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Locke v. Ozark City Board of Education4/15/2005
d.' West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)."
Brewer v. Woodall, 608 So. 2d 370, 372 (Ala. 1992).
III.
For the purposes of this appeal, we assume that the AHSAA Directory consitutes a valid contract between the Board and AHSAA.
On appeal, Locke first argues that he is an intended third-party beneficiary of a contract between the Board and the AHSAA. " f one person makes a promise for the benefit of a third party, such beneficiary may maintain an action thereon, though the consideration does not move from the latter." Franklin Fire Ins. Co. v. Howard, 230 Ala. 666, 667-68, 162 So. 683, 684 (1935).
"'"To recover under a third-party beneficiary theory, the complainant must show: 1) that the contracting parties intended, at the time the contract was created, to bestow a direct benefit upon a third party; 2) that the complainant was the intended beneficiary of the contract; and 3) that the contract was breached."'"
H.R.H. Metals, Inc. v. Miller, 833 So. 2d 18, 24 (Ala. 2002)(quoting Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So. 2d 99, 101-02 (Ala. 1987)). Further, "'" t has long been the rule in Alabama that one who seeks recovery as a third-party beneficiary of a contract must establish that the contract was intended for his direct, as opposed to incidental, benefit."'" Morris Concrete, Inc. v. Warrick, 868 So. 2d 429, 434 (Ala. Civ. App. 2003)(quoting McGowan v. Chrysler Corp., 631 So. 2d 842, 848 (Ala. 1993)(quoting in turn Mills v. Welk, 470 So. 2d 1226, 1228 (Ala. 1985))). " e look to the complaints and the surrounding circumstances of the parties to ascertain the existence of that direct benefit." Holley v. St. Paul Fire & Marine Ins. Co., 396 So. 2d 75, 80 (Ala. 1981)(citing Zeigler v. Blount Bros. Constr. Co., 364 So. 2d 1163 (Ala. 1978)); see also Anderson v. Howard Hall Co., 179 So. 2d 71 (1965).
In Zeigler, this Court addressed what is necessary to establish status as a third-party beneficiary of a contract. 364 So. 2d at 1163. In that case, a dam commissioned by a power company and built by a contractor collapsed. 364 So. 2d at 1165. Zeigler, a customer of the electrical power company, sued the contractor that had built the dam, arguing that his status as a consumer of electrical power made him a third-party beneficiary of the contract between the electrical power company and the contractor. Id. Specifically, Zeigler argued that because the contractor failed to construct the dam properly and the dam subsequently collapsed, he was being forced to pay higher bills for electricity than he would have had to pay had the dam been properly constructed. Id.
In determining whether Zeigler was a third-party beneficiary of the contract under the "surrounding circumstances" test, this Court looked to whether the power company itself was directly benefited by the contract, or whether the benefit manifested itself mainly to third parties. Zeigler, 364 So. 2d at 1166. This Court noted that the contract itself did not mention third parties or any benefits third parties would reap from the construction of the dam. Id. This Court found that " erformance of the contracts would, and did, result in an enhancement of [the power company's] real and riparian property holdings, to the direct benefit of the [power company] itself." 364 So. 2d at 1166. This Court further noted that there was no evidence indicating that the power company had considered the fees their customers would have to pay if the dam was built, and that there was no evidence indicating that a properly constructed dam would have necessarily resulted in lower electrical bills for the consumer. Z
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