.

38. As a proximate and direct consequence of the Defendants negligence, thePlaintiff was caused to suffer the damages set forth in Paragraph 34, herein above.

WHEREFORE, Plaintiff demands judgment against Defendants, Jesse Stutts andTornado Masters for compensatory damages in an amount a jury may deem just and appropriateunder the circumstances, plus costs of this action.

COUNT THREE

(Wantonness Jesse Stutts & Tornado Masters)


40. The Defendants wantonly constructed and/or supervised the construction of thePlaintiffs steel storm shelter.

41. As a proximate and direct consequence of the Defendants wantonness, thePlaintiff was caused to suffer the damages set forth in Paragraph 32, herein above.

WHEREFORE, Plaintiff demands judgment against Jesse Stutts and Tornado Mastersfor punitive damages in an amount a jury may deem just and appropriate under thecircumstances, plus costs of this action.


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COUNT FOUR

(Implied Warranty of Good Workmanship Jesse Stutts & Tornado Masters)


43. The Plaintiff contracted with the Defendants, Jesse Stutts and Tornado Masters toconstruct a steel storm shelter in conformity with applicable building codes for one hundred andforty-four (144) students and faculty to occupy legally and safely. The Defendants breached theimplied warranty of good workmanship to the Plaintiff by failing to construct the steel stormshelter with the degree of skill and workmanship possessed by those of ordinary skill in theconstruction trade.

44. As a proximate and direct consequence of the Defendants breach of said impliedwarranty of good workmanship, the Plaintiff was caused to suffer damages set forth in Paragraph34, herein above.

WHEREFORE, Plaintiffs demand judgment against all Defendants for compensatoryand punitive damages in an amount a jury may deem just and appropriate under thecircumstances, plus costs of this action.

COUNT FIVE(Deceptive Trade Practices Act Violation - Jesse Stutts & Tornado Masters)


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, ordeceptive 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 sub-standard steel storm shelter which constitutes an unlawful trade practice in violation of the Act inthat these Defendants were required by virtue of their licensing by the State of Alabama and theterms of the construction permit issued by the City of Huntsville to meet or exceed all of theapplicable building codes. In addition, these Defendants induced the Plaintiff to pay $80,800.00in reliance upon the express representation the steel storm shelter was suitable to be safelyoccupied by up to one hundred and forty-four (144) of the Plaintiffs students and faculty whileknowing or, in the exercise of reasonable diligence for someone licensed to build steel stormshelters 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 andTornado Masters, deceptive trade practices, the Plaintiff was caused to suffer the injuries anddamages set forth in Paragraph 34, herein above.


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WHEREFORE, the Plaintiffs demand judgment against the Defendants, Jesse Stutts andTornado Masters, for actual damages, treble damages, a reasonable attorneys fee and the costsof this action.

COUNT SIX

(All Counts-Fictitious Party Defendants)


49. The Plaintiff hereby alleges, breach of warranty, negligence, wantonness, fraud,suppression, willful misrepresentation, reckless misrepresentation, and innocentmisrepresentation and any and all other theories of liability, whether in tort or contract, that arereferenced in the body of this Complaint or in the Style and Caption of this Complaint against allfictitious party defendants, whether named or unnamed. The Plaintiff is unaware of the truenames or identities of these parties. They will be added by amendment when ascertained.

WHEREFORE, Plaintiff demands judgment against the Defendants, and/or fictitiousparty Defendants A, B, and C, separately and severally, for compensatory damages and punitivedamages in such sum as a jury may deem just and appropriate, plus costs of this action.

_______Thomas S. McGrath (MCG 042)

Attorney for PlaintiffMcGRATH LAW FIRMP. O. Box 2469Huntsville, AL 35804(256) 464-5156(256) 464-0910 [email protected]

PLAINTIFF DEMANDS A JURY FOR ALL CLAIMS HEREIN

Thomas S. McGrath

lawsuit against tornado masters, jesse stutts

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