Bensch v. Davidson
| Decision Date | 28 April 2003 |
| Docket Number | No. 25633.,25633. |
| Citation | 580 S.E.2d 128,354 S.C. 173 |
| Court | South Carolina Supreme Court |
| Parties | Cynthia BENSCH and Gary Bensch, d/b/a Bensch-Mark Custom Builders, Respondents, v. Jim DAVIDSON, Linda Davidson and Randy West, Defendants, of whom Jim Davidson and Linda Davidson are Appellants. |
Otto W. Ferrene, Jr., of Ferrene & Associates, PA, of Hilton Head Island, and William E. Bird, of Bird Law Firm, PA, of Columbia; for appellants.
Curtis Lee Coltrane, of Coltrane & Alford, PC, of Hilton Head Island, for respondents.
We are asked to determine whether the trial court made certain errors in this breach of contract action. We affirm.
Respondents, residential home builders, and appellants entered into a contract for the construction of a home in the Rose Hill Plantation development. No fixed time was set for the completion of the contract.
From the outset of construction, appellants requested several material changes to both the construction method and the house design. These changes resulted in more expenses and affected the timeline of finishing the house, especially when some of the changes were requested after work had been completed. Some, but not all, of the changes were reduced to writing in the form of change orders.
Respondents also encountered problems when appellants had additional contractors appear unannounced on the jobsite to do certain jobs. In March 1998, respondents sent a letter to appellants regarding their use of third-party contractors and informed them that two of the contractors appellants hired had created drainage problems.
The contract between appellants and respondents called for respondents to submit regular requests for progress payments as construction was completed.1 Respondents submitted draw requests and written change orders to appellants. Appellants paid the first three draw requests and some of the change orders. The last payment respondents received was on November 5, 1997. Subsequently, two draw requests were submitted to appellants, however, the requests were not paid. Respondents continued working for four months after receiving the last payment and continued to pay suppliers and subcontractors until they ran out of money.2
On April 9, 1998, appellants' attorney sent a letter to respondents terminating them from the job immediately. Appellant Jim Davidson admitted on cross-examination that, at the time of termination, there was still work to be done under the contract and the change orders.
Prior to terminating respondents, appellants contacted Randy West, a general contractor, to have him determine whether the percentage of completion of the house was consistent with the amount of money that had been paid to respondents. West visited the job site and determined the statement of completion was not consistent with the amount that had been paid. However, West recommended that respondents be allowed to finish the job. After respondents were terminated, West agreed to complete the job and correct certain items.
Respondents brought an action against appellants. Appellants counterclaimed seeking damages for breach of contract as a result of respondents' defective and incomplete performance and damages for two other counterclaims.
Appellants alleged respondents built the house approximately two feet below the elevation level called for in the plans and failed to put in fill dirt to raise the level of the lot where the house would be placed. Appellants alleged the lack of fill dirt caused water to pool in and around the home.
At the close of the evidence, the court found appellants had breached the contract as a matter of law. Appellants' counterclaim for damages alleged to result from the failure of respondents to site the house properly on the lot and respondents' claims for damages and lost profits were submitted to the jury.
The jury returned a verdict in respondents' favor for appellants' breach of contract. The jury also, on a separate verdict form, found for appellants on their claim regarding the failure of respondents to site the house properly on the lot; however, the jury did not award any damages to appellants.
Did the trial court err by charging the wrong measure of damages for prevention of contractual performance?
Respondents requested the trial court charge the law under Warren v. Shealy, 83 S.C. 113, 65 S.E. 1 (1909), that appellants cannot recover for the costs they incurred to complete the house because they had refused to permit respondents to fulfill their performance of the contract. Appellants objected that the proposed charge would allow respondents to recover the full amount left on the contract when, due to their termination, they had not incurred certain costs. The trial court charged the jury as requested by respondents:
An owner of a building under construction, under a contract providing for payment of the price of the completion of work, who refuses to permit the contractor to complete the work is liable for the contract price less payments made and cannot counterclaim for the amount paid for finishing the building.
Appellants contend the expenses respondents did not incur should be reduced from the claim for the balance of the contract that was due to be paid. Appellants distinguish Warren v. Shealy because that case involved a contract for services only, and not a contract, as here, for services and materials. In Warren, appellants argue, it was appropriate for the non-breaching party to recover the full amount due under the contract because those damages represented profit or unpaid labor, not material costs that otherwise did not occur as a result of performance being prevented.
Appellants' assessment of Warren v. Shealy is correct. However, the trial court in this case in fact charged exactly what appellants are arguing the court should have charged. The trial court charged that after partially performing a contract, one who is wrongfully prevented from completing the contract may recover actual expenditures and damages for lost profits. The court also charged that the measure of damages for the breach of a contract is the loss actually suffered as a result of the breach. Further, the court charged that respondents' damages consist of out-of-pocket costs actually incurred as a result of the contract and the gain above the costs that would have been realized had the contract been performed. Therefore, appellants' argument that the trial court failed to charge the correct measure of damages is without merit. See South Carolina Fin. Corp. of Anderson v. West Side Fin. Co., 236 S.C. 109, 113 S.E.2d 329 (1960)
().
Appellants further assert Warren should not have been charged because the issue of appellants' counterclaim for the cost to complete the house had been removed from the jury's consideration. While it may have been unnecessary for the trial court to give the Warren charge, reading the charge as a whole, it is clear the court informed the jury of the correct measure of damages. The charge adequately covered the law of damages resulting from a breach of contract where one party is prevented from completing performance under the contract. We find the jury was not confused or misled by the Warren instruction. See Keaton ex rel. Foster v. Greenville Hosp. System, 334 S.C. 488, 514 S.E.2d 570 (1999)
(); see also State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994) (); State v. Rabon, 275 S.C. 459, 272 S.E.2d 634 (1980) ().
Did the trial court err by failing to require jury re-deliberation to correct the verdict?
The jury was given two verdict forms. One form represented respondents' action against appellants for breach of contract. This form requested the jury answer whether they found for respondents and if they found for respondents, they were to determine the amount of damages. The second verdict form covered appellants' counterclaim for breach of contract against respondents. The form asked whether the jury found for appellants and if the jury found for appellants, they were to "state the total amount of actual damage, if any, sustained by [appellants.]"
The jury returned a verdict finding for respondents in the amount of $129,000. On appellants' counterclaim, the jury found for appellants but did not find any damages. The trial court sua sponte clarified with the jury that their verdict on the counterclaim was a breach by respondents but no damages. At appellants' request, the court polled the jury and found the verdict stood.
Appellants argue the jury should have re-deliberated given the jury found for appellants on their claim, but nevertheless did not find any damages. They argue the court dismissed the jury without giving appellants an opportunity to request re-deliberation.
This issue is not preserved for our review. Appellants did not object to the verdict at the time it was rendered, failed to request that the verdict be resubmitted for clarification, and allowed the jury to be discharged before voicing their objection to the verdict. See Dykema v. Carolina Emergency Physicians, P.C., 348 S.C. 549, 560 S.E.2d 894 (2002)
(); Stevens v. Allen, 342 S.C. 47, 536 S.E.2d 663 (2000) (...
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Atlantic Coast Builders & Contractors, LLC v. Lewis
...508 (2010) (plaintiff must prove amount of pecuniary loss suffered as result of negligent misrepresentation); Bensch v. Davidson, 354 S.C. 173, 178, 580 S.E.2d 128, 130 (2003) (measure of damages for breach of contract is loss actually suffered by contractee as a result of breach). The prop......
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Atlantic Coast Builders & Contractors, LLC v. Lewis
...508 (2010) (plaintiff must prove amount of pecuniary loss suffered as result of negligent misrepresentation); Bensch v. Davidson, 354 S.C. 173, 178, 580 S.E.2d 128, 130 (2003) (measure of damages for breach of contract is loss actually suffered by contractee as a result of breach). The prop......
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Jenkins v. Few
...to reflect the addition of a witness or the intention to call a listed witness as an expert. Rule 33(b); Bensch v. Davidson, 354 S.C. 173, 182, 580 S.E.2d 128, 132 (2003) (“[T]here is a continuing duty on the part of the party from whom information is sought to answer a standard interrogato......
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Jenkins v. Few
...to reflect the addition of a witness or the intention to call a listed witness as an expert. Rule 33(b); Bensch v. Davidson, 354 S.C. 173, 182, 580 S.E.2d 128, 132 (2003) ("[T]here is a continuing duty on the part of the party from whom information is sought to answer a standard interrogato......
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Interrogatories
...26(e) of the Federal Rules of Civil Procedure, pertaining to “Supplementation of Disclosures and Responses.” 123.1 Bensch v. Davidson, 580 S.E.2d 128, 354 S.C. 173 (S.C. 2003). With respect to answers to interrogatories, there is a continuing duty on the part of the party from whom informat......
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Interrogatories
...Rule 26(e) of the Federal Rules of Civil Procedure, pertaining to “Supplementation of Disclosures and Responses.” 158 Bensch v. Davidson, 580 S.E.2d 128, 354 S.C. 173 (S.C. 2003). With respect to answers to interrogatories, there is a continuing duty on the part of the party from whom infor......
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Interrogatories
...26(e) of the Federal Rules of Civil Procedure, pertaining to “Supplementation of Disclosures and Responses.” 123.1 Bensch v. Davidson, 580 S.E.2d 128, 354 S.C. 173 (S.C. 2003). With respect to answers to interrogatories, there is a continuing duty on the part of the party from whom informat......