Gentry Builders, Ltd. v. Freeman

• Decision Date: 20 November 1973
• Docket Number: No. 73--110,73--110
• Citation: 33 Colo.App. 144,517 P.2d 469
• Parties: GENTRY BUILDERS, LTD., Plaintiff-Appellee, v. Doris H. FREEMAN and Mildred E. Freeman, Defendants-Appellants. . II
• Court: Colorado Court of Appeals

Page 469

517 P.2d 469

33 Colo.App. 144

GENTRY BUILDERS, LTD., Plaintiff-Appellee, v. Doris H. FREEMAN and Mildred E. Freeman, Defendants-Appellants.

No. 73--110.

Colorado Court of Appeals, Div. II.

Nov. 20, 1973.

Rehearing Denied Dec. 4, 1973.

Certiorari Granted Jan. 21, 1974.

Blakemore McCarty, Ernest O. Tullis, Colorado Springs, for plaintiff-appellee.

Agee & Fann, Peter A. Goldstein, Colorado Springs, for defendants-appellants.

ENOCH, Judge.

This suit originated as a forcible entry and detainer action filed by Gentry Builders to recover possession of Mr. and Mrs. Freeman's home. The Freemans counterclaimed for damages resulting from breach of implied warranty of fitness. Stipulations entered into by the parties disposed of all issues on the F.E.D. action, and trial was held solely on the counterclaim. At the close of Freemans' evidence, the trial court granted Gentry Builders' motion for a directed verdict, on the grounds that no evidence of the amount of damages had been presented. The Freemans appeal from that judgments. We affirm.

Freemans purchased the property in question from Gentry Builders in November 1970. Defects in the house became apparent soon after the Freemans moved in, and as a result, the Freemans did not make payments on their promissory note secured by a second deed of trust held by Gentry. In a separate action, Gentry foreclosed and was issued a deed by the public trustee in November 1971.

On appeal, the Freemans contend that the trial court improperly excluded testimony of an expert witness on the issue of damages. Two expert witnesses testified that the builder failed to place voids in the non-bearing partitions of the house, and that this failure caused cracks to form when the expansive soil pushed against the rigid floor slab. In addition, the design of the patio and landscaping did not provide appropriate drainage, which resulted in extensive leakage.

Appellant then called a contractor to testify to the cost of repairing defects in the home. It was established that he was primarily a foundation contractor and had bid repair jobs in the Colorado Springs area for 15 years, but had no experience in placing voids. Several attempts were made to qualify this witness to testify as to the costs involved in repairing all of the defects in the home. Objections were sustained on the grounds that he had never placed voids or removed and replaced sheet rock in connection with the placing of voids. The witness was not questioned further, even though he had been qualified as an expert in foundation work and could have testified to the cost of repairing some of the drainage problems. In his offer of proof, counsel stated that the witness would have testified that the cost of remedying All of the defects was $8,000 to $10,000.

Appellants contend that, as a matter of law, the witness should have been permitted to testify as an expert on the cost of repairs and that his lack of experience in particular areas goes to the weight, not the admissibility, of his testimony. The law is firmly established in Colorado that the trial court's determination as to the qualifications entitling a witness to testify as an expert are conclusive unless clearly shown to be erroneous. Baldwin v. Schipper, 155 Colo. 197, 393 P.2d 363; Atencio v. Torres, 153 Colo. 507, 385 P.2d 659. The trial court's ruling in this case was not clearly in error and will not be disturbed on appeal.

Appellants rely on Rhodig v. Cummings, 160 Colo. 499, 418 P.2d 521, in which the court indicated that even though two doctors had not performed certain medical tests, they were qualified to...