Bynum and Bynum v. Klentak and Sulewski, 96-2-05535-2

• Decision Date: 19 January 1999
• Docket Number: 96-2-05535-2
• Court: Washington Court of Appeals
• Parties: <PartyHeader> CHARLES BYNUM AND MAINE BYNUM, HUSBAND AND WIFE, RESPONDENTS, v. DARIUSZ KLENTAK AND WIESLAW SULEWSKI, APPELLANTS. </PartyHeader>

[1]
[2]	CHARLES BYNUM AND MAXINE BYNUM, HUSBAND AND WIFE, RESPONDENTS,; v.; DARIUSZ KLENTAK AND WIESLAW SULEWSKI, APPELLANTS.
[3]	No. 41225-6-I
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of King County Docket No: 96-2-05535-2 Judgement or order under review Date filed: 07/24/97 Judge signing: Hon. Sharon Armstrong
[6]	January 19, 1999
[7]	Counsel: Counsel for Appellant(s) Gerald F. Robison 648 S 152nd Ste 7 Seattle, WA 98148 Counsel for Respondent(s) Robert L. Olson Schiffrin Olson Schlemlen 2701 1st Ave Ste 300 Seattle, WA 98121-1123
[8]	The opinion of the court was delivered by: Webster, J.
[9]	Judges: Authored by Walter E. Webster
[10]	Concurring: William W. Baker Ann L. Ellington
[11]	UNPUBLISHED OPINION
[12]	A homebuyer successfully sued the builder-vendor for breach of implied warranty of habitability, breach of express warranty, fraud or intentional misrepresentation, negligent misrepresentation, and violation of the Consumer Protection Act. The builder-vendor appeals the finding of liability and damages for all claims, as well as the award of attorney's fees and expert witness fees. He also challenges the qualifications and testimony of an expert witness, the trial court's credibility determination, and the trial court's grant of a motion to amend the complaint. We affirm the Judgement, but reverse the award of expert witness fees.
[13]	FACTS
[14]	Charles Bynum bought a house from Dariusz Klentak and Wieslaw Sulewski in the summer of 1995.*fn1 Maxine Bynum, Charles's wife, had seen the house advertised in a multiple listing service; it was advertised as a new house, custom-built by a home builder. When the Bynums visited it, Klentak told them that he was an experienced builder and confirmed that it was a new, custom-built home. When the Bynums stated that they would need to have the house inspected, Klentak told them that an inspection was unnecessary because it was a new house. He further stated that he would provide a written warranty and correct any defects.
[15]	The Bynums began discovering defects with their house and property as soon as they moved in. The defects included problems with the foundation, the drainage system and retention pit, the stability of the driveway, the electrical system and plumbing, as well as with the finishing, stairs, gutters, and garage door. After a few unsuccessful attempts at resolving these problems, Charles Bynum brought suit against both Klentak and Sulewski in February 1996, alleging fraud, intentional or negligent misrepresentation, breach of express warranty, breach of implied warranty of habitability, and violation of the Consumer Protection Act.
[16]	The case went to arbitration, and the arbitrator awarded Bynum $43,454.36 in damages and attorney's fees and costs. Klentak and Sulewski then requested a trial de novo. Following a bench trial, the trial court entered Judgement for the Bynums.*fn2 In addition to costs and attorney's fees, the Bynums were awarded either rescission of the real estate contract and restitution totaling $153,523.24, or damages totaling $91,863.93 if restitution was not made within 60 days. Klentak appeals.*fn3
[17]	DISCUSSION
[18]	A. Amended Complaint
[19]	Klentak first contends that the trial court erred by allowing Bynum to amend his complaint on the first day of trial to add Maxine Bynum, his wife, as a party plaintiff. Under CR 15(a), "leave {to amend pleadings} shall be freely given when Justice so requires" unless prejudice to the opposing party would result. Shelton v. Azar, Inc., 90 Wn. App. 923, 928, 954 P.2d 352 (1998). The grant or denial of leave to amend is reviewed for abuse of discretion. Id.
[20]	Here, Klentak has made no showing of prejudice. He asserts that he was prejudiced because Maxine could stay in the courtroom, listen to the testimony of others, and then alter her testimony accordingly. While it is true that both Charles Bynum and the Bynums' neighbor testified before she did, nothing in the record indicates that Maxine altered her testimony accordingly. And as the Bynums indicate, Klentak was afforded the opportunity to cross-examine Maxine regarding any inconsistent statements, but failed to do so. We conclude that the trial court did not abuse its discretion in granting Bynum's motion to amend his complaint.
[21]	B. Expert Testimony of Showalter
[22]	Under ER 702, admissibility of expert testimony involves a two-step inquiry: whether the witness qualifies as an expert, and whether the expert testimony would be helpful to the trier of fact. Reese v. Stroh, 128 Wn.2d 300, 306, 907 P.2d 282 (1995). The admission or refusal of expert testimony lies within the sound discretion of the trial court. See id. at 310.
[23]	The Bynums' expert witness, Mike Showalter, testified that the Bynums' steep hillside was becoming increasingly unstable due to water saturation, and that the moving hillside was creating a structural problem for the foundation of the house and the deck. Klentak argues that Showalter impermissibly relied on slope calculations provided by a geotechnical consultant, Mike Byers, who was not called to testify.
[24]	However, ER 703 allows an expert to base his opinion on facts not admissible in evidence if it is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. . . ."*fn4 Thus, ER 703 "permits expert opinion testimony based on hearsay data that would be otherwise inadmissible in evidence . . . ." State v. Russell, 125 Wn.2d 24, 74, 882 P.2d 747 (1994); see also Reese, 128 Wn.2d at 309 (ER 703 permits an opinion based on information generally relied on in the expert's field).
[25]	Showalter specifically testified that it is normal and customary in his construction field to consult experts such as geotechnical engineers, as well as civil and structural engineers. Moreover, "{t}he evidence rules clearly envision experts' reliance on hearsay . . . and leave to the other party 'the full burden of exploration of the facts and assumptions underlying the testimony of an expert witness . . . .'" Cornejo v. State, 57 Wn. App. 314, 325-26, 788 P.2d 554 (1990) (quoting 5A K. Tegland, Wash. Prac. sec. 313, at 488 (1989)). Klentak had the opportunity to cross- examine Showalter regarding the slope calculation provided by Byers, but apparently chose not to do so.*fn5 We conclude that the trial court did not abuse its discretion in allowing this testimony.
[26]	Klentak also challenges Showalter's qualifications as an expert witness in this case. But Klentak did not object below to Showalter's testimony based on his qualifications. He has therefore waived this objection. See State v. Florczak, 76 Wn. App. 55, 72, 882 P.2d 199 (1994). But in any event, we conclude that there was no abuse of discretion in admitting Showalter's testimony as that of an expert witness, given his extensive experience in the construction field and his expertise regarding soil stability and water intrusion problems. See Queen City Farms, Inc. v. Central Nat'l Ins. Co., 126 Wn.2d 50, 102, 882 P.2d 703, 891 P.2d 718 (1994) (trial courts retain broad discretion in determining whether an expert is qualified and will be reversed only for manifest abuse).
[27]	C. Credibility
[28]	Klentak argues that the trial court erred by deeming his own expert's testimony to be not credible based solely on the fact that the expert was his attorney's brother. But as the Bynums point out, Klentak misstates the court's credibility determination. Rather, the court's finding is as follows:
[29]	"The defendants called as an expert witness defense counsel's brother, a civil engineer. (Defense counsel also owns the realty company which acted as defendants' selling broker in the transaction.) In addition to the obvious interest of the witness, the court did not find his testimony credible. He opined that the soil movement on the property was the result of surface erosion only at a depth of a few inches, that the retention pit was not incorrectly designed because there were two hill contours and the pit conformed to one of them, that garbage buried at the house's foundation presents no risk to the structure, and that trees growing at a marked angle do not evidence soil movement but are instead common. Yet the photographs . . . make clear that soil is moving well below the surface. For example, the neighbor's fence and rockery are bulging toward his property. If the movement was merely the result of top soil erosion, the dirt would have come over the top of the rockery or the fence rather than moving it below. Similarly, several trees have been pushed at an angle toward the neighbor's property, indicating significant subsurface movement. The court finds completely incredible the witness' statement that trees commonly grow at an angle, rather than upward toward the light." CP 137 (emphasis added).
[30]	Thus, the trial court provided several reasons for its credibility determination and plainly stated that its finding was "in addition to" its Conclusion that the expert had an interest in the case. Klentak's contention is misplaced.
[31]	Moreover, credibility determinations are for the trier of fact and cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). An appellate court is not entitled to weigh either the evidence or the credibility of witnesses even though the reviewing court may disagree with the trial court; this is because the trial court has the witnesses before it and is able to observe them and their demeanor upon the witness stand. In re Welfare of Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973).
[32]	D. Implied Warranty of Habitability
[33]	Washington long ago abandoned the doctrine of caveat emptor as applied to the sale of new residential dwellings by builder-vendors, by recognizing an implied warranty of habitability:
[34]	"{W}hen a vendor-builder sells a new house to its first intended occupant, he impliedly warrants that the foundations

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