Christensen v. R.D. Sell Const. Co., Inc.

• Decision Date: 25 July 1989
• Docket Number: No. WD,WD
• Parties: Kenneth & Angela CHRISTENSEN, Respondents, v. R.D. SELL CONSTRUCTION CO., INC., Appellant. 40674.
• Court: Missouri Court of Appeals

Page 535

774 S.W.2d 535

Kenneth & Angela CHRISTENSEN, Respondents, v. R.D. SELL CONSTRUCTION CO., INC., Appellant.

No. WD 40674.

Missouri Court of Appeals,

Western District.

July 25, 1989.

William Lopez, Kansas City, for appellant.

Alan Dietchman, Kansas City, for respondents.

Before GAITAN, P.J., and MANFORD and ULRICH, JJ.

MANFORD, Judge.

This is a civil proceeding for damages upon a breach of implied warranty. The judgment is affirmed.

Plaintiffs, Mr. & Mrs. Kenneth Christensen, brought this action against defendant, R.D. Sell Construction Company, based upon a breach of implied warranty with respect to the condition of a new house constructed by defendant for plaintiffs. The case was tried to a jury which found in favor of plaintiffs and awarded damages in the sum of $5,000.00. R.D. Sell Construction Company (hereinafter appellant) appeals.

Appellant raises two points on appeal which charge, in summary, that the trial court erred (1) in denying its motion for a directed verdict, and (2) in giving Instruction Number 5 to the jury.

The pertinent facts are as follows. The Christensens signed a contract to purchase their first house from appellant, a builder. Appellant agreed to construct a new house for the Christensens for the price of $67, 000.00. In January of 1985, the construction was completed, the sale closed, and the Christensens moved into the house.

Approximately two months after the Christensens moved into the house, they noticed that the top of the driveway was peeling, cracking and scaling. Mr. Christensen complained to Don Sells, the owner of appellant construction company, regarding the early deterioration and cracking of the driveway surface. Don Sells stated that the damage to the driveway was caused by salt. He refused to make repairs.

Approximately six months after the Christensens moved into the house, they noticed that the stairs to the front door of the house began to crack where the stairs meet the house foundation. The stairs began to drop and pull away from the house. The Christensens notified appellant of the problem and appellant responded by patching the stairs. However, the patch did not hold. Appellant refused to make additional repairs. Although the stairs and the driveway continued to deteriorate, they were still usable.

Brian Jones, a general contractor, testified on behalf of the Christensens. He observed the defects in the driveway and testified that two-thirds of the driveway surface started to "shale off" to a depth of a quarter-inch to a half-inch. Areas on the driveway had "pock marks" and were chunking off. The coloring of the driveway was unusual. Jones testified that the only way to correct the problem would be to remove the driveway slab and replace it with new concrete. He estimated the repair cost at $3,000.00. Jones observed the front stairs. He testified that the stairs had shifted and left a gap between the stairs and the foundation. A substandard foundation could have caused this problem. The cost of repair was estimated at $2,200.00.

Linda McPhearson, a real estate appraiser, testified on behalf of the Christensens. She appraised the property as of June, 1985 at $62,000.00, given the existing problems with the driveway and stairs. Absent those problems, she valued the property at $67,000.00.

Willard Norton, a professional engineer, testified on behalf of the Christensens. He had inspected the driveway and found the surface pockmarked and spalling (i.e., flaking). The condition was getting progressively worse. He opined that the spalling was caused by very poor quality concrete installed with too much water, careless handling, and poor workmanship. Another cause was the addition of a mixture of flyash to the cement. Norton also inspected the stairs to the front door and testified that the stairs were falling loose and displacing laterally. Soil was dropping away from the underside of the steps. He opined that the quality of workmanship and concrete used in constructing the steps were substandard. On cross-examination, Norton stated that a driveway or steps is not considered part of the structure of the house.

It its first point, R.D. Sell Construction Company contends that the trial court erred in denying its motion for a directed verdict at the close of the plaintiffs' evidence and at the close of all the evidence because plaintiffs failed to establish with substantial and competent evidence that there was a latent structural defect and that the driveway and front stairs are not fit for any ordinary purpose. This first point is taken up and, after full consideration, is found to be without merit and ruled against the appellant for the following reasons.

In reviewing the denial of a defendant's motion for a directed verdict, an appellate court must view the evidence in a light most favorable to the plaintiff to determine whether the plaintiff made a submissible case. The court must give the plaintiff the benefit of all favorable inferences reasonably drawn from the evidence and disregard evidence of the defendant, except insofar as it aids the plaintiff's case. Sinopole v. Morris, 743 S.W.2d 81 (Mo.App.1987); Schnelting v. Coors Dist. Co. of Mo., 729 S.W.2d 212, 214 (Mo.App.1987). Guided by these standards in review of the evidence, this court finds no error in the denial of appellant's motion for a directed verdict. The Christensens presented sufficient evidence to make a submissible case on the theory of breach of the implied warranties in the purchase of a new home.

Appellant further argues that the Christensens failed to prove the existence of latent structural defects in the new home because they failed to present evidence that the defective driveway or defective stairs were an integral part of the structure of the house or supported the structure of the house. In brief, appellant argues that items external to the house or unrelated to the structure of the house cannot be covered by the builder's implied warranties. Appellant's argument is rejected because it misconstrues existing law and inappropriately attempts to narrow the scope of coverage afforded by implied warranties of new home construction.

In a departure from the strict rule of caveat emptor, the Missouri Supreme Court held in Smith v. Old Warson Development Co., 479 S.W.2d 795 (Mo. banc 1972), that on the basis of an implied warranty of habitability or quality, the original purchaser of a new home can recover from a builder-vendor for losses or damages resulting from latent defects in construction. In explaining the liability imposed upon the company which builds the new home, the court stressed the latent nature of defects and the inability of the average homebuyer to detect construction flaws:

Although considered to be a 'real estate' transaction because the ownership to land is transferred, the...