Barnes v. Mitzel Builders, Inc.

• Court: North Dakota Supreme Court
• Writing for the Court: MESCHKE; VANDEWALLE
• Citation: Barnes v. Mitzel Builders, Inc., 526 N.W.2d 244 (N.D. 1995)
• Decision Date: 19 January 1995
• Docket Number: No. 940158,940158
• Parties: Terry L. BARNES and Nancy L. Barnes, Plaintiffs and Appellees v. MITZEL BUILDERS, INC., Defendant and Appellant and Dan Cashman, d/b/a Cashman Nursery, Defendant. Civ.

Page 244

526 N.W.2d 244

Terry L. BARNES and Nancy L. Barnes, Plaintiffs and Appellees v. MITZEL BUILDERS, INC., Defendant and Appellant and Dan Cashman, d/b/a Cashman Nursery, Defendant.

Civ. No. 940158.

Supreme Court of North Dakota.

Jan. 19, 1995.

James L. Norris, P.C. (argued), Bismarck, for plaintiffs and appellees. Appearance by Terry L. Barnes.

Dean F. Bard (argued), Bismarck, for defendant and appellant Mitzel Builders, Inc. Appearance by LeeRoy Mitzel.

MESCHKE, Justice.

Mitzel Builders appeals from an order of the trial court denying its post-trial motions for judgment as a matter of law and for a new trial. We affirm.

Mitzel Builders, a builder of homes, completed construction of a "speculation home" (not for a specific buyer) in Bismarck in early 1990. On August 3, 1990, Terry and Nancy Barnes bought the home.

The home was built according to the Bismarck City Building Code, with a perimeter drain tile system connected to a sump. A sump pump is not required under the Code, and none was installed. In August and September of 1990, the Barneses had Cashman Nursery landscape the yard. Next to the home, Cashman installed rock mulch on top of plastic sheeting with a rubber edging that protruded above the height of the rock layer. The Barneses added a concrete R.V. slab to park a recreational vehicle.

Small cracks appeared in the interior walls of the Barneses' home in the spring of 1991. Mitzel repaired them. The cracks reappeared, much worse, in the spring of 1992, along with new cracks. On inspecting the basement, LeeRoy Mitzel noticed that "[t]he cement floor was cracked at this time and some seepage was coming through the cracks," and "the sump was full of water and [I] suggested that Barneses obtain a pump and pump it out." Also, "the basement center bearing wall had risen because of a heave in the basement floor and the house was exhibiting distress." Mitzel did not repair the cracks, but did install extensions on several downspouts to divert precipitation away from the house. The Barneses installed a pump, and pumped the water out of the sump.

The Barneses hired experts in September of 1992 to perform tests around the foundation. The tests "show[ed] an average [backfill] compaction of only 74.5% and a moisture content averaging 6.7% over optimum." The basement floor "showed evidence of some movement." The floor had a "[n]oticeable unevenness" and was cracked, there was "substantial compression" on the interior partition, and there was cracking in other parts of the house. The experts concluded that there was "a relatively low degree of compaction," and that the backfill was "moderately permeable and would allow rapid infiltration of surface runoff from rainfall or other sources." In January of 1993, the resulting damage was estimated at $37,075.

The Barneses sued Mitzel in January of 1993, claiming breach of contract, breach of implied warranty, and negligence. Mitzel answered, alleging that Cashman's negligence contributed to the damage. The Barneses amended their complaint to add Cashman as a defendant. Before trial, Cashman settled with the Barneses. In January 1994, the case between the Barneses and Mitzel was tried before a jury.

At trial, the Barneses' geotechnical expert, Joel Zeltinger, testified that the perimeter backfill was improperly compacted to 70 to 82 percent, that the compaction should have been 90 to 95 percent, and that the cracks in the basement floor were caused "[b]y uplift of the expansive soil below the floor" and by "swelling of the soil underneath the house." Jens Traeholt, a structural engineer, testified that the heaving of the floor was due to "moisture getting into expansive soils underneath the slab," and that the backfill "needs to [be] replaced. Or recompacted." John Weekes, a city inspector for Bismarck, testified that, after corrections to the house were made, it had passed inspection, but that the backfill compaction was not checked by the city, and was left to the builder. Terry Barnes testified "that I had not touched anything because I was told not to" by Traeholt, and that no repairs had been done yet.

LeeRoy Mitzel blamed the problems on the landscaping changes. He also claimed that the R.V. slab altered the drainage around the house. Gary Arman, a professional engineer for Mitzel, testified that the bordered landscaping "create[s] a dam or water reservoir that will hold moisture adjacent to the structure," that the R.V. slab installed by the Barneses "did not provide what I would consider good positive runoff away from the structure," and blamed the water problems on excessive sprinkling and insufficient drainage from the rock-mulch landscaping and R.V. slab. However, Arman admitted that the backfill compaction was "not up to what we would consider normal standards." Herb Ebel, part-owner of the excavating company that compacted the backfill for Mitzel, testified that it was done properly, but that he did not know the ratio of compaction.

The jury decided that Mitzel's negligence caused all the damages, that no negligence by Cashman contributed, and that the Barneses had not failed to minimize damages. The jury verdict awarded the Barneses damages, and a judgment totalling $30,400.90 was entered for them.

Mitzel moved for judgment as a matter of law and for a new trial. The trial court denied the motions, Mitzel appealed, and the Barneses cross-appealed. The Barneses withdrew their cross-appeal, and we decide only the questions raised in Mitzel's appeal. ¹

Mitzel argues that the trial court erred in denying its motions for judgment as a matter of law and for a new trial. Specifically, Mitzel claims that the jury verdict was contrary to the weight of the evidence, that contributory fault by the Barneses was so great that it bars recovery, and that several jury instructions were erroneous. We disagree.

A post-judgment motion for judgment as a matter of law is a motion for judgment notwithstanding the verdict. In reviewing a denial of that motion, as we explained in Hoovestol v. Security State Bank, 479 N.W.2d 854, 861 (N.D.1992), citing Okken v. Okken, 325 N.W.2d 264, 267 (N.D.1982), we employ the same rigorous standard as the trial court must, that is "whether or not the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion." We have also explained the standard of review for a new trial:

When the sufficiency of the evidence to support a jury verdict is challenged, we will not invade the province of the jury to weigh the evidence or to determine the credibility of witnesses. Our review of questions of fact is limited to consideration of whether there is substantial evidence to sustain the jury's verdict. In making that determination, we view the evidence in the light most favorable to the verdict.

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