LEMOINE CO. OF ALABAMA v. HLH CONSTRUCTORS
62 So.3d 1020 (2010)
The LEMOINE COMPANY OF ALABAMA, L.L.C.
HLH CONSTRUCTORS, INC.
Supreme Court of Alabama.
November 19, 2010.
The Lemoine Company of Alabama, L.L.C. ("Lemoine"), subcontracted with HLH Constructors, Inc. ("HLH"), for HLH to perform plumbing work on a construction project. HLH subsequently sued Lemoine, alleging, among other things, that Lemoine had not paid HLH the balance due under the subcontract. The trial court entered a judgment in HLH's favor, awarding damages, interest, and attorney fees. We reverse and remand.Facts and Procedural History
Vista Bella, Inc., and Lemoine entered into a contract, by which Lemoine agreed to act as general contractor on a condominium-construction project in Baldwin County ("the project"). Lemoine subcontracted the plumbing work for the project to HLH.
During the course of construction, and pursuant to the terms of the general contract, Vista Bella withheld a 5% retainage1 on the work performed. Each month, Lemoine sent Vista Bella an application for payment, in which Lemoine set forth details regarding, among other things, the value of the work completed during the month and the amount of the retainage withheld with respect to that work. Also during the course of construction, and pursuant to the terms of its subcontract with HLH,2 Lemoine withheld a 5%
retainage with respect to HLH's work on the project. HLH sent monthly applications for payment to Lemoine. These applications, like the applications sent by Lemoine to Vista Bella, indicated the value of the work HLH had performed during the month and the retainage withheld with respect to that work.
On July 3, 2007, a certificate of completion was issued for the project. On July 12, 2007, Lemoine billed Vista Bella for the retainage that had been withheld during construction. Vista Bella never paid the retainage. It appears that Vista Bella has paid Lemoine all amounts owed under the general contract, except for the retainage. Lemoine sued Vista Bella to recover the unpaid balance. Vista Bella failed to appear, and the trial court entered a default judgment in Lemoine's favor, awarding Lemoine $1,438,066.35 in damages, plus interest and costs. Lemoine states that, as of the date of trial in this case, Lemoine had not collected from Vista Bella any portion of the default judgment.