This is an appeal by both parties from a judgment of the trial court sitting without a jury in a case involving the installation by the plaintiff, Marston's Inc., of a floor covering on the Gerard High School gymnasium. Gerard High School is operated by the defendant, Roman Catholic Church of Phoenix. We have jurisdiction of the appeal by transfer from the Court of Appeals pursuant to Rule 19(e), Arizona Rules of Civil Appellate Procedure, 17A A.R.S.
The parties raise the following issues on appeal:
The facts necessary to a determination of these issues are the following. Plaintiff Marston's was the Arizona representative of Uni-Turf, a synthetic floor covering used in athletic facilities including gymnasiums
The work in the gymnasium was complicated by a number of factors. The gymnasium was not enclosed. The area had formerly been used for tennis courts and was constructed of abutting slabs of concrete. There was no subsurface "vapor layer" to prevent moisture from forming under the floor. In spite of these disadvantages, the decision was made to proceed with the work of installing the synthetic flooring. Gerard did the initial preparation of the surface. It was completed by Shannon Carpet Interiors, a licensed contractor hired by Marston's to install the floor covering.
Further complications arose due to the delay in starting work. By November, the weather was rainy and cold and Marston's had to rent space heaters to warm and dry the floor prior to installing the surface. Midway through the application, the gymnasium area was used on more than one occasion by a number of people attending events scheduled by Gerard. Attempts to protect the unfinished floor were unsuccessful and dirt and scratches were sealed into the floor. Shortly after the floor was completed, bubbles and other surface irregularities appeared in the floor. Testimony offered at trial blamed the bubbling on failure of the adhesive due to the absence of a vapor layer under the concrete. Ridges crossing the floor were attributed to the expansion and contraction of the concrete slabs under the synthetic floor. Marston's attempted for two years to repair the defects and Gerard made payments to Marston's in the amount of $9,941.32.
Marston's sued Gerard to recover payment for the application of the gymnasium floor. Gerard answered and counterclaimed for some $16,000, alleging that the materials were defective and unsatisfactory and that the work had been performed in an unworkmanlike manner. Marston's claim was dismissed for failure to state a claim upon which relief could be granted because Marston's had failed to allege and prove that it held a contractor's license as it was required to do under A.R.S. § 32-1153. Marston's then filed an amended complaint, alleging that a license was not required and urging contract, quantum meruit, and unjust enrichment as grounds for relief. Gerard defended alleging that plaintiff was an unlicensed contractor and not entitled to sue and asking that it be reimbursed for damages and payments made to plaintiff.
The trial judge made the following findings:
Both parties appeal.
WAS A LICENSE REQUIRED OF MARSTON'S IN ORDER TO INSTALL THE FLOOR?
Although Marston's held numerous contracting licenses, it did not have a Class
Marston's contends, however, that a license is not required, relying upon A.R.S. § 32-1121(8) which at the time read:
The question of whether products become a "permanent part of the structure" when installed depends on the facts and circumstances of each case. State ex rel Vivian v. Heritage Shutters, Inc., 23 Ariz.App. 544, 534 P.2d 758 (1975); Craftmaster Restaurant Supply Co., Inc. v. Cavallini, 11 Wn.App. 500, 523 P.2d 962 (1974); Harbor Millwork, Inc. v. Achttien, 6 Wn.App. 808, 496 P.2d 978 (1972).
Uni-Turf comes in large rolls and is attached to the prepared surface of the floor with an epoxy adhesive. Marston's assertion that the synthetic surface could be removed without damaging the concrete floor was uncontroverted. However, the evidence shows that removal would damage the Uni-Turf that was removed. We must determine whether these facts lead to a conclusion that the Uni-Turf was "fabricated into" and becomes a "permanent fixed part of the structure." A.R.S. § 32-1121(8).
Our Court of Appeals has stated:
Under the Court of Appeals test, material would be considered fixed and permanent if its removal would either prevent its reuse or damage the structure. We believe that damage to the material removed, while a factor to be considered, is not a necessary element in determining whether the material is fixed and permanent. Other courts, construing statutes similar to ours, have focused primarily on the damage to the structure that removal would cause. The New Mexico Supreme Court stated:
Other factors considered include the intent of the parties, the damage caused to the material by removal, and whether it is a "decoration" or an "improvement." Craftmaster Restaurant Supply Co., Inc. v. Cavallini,
In the case at bar, it was undisputed that removal of the Uni-Turf would not damage the concrete floor. The trial judge could reasonably conclude that the Uni-Turf was not "fabricated into" or a "permanent fixed part of the structure" and that a license was not required to install it.
There is, however, another reason why Marston's may prevail on this issue and that is its good faith reliance on advice from the Registrar of Contractors and the Arizona Attorney General. Marston's inquired whether a license was required. The Attorney General responded as follows:
The uncontroverted affidavit of Robert T. Bonnes, secretary-treasurer of Marston's, states:
Attorney General opinions are advisory only and are not binding on the court. State v. Toulouse, 122 Ariz. 275, 594 P.2d 529 (1979). This does not mean, however, that citizens may not rely in good faith on Attorney General opinions until the courts have spoken. We believe that Marston's had the right to rely on the opinion of the Attorney General until the court spoke. While it is not clear whether the trial court found, as a matter of fact, that the exemption contained in A.R.S. § 32-1121(8) applies or that Marston's should be excused because of reliance upon the opinions of the Attorney General and the Registrar of Contractors, or both, the decision would appear to be supported by reasonable evidence. We have stated:
We find no abuse of discretion in the court's ruling that because of the "unique" set of circumstances in the instant case, Marston's was not required to have a license.
The trial court held that Marston's could maintain the action against Gerard, but found that Marston's recovery of the balance due under the contract was offset by the damages Gerard suffered by the unsatisfactory workmanship. The finding that Gerard suffered damages due to improper installation and the amount of damages is supported by the evidence, and we will not disturb the trial court's finding on appeal. O'Hern, supra.
MAY GERARD RECOVER THE $10,000 IN LIEU OF DAMAGES?
Although the trial court found that Gerard was damaged in the amount of $6,911.00, Gerard claims that it is also entitled to recover the additional amount of $9,941.32 ($10,000)
Gerard was partially responsible for the poor condition of the floor. Against the express opposition of Marston's, Gerard insisted upon using the floor before it was completed. As Father Nanko of Gerard testified on cross-examination:
We believe the evidence supports the finding of the trial court that the actions of Gerard contributed to the damage to the floor. O'Hern, supra.
HOLOHAN, C.J., and FELDMAN, J., concur.