Classic Restorations, Inc. v. Bean

• Citation: 272 S.E.2d 557,155 Ga.App. 694
• Decision Date: 10 September 1980
• Docket Number: No. 60318,60318
• Parties: CLASSIC RESTORATIONS, INC. v. BEAN.
• Court: United States Court of Appeals (Georgia)

Page 557

272 S.E.2d 557

155 Ga.App. 694

CLASSIC RESTORATIONS, INC. v. BEAN.

No. 60318.

Court of Appeals of Georgia.

Submitted July 10, 1980.

Decided Sept. 10, 1980.

Bruce D. Duncan, Doraville, for appellant.

Peter S. Wynkoop, Atlanta, for appellee.

QUILLIAN, Presiding Judge.

Classic Restorations, Inc., the plaintiff below, specializes in the restoration of vintage homes. Dixie Bean, the defendant, purchased a home in Inman Park with the intent of restoring it. On November 29, 1977, following a fire at her residence, Mr. Floyd-the sole stockholder in Classic Restorations, arrived in the same car as the insurance adjuster-Mr. Morrison. Floyd provided her with an estimate of repair which was later placed in contract form on December 7, 1977.

Defendant testified that "Mr. Morrison guaranteed (Floyd's) work, recommended him, informed me that if I used anybody else, I wouldn't get a penny over that." Mr. Morrison also told her "he would guarantee the work would be done the way I wanted it, to restore the house back to the way it was prior to the fire; that if Mr. Floyd did not perform the work and finish it, he would not be paid a penny until the work was done and done to my satisfaction." Mr. Floyd told her "(o)n November 29th, in that same conversation, he said 30 days, he could have it done in 30 days, have me back in the house by Christmas."

In April of 1978 Bean ordered Classic Restorations off the property. She was dissatisfied with the rate of progress of the work and the quality of the work that had been done. Classic Restorations brought this action for $6,914 on open account and the defendant Bean counterclaimed alleging damages of $7,000. The jury returned a verdict of $5,200 for the defendant. The plaintiff brings this appeal. Held :

1. Plaintiff has objected to various questions asked of several witnesses and to the refusal of the trial court to permit certain questions of other witnesses. The scope of examination and cross-examination is not unlimited, but the scope of permissible examination lies within the sound discretion of the court (Clark v. Board of Dental Examiners, 240 Ga. 289, 292, 240 S.E.2d 250) and curtailment of irrelevant, immaterial or repetitious inquiry by counsel is within bounds of such discretion, and an appellate court will not reverse absent abuse of discretion "unless some gross outrage to the party, and resulting damage to his cause, clearly appear. (Cits.)" Cohen v. Saffer, 43 Ga.App. 746(2), 160 S.E. 130.

One question involved a hypothetical situation based on facts not in evidence, i. e., "if ... you ran ten people through to look at ("a job"), you could possibly have ten different opinions about what was satisfactory or not?" No error appears here in the court's refusal to permit the question to be answered. Wells v. Alderman, 117 Ga.App. 724(11), 162 S.E.2d 18. Plaintiff objected to defendant being permitted to state that she planned to renovate her house. It was obvious from earlier testimony that the defendant had purchased a home in Inman Park that she planned to restore, and in dealing with the insurance adjuster had testified that "he would guarantee the work would be done the way I want it, to restore the house back to the way it was prior to the fire ..." There was no abuse of discretion.

One objection involved an alleged inconsistent statement of the witness. Credibility of a witness is a matter for the jury (Wilson v. Professional Ins. Corp., 151 Ga.App. 712, 714, 261 S.E.2d 450) and alleged inconsistencies of a witness' testimony go toward credibility. Id.

Plaintiff objected to defendant answering the question: "You describe what you observed about the way they repaired your bookcase." Quality of workmanship was one of the primary issues. This question was permissible of a nonexpert witness to establish the foundation for her opinion on the quality of workmanship of the plaintiff. Green, Georgia Law of Evidence 263, § 110; Code Ann. § 38-1708 (Code § 38-1708).

It is alleged that the trial court erred in failing to require the defendant to answer the question: "Did you curse a lot of people?" Plaintiff had stated on direct examination that it was "very possible" that she cursed because she "was very excited" and "may have been more graphic in person." We find no reason for reversal as it was tacitly admitted that defendant used profane language. Without detailing defendant's specific complaints, she testified that the contract was to be completed in 30 days and that statement was made in November and the following April-after boarding out her dog and cats, and living in a motel until the insurance company terminated her living expenses, and witnessing the lack of progress in the repair of her home and the quality of the repairs made she testified: "the house is undone ... There is more work to be redone. Moldings have been taken away and tossed away, apparently ... It will cost me more to take them out and have them duplicated. In my opinion, Mr. Floyd did more damage to the house than the fire did." The defendant and her expert testified as to paint "flaking off the ceiling," 9 boards-running the length of the room, of tongue and groove ceiling had been "cut out" "Cut is readily apparent. There was no attempt at caulking or puttying that ... paint not adhering"; the cabinets between the living room and dining room were not sanded or well fitted, "it was plain raw lumber, not stained, varnished or painted...", the bookcase between the living room and dining room-left door not hung properly, had rough pine shelving which would not permit the door to close, it was partially painted, "unfinished wood showing through ... they haven't been sanded," the molding was unfinished-not sealed, painted or caulked, the crown molding in the living room did not match the molding in the remainder of the house, neither the nail holes nor the joints had been caulked; the transom between the living room and dining room "bulges out," the facing "hasn't been painted, shellacked, stained, or anything. It's just raw lumber." Wallpaper seams overlapped or did not meet and the old wallcover was "bleeding" through the new paper. The wallpaper was peeling off the wall in places. A 16-pane window in the front of the house had been replaced with a 12-pane window.

Mr. Floyd testified that "I probably did tell her it would take about 30 days." He admitted that the tongue and groove ceiling was not repaired properly. His assessment of the painting job was that "I didn't think paint would be peeling off the walls, but it wouldn't be a jam-up job, either ... No, I wouldn't like it in my house." The standard for repair of the bookcase was to "(u)se finished lumber ... it doesn't look good inside the cabinet." He also admitted that he "didn't get as good a job (on the parquet type floor) as we wanted to." He commented on the paint that "because of the failure of the surface, the job did not go back like it was before. I would not have accepted that particular standard of work." Given Mrs. Bean's admitted predilection for invectives, we understand Mr. Floyd's observation that "Mrs. Bean is a very profane woman ..."

Plaintiff cites the failure of the court to permit him to question Mrs. Bean as to "when that lien was filed" that she testified Mr. Floyd had placed on her house. Counsel stated that he wanted to know when she found out about it. Mrs. Bean had testified that she attempted to get a loan to complete the repairs on her house but Banks "won't talk to you at all in the city, when there is a lien (on your house) about loaning money." Although this was a proper matter for cross-examination we find no prejudicial error in the curtailment.

In summary, there is no merit to enumerations of error 1 through 7.

2. The plaintiff contends the trial court erred in denying admission to its exhibit No. 5. Plaintiff describes it as "an invoice submitted to Mrs. Bean after we were ordered off the job ..." Mrs. Bean admitted that she received it. Defendant objected to its admission as "self-serving." The court refused to admit the exhibit because of its reference to "Code" work, and what was required by the Code was not introduced. Plaintiff's brief does not address this basis for denying admissibility. The brief merely restates the enumeration of error. This is nothing more than plaintiff's contentions, unsupported by citation of authority or argument-thus under Rule 15(c)(2) of this Court this enumeration is abandoned. O'Neal v. Haverty Furniture Co., 138 Ga.App. 346, 226 S.E.2d 141; Fowler v. Ford Motor Credit Co., 143 Ga.App. 680, 240 S.E.2d 608.

3. Objection is made to admission of defendant's exhibits 3, 6, 7, 8, 15, 17 and 18. At trial plaintiff stated he had no objection to exhibit 15. Its admissibility may not now be contested at the appellate level. See Velkey v. Grimes, 214 Ga. 420, 421, 105 S.E.2d 224. Of the remaining exhibits 3, 17 and 18 show the condition of the house on the day plaintiff was terminated. The contract shows that $465 was charged for cleaning. Floyd testified that the contract was "to repair the fire damage and clean up from the fire." These photographs, depicting lack of cleanup, have relevance to the issues.

Exhibits 6, 7, and 8 show how plaintiff stored defendant's property during the repair work and the condition the house was in on plaintiff's departure. These photographs have little relevance to any issue except the general manner in which plaintiff executed the contract. In any event the plaintiff must show harm as well as error and prejudice has not been exhibited. Continental Nut Co. v. Savannah Bank & Trust Co., 142 Ga.App. 509, 513, 236 S.E.2d 501.

4. It is alleged there was not "sufficient legal grounds" for admission of defendant's exhibits 31, 32, 33, 34, 35, 36 and 37. Defendant testified, without objection, that D-31 was a receipt for $450 it cost to have the floors redone in her house, D-32 was a repair bill for "packing" for the...