Fields v. J. Haynes Waters Builders

• Decision Date: 25 February 2008
• Docket Number: No. 26443.,26443.
• Citation: 658 S.E.2d 80,376 S.C. 545
• Court: South Carolina Supreme Court
• Parties: James W. FIELDS and Rosemary L. Fields, Appellants, v. J. HAYNES WATERS BUILDERS, INC., Mahoney Brothers, Inc., and Dryvit Systems, Inc., Defendants, of whom J. Haynes Waters Builders, Inc., is Respondent.

658 S.E.2d 80

376 S.C. 545

James W. FIELDS and Rosemary L. Fields, Appellants, v. J. HAYNES WATERS BUILDERS, INC., Mahoney Brothers, Inc., and Dryvit Systems, Inc., Defendants, of whom J. Haynes Waters Builders, Inc., is Respondent.

No. 26443.

Supreme Court of South Carolina.

Heard December 4, 2007.

Decided February 25, 2008.

Charles A. Krawczyk, William R. Padget, and Robert "Sam" Phillips, all of Finkel Law Firm, of Columbia, for Appellants.

John L. McCants, of Ellis Lawhorne & Sims, of Columbia, for Respondent.

Chief Justice TOAL:

This is a direct appeal in a civil case arising out of the allegedly defective construction of a residence. Although the jury returned a verdict in favor of Appellants James and Rosemary Fields, the Fields appealed arguing that the trial court committed several errors relating to the admission of expert testimony, the admission of evidence, and the jury charges. The Fields further argue that the trial court erred in failing to order a new trial, a new trial nisi additur, or grant judgment not withstanding the verdict. We find that the trial court by and large committed no errors, and that where the trial court did err, the errors were harmless. Accordingly, we affirm.

FACTUAL/PROCEDURAL BACKGROUND

This case arises out of the allegedly defective construction of a residence purchased by Appellants James and Rosemary Fields ("the Fields") in 1999. The Fields are not the original owners of the home in question, but purchased the home from the owners who built the home some eight years earlier. At the time the Fields purchased the home, the exterior of the home was clad with a synthetic stucco material commonly known as an exterior insulation and finish system or E.I.F.S.

Roughly two years after purchasing the home, the Fields became aware of potential moisture intrusion problems associated with E.I.F.S.-clad homes. The Fields contacted a law firm, and the law firm put the Fields in contact with inspectors and investigators who determined that the E.I.F.S. on the Fields' home was allowing moisture to enter the home which was causing significant damage to the structure.

The Fields sued Respondent J. Haynes Waters Builders, the builder of the home ("the Builder"); Dryvit Systems, Inc., the manufacturer of the E.I.F.S. used on the home; and Mahoney Brothers, Inc., the subcontractors who installed the E.I.F.S. Roughly two months prior to trial, the parties attempted to resolve the case through mediation. During mediation, the Fields settled their claims against Dryvit and Mahoney Brothers. Thus, by the time of trial, the Builder was the only remaining defendant.

At bottom, several issues in this appeal arise out of the Fields' decision to repair their home prior to trial. The parties entered into two separate scheduling orders leading up to the trial in this case, and the scheduling order in effect during the summer of 2004 called for discovery to end by August 1st and set the matter for trial on or after October 4th. On July 30th, two days before discovery was to be complete, the Fields notified the defendants of their intention to immediately remove the E.I.F.S. from the home.

Prior to trial, the Builder sought to exclude a great deal of testimony and evidence related to the inspections and repairs of the Fields' home. As a basis for excluding the removal and repair costs from trial, the Builder asserted that the Fields violated the scheduling order by removing the E.I.F.S. and repairing the home past the order's discovery deadline. As a basis for preventing the initial inspector of the home and the repair contractor from testifying, the Builder argued that both the inspector and the general contractor had violated South Carolina's laws relating to the licensing and permissible work of home inspectors and general contractors. While the trial court permitted the Fields' repair contractor to testify and admitted the evidence of removal and repair costs, the trial court found that the initial inspector of the Fields' home was not qualified to testify as an expert.

The Builder also sought extensive discovery regarding the costs of the repairs to the Fields' home. The parties' seeking of discovery beyond the deadline set in the scheduling order became the subject of considerable disagreement prior to and during trial. This disagreement resulted in several motions to compel discovery and in the trial court's admission and exclusion of several items of evidence and types of testimony. Most notably, the trial court allowed the Builder to present expert testimony analyzing the repair costs the Fields incurred in removing the E.I.F.S. from their home. This testimony included an analysis of the Fields' repair contractor's material costs, overhead, and profit margin.

The case went to trial in March 2005. Although the Fields asserted eight causes of action in their complaint, the Fields tried the case on causes of action for negligence, breach of express warranties, breach of the implied warranty of workmanlike service, and strict liability.¹ At the close of the Fields' case in chief, the trial court granted the Builder a directed verdict as to the Fields' express warranty and strict liability claims. The case proceeded to verdict on the claims for negligence and breach of the implied warranty of workmanlike service, and the jury returned a verdict in favor of the Fields. The jury awarded $6,000 in damages, and the Fields appealed.

This Court certified the case from the court of appeals pursuant to Rule 204(b), SCACR, and the Fields raise the following issues for review:

I. Did the trial court err in (A) failing to qualify one of the Fields' potential witnesses as an expert on the basis that the witness failed to comply with South Carolina's home inspection licensing requirements, or (B) excluding a second bid for the repair of the Fields' home as inadmissible hearsay?

II. Did the trial court err in charging the jury (A) that a general contractor is not automatically liable for the negligence of a subcontractor, (B) regarding the licensing requirements for home inspectors and general contractors, or (C) regarding the acceptance of a product with a patent defect?

III. Did the trial court err in directing a verdict in favor of the Builder on the Fields' claim for strict liability?

IV. Did the trial court err in allowing testimony and evidence regarding the Fields' repair contractor's costs and profit margin?

V. Did the trial court err in failing to order a new trial, a new trial nisi additur, or grant judgment notwithstanding the verdict?

LAW/ANALYSIS

I. Exclusion of Testimony and Evidence

(A) The Inspector's Qualification as an Expert

The Fields argue that the trial court erred in finding that Bill Flaherty, the initial inspector of the Fields' home, was not qualified to testify as an expert witness on the basis that Flaherty failed to comply with South Carolina's home inspection licensing requirements. We agree, but we ultimately find that the error was harmless.

A person may be qualified as an expert based upon "knowledge, skill, experience, training, or education." Rule 702, SCRE. The qualification of a witness as an expert is a matter largely within the trial court's discretion and will not be reversed absent an abuse of that discretion. Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 252, 487 S.E.2d 596, 598 (1997). An abuse of discretion occurs when the trial court's decision is based upon an error of law or upon factual findings that are without evidentiary support. Id.

Our fairly recent decision in Baggerly v. CSX Transportation, Inc., is instructive. 370 S.C. 362, 635 S.E.2d 97 (2006). In Baggerly, this Court addressed a conflict between Rule 702's qualifications for experts and a statute that defined the practice of engineering to include the offering of expert technical testimony. Id. at 374-75, 635 S.E.2d at 103-04. Although the Court noted that the practice of engineering statute appeared to contain more specific requirements regarding expert testimony than Rule 702, the Court held that it would not interpret the statute to require that a person offering expert testimony in the field of engineering be licensed as a professional engineer. Id. In the Court's words, a contrary interpretation would "radically alter[]" the landscape of qualifying expert testimony. Id.

This case throws an important aspect of our decision in Baggerly into sharp focus. Baggerly properly recognizes that local licensing requirements are arguably inconsistent with Rule 702's operational framework for expert testimony. Rule 702 does not contain a set of mandatory qualifications that a witness must meet in order to be qualified as an expert. Instead, Rule 702 recognizes that there are a variety of ways in which a person can become so skilled or knowledgeable in a field that their opinion in a scientific, technical, or specialized area can assist the trier of fact in determining a fact or in understanding the evidence. Because a specific licensing requirement is potentially inconsistent with the variety of ways a person may gain specialized knowledge, Baggerly recognizes that a trial court's decision to refuse to qualify a person as an expert based solely on the failure to meet a licensing requirement arguably impairs the truth-seeking function of courts.

At the same time, however, this Court's jurisprudence emphasizes the role of the trial court as the gatekeeper in determining both the qualifications of an expert and whether the expert's testimony will assist the trier of fact. See State v. Council, 335 S.C. 1, 20, 515 S.E.2d 508, 518 (1999). While Baggerly makes it clear that non-compliance with licensing requirements or with the statutory law in specialized areas should not require, a fortiori, a trial court to refuse to qualify a witness as an expert, Baggerly does not stand for the proposition that a trial court should not consider these factors when judging a purported expert's...