Adams v. US Homecrafters, Inc.

• Citation: 744 So.2d 736
• Decision Date: 03 June 1999
• Docket Number: No. 98-CA-00368-SCT.,98-CA-00368-SCT.
• Parties: Dennis ADAMS and Rita Adams v. U.S. HOMECRAFTERS, INC.
• Court: United States State Supreme Court of Mississippi

744 So.2d 736

Dennis ADAMS and Rita Adams v. U.S. HOMECRAFTERS, INC.

No. 98-CA-00368-SCT.

Supreme Court of Mississippi.

June 3, 1999.

Rehearing Denied September 2, 1999.

Robert H. Tyler, Biloxi, Attorney for Appellants.

James B. Galloway, Jackson, Attorney for Appellee.

BEFORE SULLIVAN, P.J., BANKS AND WALLER, JJ.

SULLIVAN, Presiding Justice, for the Court:

¶ 1. U.S. Homecrafters, Inc. entered into a contract with Dennis and Rita Adams on April 19, 1991, to build the couple a house on their previously purchased property for $53,048.25. Construction began in late June or early July of 1991. Even before construction was completed, Mr. Adams noticed that whenever it rained, the front porch area of the house would flood. The couple moved into the home after completion of construction, in early August of 1991. Six to eight months after they moved in, Mr. Adams realized that the flooding problem still existed. He dug trenches and placed cement pilings in front of the house in an attempt to divert water around the house and prevent it from entering their home. After each rain, Mr. Adams had to dig out the ditches again. However, approximately three inches of water continued to accumulate on the front porch whenever there was a significant rain, causing the railing across the front porch to rot and fall down. The water came within a quarter of an inch of getting inside the front door.

¶ 2. Mr. Adams stated that both he and his wife contacted U.S. Homecrafters for eighteen months about the problem with no response. The Adamses finally hired an attorney. Once the Adamses' attorney contacted U.S. Homecrafters, Terry Loveless, a former officer for U.S. Homecrafters, offered to attempt to repair the drainage problem by cutting contoured ditches on the site and placing landscape timbers to prevent erosion, but Mr. Adams refused to allow him access to their property. Pamela Loveless, Terry Loveless's wife and a former sales agent for U.S. Homecrafters, similarly testified that she proposed two solutions to Mrs. Adams to correct the drainage problem-use of landscape timbers or drainage ditches.

¶ 3. The Adamses filed suit against U.S. Homecrafters in the Circuit Court of Harrison County on January 28, 1994, seeking monetary damages for property damage and emotional distress due to the builder's breach of warranty. At trial, the Adamses' civil engineer expert, William Tully Rhodes, testified that U.S. Homecrafters had constructed the Adamses' home on a downhill slope "at grade," meaning that it was built at or near the ground surface, causing collection of water on the front porch. In Mr. Rhodes's opinion, building the house at grade was a violation of the builder's duty to exercise reasonable care.

¶ 4. Mr. Rhodes testified that the builder could have used a chain wall foundation during construction, added fill to raise the slab foundation, or graded or contoured the site to control storm water flow and prevent flooding of the front porch area. Mr. Loveless stated that he, rather than the Adamses, made the final decision to use a slab foundation rather than a chain wall. Mr. Rhodes saw no signs of contouring of the yard when he investigated the site in May of 1993, but Mr. Adams testified that at one point during construction he saw a bulldozer on the site scraping dirt away from the house. Mr. Rhodes stated that, even with contouring, the potential for soil erosion or silting would remain if no maintenance or landscaping were conducted.

¶ 5. Mr. Rhodes offered two proposals for correcting the drainage problem on the Adamses' home site, one costing $7,731, and the other costing $6,341. He also stated that Mr. Adams's attempts to alleviate the problem by digging trenches was reasonable under the circumstances. However, he did not recommend the use of trenches or ditches as a permanent solution from either a safety or an aesthetics standpoint. Mr. Rhodes's opinion was that landscape timbers would not have been an effective means of preventing the runoff from accumulating on the front porch.

¶ 6. Mr. Loveless testified that fill was in fact put underneath the slab foundation of the house at the beginning of construction, leaving it approximately two to three inches above grade. He also confirmed that the bulldozer Mr. Adams saw at the end of construction was contouring the site to divert water away from the front of the house. Mr. Loveless agreed that he "guessed" Mr. Adams's efforts were a reasonable means of attempting to prevent water from entering the couple's home. However, Mr. Loveless asserted that the flooding on the front porch was caused by the Adamses' failure to maintain the contour in the yard. He testified that the Adamses were responsible for seeding the yard to prevent runoff, because landscaping was not covered under the construction contract. He assumed that the Adamses knew that it was their responsibility, because "it's kind of common sense ..." Mr. Adams, on the other hand, testified that U.S. Homecrafters never warned them about a potential drainage problem or the need for landscaping. Mrs. Adams corroborated this testimony.

¶ 7. The jury found in favor of the Adamses and awarded them damages in the amount of $6,731. Judge Terry entered judgment in favor of the Adamses in the amount of $6,731 on September 11, 1997. The Adamses appeal to this Court, assigning as error the trial court's denial of an instruction on damages for the reasonable value of Mr. Adams's labor in mitigating loss and for emotional distress.

STATEMENT OF THE LAW

I.

WAS THE JURY PROPERLY INSTRUCTED ON HOW TO ASSESS DAMAGES FLOWING FORM THE CONSTRUCTION AND SALE OF A NEGLIGENTLY BUILT RESIDENCE?

¶ 8. At the close of all testimony, the Adamses offered Jury Instruction P-4 on the elements of damages. Element two of the instruction allowed the jury to award the Adamses damages for the reasonable value of their efforts in preventing further damage to their house, and element three allowed the jury to award damages for mental anguish. U.S. Homecrafters objected to elements two and three, and after hearing arguments from counsel, Judge Terry agreed to grant the instruction after removing those two elements.

A. REASONABLE VALUE OF MITIGATION EFFORTS

¶ 9. The Adamses assert that the trial court erred in failing to instruct the jury on damages for the reasonable value of Mr. Adams's efforts in mitigating damages by digging and maintaining the ditches around their house. "[W]hile generally an injured person has the duty to use reasonable care, and to make reasonable effort to prevent or minimize the consequences of the wrong or injury, the rule is one of reason and that, where funds are necessary to meet the situation and the injured person is without the funds, he is excused from the effort." Tri-State Transit Co. v. Martin, 181 Miss. 388, 396, 179 So. 349, 350 (1938) (citing North Am. Acc. Ins. Co. v. Henderson, 180 Miss. 395, 404, 177 So. 528, 530 (1937)). "`As a general rule, a party is entitled to all legitimate expenses that he may show to have been incurred by him in an honest endeavor to reduce the damages flowing from or following the wrongful act.'" Vining v. Smith, 213 Miss. 850, 862, 58 So.2d 34, 38 (1952) (quoting 25 C.J.S. Damages § 49). "We agree with the general rule that a landowner can recover reasonable and necessary expenses incurred in an attempt to prevent future damages, so long as those expenses do not exceed the diminution in value the property would suffer if the preventive measures are not undertaken." City of Jackson v. Keane, 502 So.2d 1185, 1188 (Miss.1987) (emphasis in original).

¶ 10. U.S. Homecrafters maintains that Mississippi case law does not support an award of damages for reasonable value of the plaintiff's own labor toward mitigation of loss. It asserts that Mississippi law on this subject only allows a plaintiff to be reimbursed for reasonable expenses incurred in mitigating loss. We disagree. As Judge Terry pointed out at trial, Mr. Adams should not be punished for doing the work himself rather than hiring someone else to do it just to run up expenses. Had Mr. Adams sat idly by and allowed the runoff water to enter his home, causing even more damage, U.S. Homecrafters no doubt would have insisted on a reduction in the amount of the jury verdict for failure to mitigate. See Hudson v. Farrish Gravel Co., 279 So.2d 630, 634-35 (Miss.1973) (quoting 15 Am.Jur. Damages § 40, at 439 (1938)) ("[I]t is the duty of one whose property is injured or threatened with injury to take reasonable precautions and to make reasonable expenditures to guard against or minimize such injury; and if he fails to do so, he cannot recover damages for any injuries which by the exercise of reasonable care he could have avoided."); Travelers Indem. Co. v. Rawson, 222 So.2d 131, 135 (Miss.1969) (homeowners had duty within a reasonable length of time after original damage to roof to remedy the faulty situation and prevent subsequent damage). It would be unjust to deny Mr. Adams reimbursement for any proven value of his efforts to reduce the drainage problem through digging ditches around his house.

¶ 11. In Sites v. Moore, 79 Ohio App.3d 694, 607 N.E.2d 1114, 1116 & 1119-20 (1992), the Fourth District Court of Appeals of Ohio upheld an award for damages against the appellant contractor found to have breached a contract to remodel the appellees' house, including $9,821.86 to reimburse the appellees for their own labor and materials. In so holding, the Court stated:

In the case of a construction contract breached by the contractor, the proper measure of damages is "the reasonable cost of placing the building in the condition contemplated by the parties at the time they entered into the contract."... This logically includes the reasonable value of their own services employed as a substitute for appellant in his absence and breach of contract. Had appellant not left the job with the majority of the contract monies, app

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