Doughty v. Simpson

• Decision Date: 16 February 1989
• Docket Number: No. 77732,77732
• Parties: DOUGHTY v. SIMPSON.
• Court: Georgia Court of Appeals

Page 57

380 S.E.2d 57

190 Ga.App. 718

DOUGHTY v. SIMPSON.

No. 77732.

Court of Appeals of Georgia.

Feb. 16, 1989.

Rehearing Denied March 13, 1989.

Certiorari Denied April 13, 1989.

Jones, Morrison & Womack, Lewis N. Jones, Atlanta, for appellant.

Benjamin W. Spaulding, Jr., Atlanta, for appellee.

BIRDSONG, Judge.

Leroy Doughty, d/b/a Doughty Remodelers and Builders, brings this appeal from judgment for appellee, Ronald Simpson, entered in a trial before the judge acting without intervention of a jury.

Simpson, an electrical contractor, entered into a contract with Doughty, who identified himself as "a home improvement carpenter" for the construction of a one-room addition to Simpson's home. The rear sundeck was to be removed and a room constructed in that location to house a jacuzzi. Doughty drew up the contract which covered the majority of one, letter-sized page and generally recited construction of a room in accordance with an attached drawing for the price of $12,500--$7,000 at the signing of the contract, $3,500 when the room was "dried in," and the balance of $2,000 when the "room is completed and final inspection is made...."

The contract was signed by both parties but contained no details as to construction, little guidance as to material to be incorporated, and no mention of installation of a slate floor and tiles surrounding the jacuzzi heating and air-conditioning, entry or exits, doors, stairways or steps.

The owner made the initial payment of $7,000. Doughty secured a builder's permit and construction commenced. The room was "dried in" and inspected by a City of Atlanta building inspector. The second payment of $3,500 was made and Doughty contends he completed construction. A final inspection was made by the city building inspector but final approval was not given.

The evidence is in conflict but the trial judge was authorized to find Simpson voiced his complaints to Doughty and the building inspector. The slate floor had been installed with the wrong side facing up. The grout between the tiles came out and the tile started coming up. The room was not properly aligned with the house and the boards were bent into place rather than a "hip" being constructed. The rear concrete steps were poured but not completed. A licensed heating and air-conditioning contractor was not used as required by the Building Code of the City of Atlanta and final approval was withheld. Dirt was piled up beside the house and washed onto the tennis court. The contractor parked his truck on the lawn and damaged the sod. When Doughty knocked a hole in the basement wall, the interior of the house was damaged, i.e., a marble top bar, the acoustical ceiling, etc.

Simpson discussed these problems with Doughty and said that the appellant told him: "Mr. Simpson I'm not going to do a durn thing else to your room." Simpson refused to make the final $2,000 payment and Doughty filed this action. Simpson filed a counterclaim for damages to correct the alleged defective work, for loss of use of his property for which he is unable to obtain a certificate of occupancy, for injury to the landscape and tennis court, for loss of income and beneficial use of money he paid to appellant which was not earned.

The trial court found that appellant has failed to obtain final inspection approval and to obtain a licensed heating and air conditioning contractor to get final approval of the room addition. The court also found that the appellee was denied use of the room addition, loss of interest charges on the loan made to finance construction of the room, loss of $3,300 in income due to his time spent away from his business due to appellant's breach of the contract, and that both city inspectors were of the opinion that the work done was not in compliance with City codes and was not of good quality.

The trial court held that the appellant failed to carry his burden of proof to entitlement of the remaining $2,000 contract balance or $1,425 claimed as quantum meruit for additional work alleged to be outside the contract.

The court found further that appellant breached the contract and his performance "was tardy, faulty and incomplete." Judgment was granted to appellee on his counterclaim in the amounts of: $5,841 to correct the deficiencies and complete work not done by appellant; $3,000 for loss of use of his property and $600 in attorney fees. Doughty has filed this appeal. Held:

1. The finding of the trial court denying recovery to appellant for the remainder due under the contract and for additional work done outside of the contract is supported by the evidence of record. The remaining $2,000 under the contract was due following final approval by the City. Final approval has been denied because of appellant's failure to use a licensed contractor to install the heating and air conditioning work, which is required by the City's building code. This deficiency has never been corrected. The trial court heard the conflicting evidence as to whether certain work done was included within the contract or was in addition to the contract. This issue was resolved in favor of appellee and the trial court's finding is not clearly erroneous. OCGA § 9-11-52(a); Bell v. Cronic, 248 Ga. 457, 459(2), 283 S.E.2d 476.

2. Error is alleged in the grant of judgment to appellee in the amount of $5,841.80 for repair on the work done or not completed. A duty is implied in every construction contract " ' " to perform it skilfully, carefully, diligently, and in a workmanlike manner," ' " and whether the contractor exercised the required degree of skill is for the trier of fact. Blue v. R.L. Glosson Contracting, 173 Ga.App. 622, 623, 327 S.E.2d 582. The trial court found that Simpson had been a licensed electrical contractor in commercial and residential construction in excess of 20 years and presented an estimate from a licensed general contractor showing the cost of repair as $5,841.80. Simpson's opinion testimony was admitted that the price quoted was reasonable for the work specified. Where the question to be decided by the finder of fact is "one of opinion, any witness may swear to his opinion ... giving his reasons therefor." OCGA § 24-9-65. Hence, it was not error to allow Simpson to testify to the amount necessary to correct the deficiencies in appellant's work and to complete the work in accordance with the contract as his opinion was based on his observation and personal knowledge and he gave the reasons for his opinion. Benn v. McBride, 140 Ga.App. 698, 700, 231 S.E.2d 438; Arkansas Fuel Oil Co. v. Andrews Point Co., 64 Ga.App. 595(1), 13 S.E.2d 738; Green, Ga.Law of Evid. 181, § 110. Determination of whether the witness has established sufficient opportunity for forming a correct opinion, and a proper basis for expressing his opinion, is for the trial court. Department of Transp. v. McLaughlin, 163 Ga.App. 1, 5(3), 292 S.E.2d 435.

Appellant argues that the estimate of the general contractor is hearsay and it was error to admit it in evidence. "Evidence of value is not to be excluded merely because the valuation fixed by the witness as a matter of opinion depends on hearsay, hence the testimony of the witness is not objectionable for the reason stated." Powers v. Powers, 213 Ga. 461(2), 99 S.E.2d 818; accord State Hwy. Dept. v. Edmunds, 113 Ga.App. 550, 553, 149 S.E.2d 182. The proper measure of damages for defective workmanship is the cost of repair of the defects. Simmons v. Boros, 255 Ga. 524, 525, 341 S.E.2d 2; Gregory v. Townsend Roofing Co., 163 Ga.App. 836(1),...