Fowler v. Campbell
| Decision Date | 26 April 1993 |
| Docket Number | No. 41A01-9205-CV-146,41A01-9205-CV-146 |
| Citation | 612 N.E.2d 596 |
| Parties | Elesmolee FOWLER d/b/a Fowler Construction, Appellant-Defendant, v. Michael G. CAMPBELL and Diane K. Campbell, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
Lynnette Gray, Jones Johnson & Gray, Franklin, for appellant-defendant.
James F.T. Sargent, Sargent & Meier, Greenwood, for appellees-plaintiffs.
This is an appeal from an action for breach of a contract to install a septic system. Elesmolee Fowler d/b/a Fowler Construction ("Fowler") appeals from a judgment in favor of Michael G. Campbell and Diane K. Campbell ("Campbells"). We affirm. 1
We restate the issues presented on appeal as follows:
1. Did Fowler breach his contract to install a septic system in the Campbells' new house?
2. Did the Campbells establish that it was Fowler's breach of contract which caused their damages?
3. Did the trial court, in effect, reform the contract when it entered judgment?
4. Were the damages the trial court awarded excessive and unsupported by the evidence?
The Campbells owned property on the lakefront of Lamb Lake in Johnson County. On March 2, 1988, the Campbells and Fowler executed a contract ("Contract") for Fowler to build a custom built house for the Campbells on this property ("House"), which included a septic system.
As lot owners on Lamb Lake, the Campbells were members of the Lamb Lake Estates Lot Owners Association ("Association") and were bound by the Association's rules and regulations. Those rules and regulations required that the Association's Architectural Control Committee ("Committee") review and approve plans for a septic system and that the Committee inspect and approve the system during installation. The Johnson County Department of Health ("Department") imposed similar requirements.
Before their Contract with Fowler was executed, the Campbells had consulted with the Committee and with the Department regarding their plans for the House and septic system ("Plans"). The Campbells employed a professional, Robert Etter of MAJ Civil Engineering ("MAJ"), who prepared a plot plan and a septic system design, and the Campbells then submitted these Plans to the Department and to the Committee for approval. The Committee did not approve the original plot plan as submitted. After making field measurements, the Committee revised the Plans by making changes in the location of the finger system to accommodate the actual distances and topography. The revised plot plan was signed by the Campbells and approved by the Committee on October 28, 1987.
The Department issued a septic system installation permit to the Campbells, dated November 6, 1987. The permit approved "minimum requirements" and installation "as shown on engineered plot." Record at 81. Thus, the permit incorporated by reference the Plans which MAJ had prepared. The Association approved the Plans for the The Contract stated that the Campbells would furnish the Plans, that the House would be built according to the Plans and that Fowler would furnish a "complete septic system according to Johnson County Health Dept. and Lamb Lake Association." Record at 17. The Contract provided that "[a]ll materials and labor will be furnished by Fowler Construction to meet building codes of Johnson County and Lamb Lake Association." Record at 17.
House and septic system on December 12, 1987.
During installation, the Association and the Department inspected the septic system to make certain that the system satisfied their requirements. With the apparent approval of the Committee, but not of MAJ or the Campbells, Fowler moved the septic tank from below the House toward the lake, where it was located on the plot plan, to an entirely different location up on the hill. No further changes in the septic system's design were approved by the Committee. After the septic system was completely installed, the Department made a final inspection so that an occupancy permit could be issued. Upon the final inspection at the Campbells' property, the Association returned the Campbells' $500.00 performance deposit. 2
It was shortly after Fowler completed construction of the House and within thirty (30) days after the Campbells had moved into the House on April 1, 1989, that the first sewage water back-up occurred. Fowler testified that he discovered cloths, plastic bags, and other debris in the septic pump which had caused it to lock up and to cease pumping. Fowler advised the Campbells that the septic pump had been damaged because of the debris which was introduced into the system. Fowler cleaned out the pump and it began functioning again.
Several weeks later, another back-up occurred. Again, Fowler found debris in the septic pump. He notified the Campbells that these objects placed in the septic system were preventing it from functioning properly. Fowler told the Campbells that the septic pump was damaged and that a new one should be installed.
A third back-up occurred beginning in June of 1989. Also, during the summer months, sewage seeped out of the finger system onto the Campbells' driveway and yard. Fowler again visited the property, and on that visit Fowler took members of the Association and Department with him to observe the septic system's condition. The septic pump had again stopped working because foreign objects had become clogged in it. The Department official who accompanied Fowler to the Campbells' home told the Campbells that the problems they were having were not caused by any deficiency in the septic system's design, but rather were "due to the apparent misuse of the system." See Record at 377.
The Campbells contend that it was not until after this third back-up that they first learned, in October of 1989, that the septic system had not been installed according to the original Plans. Thereafter, Fowler installed a new septic pump, another 1,000 gallon septic tank and a warning light at a cost of $2,200.00, and the Campbells agreed to this new installation although they paid nothing for it. After the new pump was installed, no further sewage water back-ups occurred in the Campbells' home, although sewage water continued to seep through the fingers of the septic system onto the Campbells' driveway and yard. The warning light stayed on continuously, and in November of 1989, the pump again stopped working. When the Campbells uncovered the pump station, sewage ran out of the pump, down their yard, and into the lake. The Campbells claim that they tried again to contact Fowler but that he never responded.
During the winter of 1989-1990, the pump was not working. In May of 1990, the Campbells hired Jack Justice, a licensed electrician ("Justice"), who examined the pump and found numerous electrical code violations. Justice found that sewage water On May 9, 1990, the Campbells filed a complaint for breach of contract against Fowler. After a bench trial, on October 15, 1991, the trial court entered judgment in favor of the Campbells and awarded them $12,199.57 in damages. This appeal followed. We will state other relevant facts in our discussion of the issues.
had entered the pump housing and "burnt the pump up." Record at 45. Justice replaced the pump and rewired the pump station. The Campbells paid Justice $1,249.57 for his labor and materials in making these repairs
Initially, we note that on its own motion the trial court made special findings of fact and conclusions of law pursuant to Ind. Trial Rule 52(A). Since neither party requested that findings be entered, the general judgment controls those issues which are not covered by the findings. See State ex rel. J.A.W. v. Indiana Juvenile Parole Committee (1991), Ind.App., 581 N.E.2d 989, 991. Under Ind. Trial Rule 52(D), when a trial court enters special findings and conclusions sua sponte, we will review the case as one decided on a general judgment with respect to any issue on which the court has not made a finding, and we will affirm the general judgment upon any legal theory supported by the evidence. J.A.W., 581 N.E.2d at 991. Special findings control only as to those issues which they cover and will not be set aside on appeal unless they are clearly erroneous. Id; T.R. 52(A).
In our review, in order to determine whether a judgment is clearly erroneous, we apply a two-step analysis in which we consider both the findings of fact and the conclusions of law. Id. A judgment is clearly erroneous when unsupported by the findings of fact and conclusions thereon, and findings of fact are clearly erroneous when the record is without facts or reasonable inferences to support them. See DeHaan v. DeHaan (1991), Ind.App., 572 N.E.2d 1315, 1320, trans. denied. Fowler thus labors under a heavy burden in urging reversal.
The judgment below turns on two essential findings: that Fowler breached the Contract when he did not install the septic system according to the Plans and that the Campbells suffered damages attributable to Fowler's alleged breach.
Fowler first contends that he did not breach the Contract because he installed a septic system which complied with the regulations of both the Association and the Department, as required under the Contract. We disagree.
The essential elements of a breach of contract action are the existence of a contract, the defendant's breach thereof, and damages. Peterson v. Culver Educational Foundation (1980), Ind.App., 402 N.E.2d 448, 461. Here, the parties agree there was a contract but disagree whether Fowler breached the Contract in his installation of the septic system and whether the breach, if any, caused the damages which the Campbells claim.
The Contract contained two provisions which must be reconciled. In its introductory paragraph, the Contract provided that, "House will be built according to plans." Record at 17. More specifically, in numbered ...
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