NSH Corporation v. City of Calera, [Ms. SC-2023-0612, Mar. 22, 2024] __ So. 3d __ (Ala. 2024). The Court (Mitchell, J.; Parker, C.J., and Shaw, Bryan, and Mendheim, JJ, concur) reverses the Shelby Circuit Court’s judgment in favor of the City of Calera against NSH Corporation (“NSH”).
The City of Calera (“the City”) dedicated the roads to the developer of “The Enclave” conditioned on the developer finishing the roads and maintaining them for one year. The initial developer went bankrupt prior to completing the roads.
In 2010, the City, BancorpSouth Bank and a new developer, NSH, entered a three-way contract to complete the subdivision. BancorpSouth was responsible for “final overlay of asphalt” up to a maximum of $58,000 and NHS was responsible for any work above that amount. Ms. *2. BancorpSouth did not perform its obligation.
In 2013, the City wrote to NSH, “asking NSH to ‘coordinate’ with the bank to have [the roads] completed.” Ms. *6. NSH did not respond. In June 2015, the City and the bank signed an agreement wherein the City agreed to “release” the bank from the contract in exchange for $58,000. Ms. *7. However, the City never used the money toward finishing the roads. The City then sued NSH for breach of contract, arguing that it should have either finished the roads on its own or compelled BancorpSouth to do so. The trial court ruled in the City’s favor and awarded it $138,797 in damages. Ms. *9.
The City argued its August 2013 letter was a demand for NSH to “‘do the [road] work and pay for it,’ which the City argued, triggered NSH’s payment obligations under the 2010 agreement.” Ms. *14. The Court agrees with NSH that the 2013 letter was not a demand for performance because there was no specific sum referenced, gave no cost projection, and asked nothing of NSH aside from coordination with the bank for the bank to fulfill its part of the contract. Ms. **15-16.