COMMERCE CENTER v. W. POWERS McELVEEN & ASSOCIATES, No. 3412.

• Court: Court of Appeals of South Carolina
• Writing for the Court: ANDERSON.
• Citation: 347 S.C. 545,556 S.E.2d 718
• Parties: COMMERCE CENTER OF GREENVILLE, INC., Respondent, v. W. POWERS McELVEEN & ASSOCIATES, INC., a South Carolina Corporation, and McDevitt Street Bovis, Inc., Defendants, of whom McDevitt Street Bovis, Inc. is, Appellant.
• Docket Number: No. 3412.
• Decision Date: 19 November 2001

347 S.C. 545
556 S.E.2d 718

COMMERCE CENTER OF GREENVILLE, INC., Respondent,
v.
W. POWERS McELVEEN & ASSOCIATES, INC., a South Carolina Corporation, and McDevitt Street Bovis, Inc., Defendants, of whom McDevitt Street Bovis, Inc. is, Appellant

No. 3412.

Court of Appeals of South Carolina.

Heard November 6, 2001.

Decided November 19, 2001.

347 S.C. 548

Robert L. Widener, of McNair Law Firm, of Columbia, for appellant

Henry W. Brown, of Nexsen, Pruet, Jacobs & Pollard, of Columbia, for respondent.

347 S.C. 549

ANDERSON, Judge

In this construction litigation case, W. Powers McElveen & Associates ("Architect") and McDevitt Street Bovis, Inc. ("Contractor") were found 20% and 80% liable, respectively, for the diminution in value of a building owned and subsequently sold by Commerce Center of Greenville, Inc. ("Commerce Center"). Contractor filed post-trial motions challenging various evidentiary rulings. These motions were denied. Contractor appeals. We affirm.

FACTS/PROCEDURAL BACKGROUND

In April 1997, Commerce Center acquired by assignment all of the partnership interests of Park Place Associates ("Associates"). Associates' interests included a five-story building known as the Park Place located in West Columbia. At the time of this transaction, Associates had two separate actions pending against Architect¹ and Contractor² for recovery of damages for certain defects in the design and construction of Park Place. Specifically, Associates complained that the windows on all but the first floor of the building leaked.

It was undisputed that an improperly constructed joint will fail prematurely and start leaking. The parties also agreed the windows leaked because of defective design and the poor workmanship of Contractor's window installation subcontractor. Contractor, however, maintained that the design defects, not Contractor's construction defects, were the greater cause of Commerce Center's damages.

The windows were sealed with a "conventional caulk joint." A conventional caulk joint is an industry term which describes a standard method of construction and type of seal used around windows. When a window is placed in its respective

347 S.C. 550

opening, it is positioned and held in place with plastic, horseshoe-shaped shims so that a space or gap of not less than onequarter of an inch and not more than three-quarters of an inch is left between the cladding material, which is the material on the building's exterior, and the top edge or the bottom edge of the window system. Next, a foam material called backer rod is inserted into the gap. A sealant-like caulk is then pressed into the gap on top of the backer rod. The backer rod limits the depth of the sealant joint (which is the in-and-out dimension of the joint) and allows the caulk to be pressed into its proper one-to-one ratio of depth to width. A proper ratio ensures a water-tight and lasting joint

Approximately two weeks after acquiring the building, Commerce Center sold Park Place to Liberty Property Limited Partnership ("LPLP"). Commerce Center continued the actions initiated by Associates. In its pleadings, Commerce Center alleged that it was required to discount the sale price by $175,000 because of the building's defects.³

At trial, Commerce Center elicited testimony that Contractor did not install the windows properly in that almost no backer rod was used, the joint spacing was inconsistent and frequently of improper width and depth, the fiberglass mesh under the cladding system was exposed in parts, and the shims were the improper size, misplaced, and often protruding into the caulking compound. Contractor acknowledged that essentially no backer rod was used on the building. L.G. Lewis, Jr., an expert called by Commerce Center, testified that the design of the windows did not deviate from accepted architectural practice and it would have performed "satisfactory" if properly executed.

On cross examination, Robert T. Coleman, III, Commerce Center's president, acknowledged that in 1996, Commerce Center believed a cause of the leaks, but not the exclusive cause, was a design defect. He also admitted that Commerce Center would have performed repairs to the building to

347 S.C. 551

change the design configuration of the window head even if backer rod had been installed by Contractor.

Commerce Center additionally proffered testimony of necessary remedial remedies to correct the window leaks. Simply adding new caulk would not act as a permanent fix to the leaking problem. Instead, the better, long-term solution was to install flashing across the top of the windows. Mark F. Williams, an expert retained by Commerce Center to design a solution for the leaks, testified about a remedial flashing design he devised. Williams testified his solution did not modify the window design; rather, it involved cutting an approximate eight-inch portion of the cladding away from above the windows and installing a metal flashing or drip edge around the entire building. This solution was considered the most cost-effective because it did not involve removing, repositioning, and reinstalling every window in the building. Lewis opined Williams' remedial solution was "reasonable." Although Commerce Center did not implement these design changes, LPLP did. There is no indication in the record that the building has leaked since renovation.

As part of its pre-trial discovery, in December 1997, Contractor submitted five questions to Associates in a Rule 36, SCRCP request to admit. Commerce Center, answering as assignee of Associates' interests, admitted the construction defects complained of consisted of only the omission of backer rod and improper joint size at the window head.⁴ However,

347 S.C. 552

Commerce Center specifically reserved its right "to supplement this response to the extent further deficiencies are discovered." Commerce Center further admitted it had turned down Contractor's offer to pay for recaulking the building and that it would have performed repairs to the building and changed the design configuration of the window head even if backer rod had been present.⁵

Contractor argued the substance of Commerce Center's admissions to the jury. It used a blow-up of admission number four as demonstrative evidence during its opening arguments and it published in part and argued the substance of the remaining admissions, particularly admission number two, during cross examination of Lewis. Additionally, Contractor referenced the admissions during its closing argument.

Contractor sought on at least three occasions to introduce the admissions into evidence. At the close of Commerce Center's case, Contractor also moved for a directed verdict based upon admission number two because the admission did not acknowledge any construction deficiencies other than the lack of backer rod and improper joint spacing. The court denied Contractor's motion. Concurrently, however, the trial judge granted Commerce Center's oral motion to amend its admissions to comport with the additional testimony of construction defects involving the shims. Over Contractor's objections, the trial judge found no prejudice in allowing this amendment.

347 S.C. 553

Contractor also attempted to introduce two letters sent from Commerce Center's attorney to Contractor and Architect dated June 25 and July 25, 1996, respectively, into evidence. The trial judge did not admit either letter, finding both documents related to settlement negotiations. The first letter explained Commerce Center had discovered the cause of the water leaks:

The principal problem relates to the configuration of the window heads, particularly at the curved wall and the placement of the sealing joint flush with the exterior surface.... It is apparent, therefore, that in order to produce a water tight building that will allow sealant joints to last the industry period of time, that the window heads need to be reconfigured.

The second letter reiterated Commerce Center's initial findings:

The revision of the window head detail is necessary to ensure the long term water tightness of the building. Periodic caulking is not going to be sufficient to maintain the integrity of the exterior skin of the building.

The jury returned a verdict in favor of Commerce Center for the entire $175,000 requested for its breach of warranty and breach of contract claims. The jury found Architect liable in the amount of $35,000 (20% at fault) and Contractor liable in the amount of $140,000 (80% at fault). Contractor filed post-trial motions for directed verdict, JNOV, reconsideration, and new trial. The trial court denied these motions. Contractor appeals.

LAW/ANALYSIS

Contractor states in its brief that "[t]he overriding question in this appeal is whether the trial court's exclusion of evidence, allowance of an amendment to a request to admit, and refusal to charge the jury on requests to admit deprived Contractor of a fair trial on the question of causation and apportionment of damages as between Contractor and Architect." Essentially, Contractor argues the trial court's alleged improper evidentiary restrictions in this document-intensive case caused the jury to reach an improper allocation of fault between Contractor and Architect. We disagree.

347 S.C. 554

I. Requests to Admit

A. Judicial Treatment of Admissions Made Pursuant to Rule 36, SCRCP

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the general rules of discovery that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Rule 36(a), SCRCP. The efficacy of these admissions is akin to the doctrine of judicial estoppel:⁶ an admission precludes the admitting party from arguing facts at trial contrary to its responses to a request to admit, absent an amendment to or revocation of the...