Birch Prop. Partners, LLC v. Simpson

• Citation: 364 Ga.App. 315,874 S.E.2d 814
• Decision Date: 15 June 2022
• Docket Number: A22A0063, A22A0064
• Parties: BIRCH PROPERTY PARTNERS, LLC et al. v. SIMPSON. Simpson et al. v. Husfeld.
• Court: United States Court of Appeals (Georgia)

364 Ga.App. 315

874 S.E.2d 814

BIRCH PROPERTY PARTNERS, LLC et al.

v.SIMPSON.

Simpson et al.

v.Husfeld.

A22A0063, A22A0064

Court of Appeals of Georgia.

June 15, 2022

Russell Tiner Bryant, Lawrenceville, Lawrence L. Washburn III, for Appellant in A22A0063.

Paul Eric Andrew, Lawrenceville, for Appellee in A22A0063.

Paul Eric Andrew, Lawrenceville, for Appellant in A22A0064.

Russell Tiner Bryant, Lawrenceville, Lawrence L. Washburn III, for Appellee in A22A0064.

Miller, Presiding Judge.

These two appeals stem from the faulty construction of a home. After a bench trial, the trial court entered judgment in favor of the homeowner plaintiffs, Brian and Shannon Simpson, on their claims for breach of contract and breach of warranty against the builder, Birch Property Partners, LLC ("Birch Properties"). The Simpsons also filed a negligent construction claim against Greg Husfeld, the owner and operator of Birch Properties, but the trial court found in Husfeld's favor on this claim. In Case No. A22A0063, Birch Properties appeals from the trial court's judgment, arguing that (1) the trial court erred by failing to make findings of specific damages; (2) the trial court erred by awarding excessive damages; (3) the trial court erred by failing to make findings on its counterclaims; (4) the trial court erred by allowing certain expert testimony; (5) the Simpsons waived their claim for damages to the driveway by making modifications; and (6) the trial court erred by awarding attorney fees to the Simpsons. In Case No. A22A0064, the Simpsons cross-appeal from the trial court's judgment, contending that the trial court erred because it did not enter a judgment against Greg Husfeld in his individual capacity.

In Case No. A22A0063, we affirm the trial court's damages award to the Simpsons, but we reverse the lump sum award of attorney fees and remand this case for an evidentiary hearing to allow the Simpsons to segregate the number of hours that were allocated to their successful claims. In Case No. A22A0064, we affirm the trial court's judgment in Husfeld's favor.

"Where the trial court is the finder of fact, it determines weight, credibility, opinion evidence, sufficiency, and admissibility of all evidence; if there is any evidence to support the judgment, it must be affirmed." Rice v. Lost Mountain Homeowners Assn., Inc. , 269 Ga. App. 351, 357 (7), 604 S.E.2d 215 (2004). And "[w]here, as here, the parties do not request, and the trial court does not make, written findings of fact, any enumeration of error that would require consideration of a finding of fact cannot be reviewed on appeal. We review questions of law de novo." Gateway Community Svc. Bd. v. Bonati , 346 Ga. App. 653, 816 S.E.2d 743 (2018).

In April 2016, the Simpsons and Birch Properties executed an agreement for the construction of a home on a property in Hoschton, Georgia. The initial cost of the construction was $297,900, and the parties later amended the contract to reflect a revised total of $326,324.56. The Simpsons moved into the home around December 12, 2016. Approximately three weeks later, on January 6, 2017, Shannon Simpson sent a "punch list" to Birch Properties, itemizing various construction issues that needed to be addressed. Husfeld responded, "Got it. I will get these items scheduled and let you know when."

In April 2017, after no repairs had been completed, the Simpsons hired a structural engineer, Maureen Davis, to conduct a limited inspection of the home. Davis inspects commercial and residential buildings for construction defects and code compliance. In a detailed report, she identified, itemized, and included photographs of numerous areas of concern with the home. Ultimately, Davis’ professional opinion was that the home had been improperly constructed, that "distress [was] manifesting itself throughout the home," and that several defects needed to be repaired. In a letter dated May 15, 2017, Brian Simpson requested a "plan of action" from Birch Properties, and he also sent a copy of Davis’ report. Thereafter, the Simpsons and Birch Properties continued discussions regarding repairs at the property, but in July 2017, the Simpsons requested that Birch Properties cease attempts to continue work on the property.

The Simpsons filed suit against Birch Properties for breach of contract and breach of warranty, and they also filed a negligent construction claim against Husfeld in his individual capacity. The Simpsons further requested attorney fees under OCGA § 13-6-11 on the basis that the defendants had acted in bad faith, had been stubbornly litigious, and had caused them unnecessary trouble and expense. Husfeld counterclaimed for attorney fees and litigation expenses on the basis that the claim against him was frivolous and lacked substantial justification. Birch Properties counterclaimed for wrongful attempted termination of contract, breach of contract, and attorney fees.

At the ensuing bench trial, Davis was admitted as an expert witness and provided extensive testimony on the specific major repairs required. There were large gaps in the wood flooring, and when she reinspected the home in 2020, portions of the flooring had delaminated from the concrete surface and parts of the floor were "popping." Davis testified that the flooring had not been properly installed and that the concrete surface was not adequately "prepped" before the wood was laid down. In her view, the flooring needed to be removed and reinstalled. Additionally, Davis observed that the driveway was improperly sloped, which was causing drainage issues and damage to the concrete. In her opinion, the driveway did not meet industry standards, and portions of the driveway needed to be replaced. Next, although the plans for the home included a foundation drainage system, it had not been installed. The drainage from the roof presented a code violation in that the "roof runoff" was not sufficiently extended which led to the over-saturation of the soil adjacent to the foundation of the home.

Davis further observed decay in the exterior trim and that water was not being adequately drained from the siding of the home, and she determined that the siding had to be removed. She also testified that while the plans for the garage called for steel I-beams, Birch Properties had downgraded to laminated veneer lumber beams. Because of the "end bearing" of these beams, there was distress in the rear wall, and upon her reinspection of the home in 2020, Davis saw that the cracks in the wall were expanding and impacting the operation of the windows in the garage. In order to remedy these issues, the wall cavities had to be opened, the sheetrock needed to be replaced, the window frames required readjusting, and the windows needed to be reset. Additionally, the quality of the stonework on the exterior of the home was poor, there were clumps of mortar in the stonework, and "many of the penetrations through the stone veneer" had not been sealed. Davis then testified about the attic, explaining that the home did not satisfy "the conditions of the building code" because there was no unobstructed path to the furnace equipment. Therefore, the ductwork needed to be relocated or the furnace itself had to be moved. Ultimately, Davis opined that Birch Properties was required to comply with the plans and specifications for the home, abide by industry standards and building codes, and perform the work in a "good and workmanlike manner." In her opinion, however, Birth Properties failed to meet the standard of care with regard to the defects to which she had testified.

Davis also testified to a host of miscellaneous concerns with the interior and exterior of the home, including the improper placement of the laundry room sink; misaligned kitchen cabinets; an improperly installed pocket door; drywall distress in the bathroom; a damaged patio door; and a condensate line that allowed water to drain directly onto the foundation, which can weaken the foundation of the home. Davis opined, however, that she did not view these miscellaneous items to be construction defects; rather, some of the items were important to the Simpsons and others reflected quality issues. Based on Davis’ report, Tom Hordos of Creative Edge Construction prepared an estimate for all of the repairs, which amounted to $216,798. Hordos, who was also admitted as an expert witness at trial, agreed that Birch Properties failed to build the home using the quality and standard of care typically used in the area for finishing homes. Birch Properties’ expert proposed alternative repairs to those listed in Davis’ report and testified that some of the repairs were not needed. In Husfeld's estimation, the repairs in Davis’ report amounted to $15,000.

The trial court entered a "final order and judgment" solely addressing the Simpsons’ claims and awarding them $156,620 on their breach of contract and breach of warranty claims and $21,679.28 in attorney fees. As to the negligent construction claim against Husfeld in his personal capacity, the trial court found in Husfeld's favor. The trial court determined that "there [was] no just reason to delay an entry of judgment against [Birch Properties]" and directed the entry of judgment for the Simpsons. Birch Properties filed a timely notice of appeal, and the Simpsons cross-appealed.

Case No. A22A0063

1. First, Birch Properties argues that the trial court erred because it failed to make specific findings regarding the amount of repair costs awarded for each construction defect. Birch Properties suggests that this omission means that the judgment was based on speculation, conjecture, and guesswork. We conclude that the absence of specific findings in the trial court's judgment does not warrant reversal.

"[D]amages must be reasonable and proven in a manner sufficient to allow the fact finder to estimate them with reasonable certainty free from speculation, conjecture and guesswork." (Citation and punctuation omitted.) John Thurmond &...