Eisenmann v. Podhorn, ED 103171.
| Decision Date | 09 May 2017 |
| Docket Number | No. ED 103171.,ED 103171. |
| Citation | 528 S.W.3d 22 |
| Parties | Carl EISENMANN, et al., Plaintiffs, v. Richard PODHORN, et al., Defendants, Beris Construction, L.L.C., Respondent/Cross–Appellant, and C.B. Engineering, Inc., Appellant/Cross–Respondent. |
| Court | Missouri Court of Appeals |
Steven M. Cockriel, Michael J. Rolwes, St. Louis, MO, for Appellant.
Brandon B. Copeland, David P. Bub, St. Louis, MO, for Respondent.
C.B. Engineering, Inc. ("Appellant") appeals the judgment entered upon a jury verdict awarding Beris Construction, L.L.C. ("Respondent") $51,500 on Respondent's claims for professional negligence and contribution. Respondent cross-appeals the jury's damages award. We affirm in part, reverse in part, and remand for a new trial on damages.
Carl and Jessica Eisenmann (collectively "Plaintiffs")1 contracted with Parkway Joint Venture to build a home at 115 Place de Yeager ("Lot Eight"), part of the Chateau Du Bois subdivision in the City of Lake Saint Louis, Missouri ("the City"). Parkway Joint Venture then contracted with Respondent to serve as the general contractor for the project. Respondent was owned by Richard Podhorn, who was also the manager of Parkway Joint Venture. Respondent hired Michael Schwada as the project manager to oversee construction of Plaintiffs' home.
Parkway Joint Venture hired M Engineering to prepare grading plans for the Chateau Du Bois subdivision and the plot plan for Lot Eight, which showed the final planned grades and location of the home on the lot. The plot plan for Lot Eight contained no specifications for the grading to be performed on the lot prior to construction, therefore, the grading was conducted pursuant to the specifications contained in the subdivision grading plans. In relevant part, these specifications provided that all the fill used must consist of low plastic soils as approved by the soils engineer.
Before construction could begin on Lot Eight, soil work was needed including leveling the lot down to the natural earth and bringing in a significant amount of soil fill. The fill brought onto Lot Eight had to be laid, leveled, packed, and tested. Because Respondent did not employ engineers, Respondent hired Appellant to perform soil testing and observation on Lot Eight and to provide a letter from a professional engineer to the City certifying the soil was properly compacted and would support the home.2
Once Lot Eight was excavated down to reach natural dirt, Schwada had Appellant inspect the excavation and verify that it was sufficient. Then, fill dirt was laid on the lot in one-foot lifts and compacted. After each lift of fill was laid and compacted on Lot Eight, Schwada contacted Appellant to test or observe the fill on the site, in order to verify the lift's compaction rate was acceptable before the next lift was laid. However, Appellant did not test or observe at least one lift's compaction rate. The layer of fill not tested or observed by Appellant was the lift between six and seven feet below grade.
Before issuing a building permit, the City required: This report was part of the work for which Respondent hired Appellant. On December 2, 2011, Appellant sent Schwada the certification letter for Lot Eight, which was completed by Appellant's employees Blake Marquart and Karen Albert, a professional geotechnical engineer.
The certification letter, bearing Albert's professional seal, stated, "Cochran was on site to perform compaction observation and testing services on the fill materials placed to bring the lot to basement subgrade elevation." The letter then outlined the services performed by Appellant and its findings. The letter explained fill materials "consisting of high plastic clay, clayey rock, and low plastic silty clay" were placed in approximately one-foot thick lifts, and The letter concluded, "[n]o soft unacceptable areas were observed," and, "the materials placed under observation met or exceeded the minimum compaction requirements and are suitable for support of the residential construction."
The certification letter contained no limitation or qualification as to the extent of Appellant's testing or observation of the soils on Lot Eight. There was no disclaimer that Albert did not review the grading specifications, which mandated no high plastic soils were to be used in the fill material. Further, the letter did not indicate Appellant did not test or observe placement of all the lifts of fill laid on Lot Eight. Appellant did not state in the certificationletter or inform Respondent or the City that it did not test or observe the lift of fill between six and seven feet below grade.3
Respondent relied on the certification letter to ensure the soil would support the weight of Plaintiffs' home. Respondent then provided the letter to the City, and the City relied on its certifications when issuing the building permit to allow Respondent to proceed with construction on Lot Eight. If the letter had not been supplied to the City, the City would not have issued a building permit and Plaintiffs' home would not have been built. Further, if the letter had indicated Appellant did not test or observe all of the lifts placed on Lot Eight, the City would have rejected the certification letter and would have required the proper certification.
On March 17, 2012, Carl noticed cracking and leaking in the basement of the house and informed Respondent of the issue. On or around March 26 or 27, 2012, Tom Rothermich of Flint Hill Engineering went to Lot Eight to consult on the installation of a retaining wall at the request of Podhorn and Cochran. Rothermich was not informed of any problems regarding slope failure when he was asked to design and install the retaining wall. Therefore, Rothermich did not perform any additional soil stability or global stability analysis of the area where the retaining wall was to be installed. After the wall was completed on April 4, 2012, Rothermich provided a letter stating the construction of the wall with Redi–Rock was acceptable and conformed with or exceeded the design criteria.
Subsequently, Plaintiffs observed more cracks in the walls and foundation prior to closing on the home, brought the cracks to Podhorn's attention, and the cracks were sealed. In an email sent on June 10, 2012, Carl demanded an additional warranty to specifically address the "significant settling and cracking of the foundation" to cover future repairs for no less than ten years. On June 22, 2012, no cracks remained and Plaintiffs closed on the house, purchasing it for approximately $615,000. Plaintiffs had not received the additional warranty prior to that date, but received a warranty shortly after closing.
The cracks observed in the house prior to closing resurfaced and were progressively expanding at the time of trial, and the house slid down the lot's rear slope. On October 5, 2012, Plaintiffs' home was condemned by the City, as it was determined the house was unsound and no longer suitable for habitation. The City found that, inter alia , the foundations did not adequately support the structure.
On November 27, 2012, Plaintiffs filed a multi-count petition against Respondent, Appellant, Podhorn, and M Engineering4 in the Circuit Court of St. Louis County, and venue was later changed to the Circuit Court of St. Charles County. Respondent filed crossclaims against Appellant for professional negligence, negligent misrepresentation, fraudulent misrepresentation, indemnification, and contribution.5 Respondent filed additional crossclaims for indemnity and contribution against Crossroads Development, Inc. and Schrieter Concrete Company, two other subcontractors who worked on Lot Eight. The trial court granted all parties leave to amend their pleadings, to plead setoffs due to settlements, through the end of trial.
A few days before the trial was set to begin, Plaintiffs settled their claims against Respondent and Podhorn for $515,000. A settlement and release agreement was executed, which included a dismissal of any claims Plaintiffs had against Respondent, Podhorn, Appellant, and M Engineering. Respondent also stipulated to settlement of its crossclaims against Crossroads Development, Inc. and Schreiter Concrete Company for $75,000 and $5,000, respectively.
Respondent's crossclaims against Appellant proceeded to a jury trial, which was held May 5, 6, 7, and 11, 2015. In addition to the facts recounted in Section I.A. above, both parties presented their own theory as to the cause of the damage to Plaintiffs' home and introduced evidence to support their theories.6 At the end of Respondent's case-in-chief and again at the end of all the evidence, Appellant and M Engineering filed motions for a directed verdict. All motions for directed verdict were denied by the trial court.
During the jury instruction conference, Appellant tendered Instruction Eight, which the trial court accepted. Instruction Eight provided for the subtraction of any damages from Respondent's total award if the jury found Plaintiffs failed to mitigate their damages. Respondent timely objected to Instruction Eight and requested that the trial court submit Missouri Approved Instruction ("MAI") 4.01,7 but the request was denied. The court submitted four verdict directors to the jury, Instructions Nine through Twelve. Instruction Nine explained to the jury how they were to determine the reasonableness of the settlement between the Plaintiffs and ...
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...directed verdict and the denial of a motion for judgment notwithstanding the verdict is essentially the same." Eisenmann v. Podhorn , 528 S.W.3d 22, 29 (Mo. App. E.D. 2017). The question is "whether the plaintiff made a submissible case, which is a question of law we review de novo." Id. In......
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Kappel v. Prater, ED106216
...ofthe total medical bills admitted at trial despite finding Respondent liable. See Kearbey, 240 S.W.3d at 184; Eisenmann v. Podhorn, 528 S.W.3d 22, 38 (Mo. App. E.D. 2017) (finding that "juror confusion materially affected the case as it led to inconsistent verdicts"). However, this Court d......