Gillham v. Larue

• Decision Date: 22 June 2004
• Docket Number: No. 25491.,25491.
• Citation: Gillham v. Larue, 136 S.W.3d 852 (Mo. App. 2004)
• Parties: Larry Dean GILLHAM and Willa Jean Gillham, Plaintiffs-Respondents, v. Don LaRUE, d/b/a LaRue Construction, Defendant-Appellant.
• Court: Missouri Court of Appeals

136 S.W.3d 852

Larry Dean GILLHAM and Willa Jean Gillham, Plaintiffs-Respondents, v. Don LaRUE, d/b/a LaRue Construction, Defendant-Appellant.

No. 25491.

Missouri Court of Appeals, Southern District, Division One.

June 22, 2004.

C. Bradley Tuck, Tuck & Lukachick, P.C., Springfield, for appellant.

Jennifer A. Mueller, Blackwell Sanders Peper Martin, LLP, Springfield, for respondent.

PHILLIP R. GARRISON, Judge.

Larry Dean Gillham ("Gillham") and Willa Jean Gillham (collectively referred to as "Plaintiffs") filed suit against Don LaRue, d/b/a LaRue Construction ("Defendant") claiming damages as a result of the installation of a metal roof on their home. Defendant appeals a judgment entered in favor of Plaintiffs after a trial to the court. We affirm.

Defendant was in the business of installing metal roofs manufactured by VicWest Steel ("VicWest"). In early 1998, Plaintiffs contacted him concerning the possibility of replacing the shake roof on their home with a metal one, because their existing roof was "nearing [the] end of its service life." At that point, Plaintiffs had experienced no leaks in their roof except for one at the rear of a detached garage. Defendant visited Plaintiffs' home, took measurements and later submitted a bid to do the work. The bid, which was accepted by Plaintiffs, was for a price of $25,416 for a standing seam metal roof. Included in the bid was new flashing.

The saga of Plaintiffs' problems with the new roof is too extensive to fully describe in this opinion. Suffice it to say that they experienced numerous leaks in the house each time it rained. For instance, sky lights in the house leaked each time it rained after the new roof was installed. Over time, leaks appeared in many rooms of Plaintiffs' home, sometimes even coming through light fixtures in the ceilings. Plaintiffs would call Jesse Simmons ("Simmons"), Defendant's foreman on this job, each time they had leaks. For a period of time, Simmons or other of Defendant's employees would come to Plaintiffs' home to investigate the leaks, telling Plaintiffs that they thought they had fixed the problem. The leaks continued, however, the next time it would rain. Plaintiffs even furnished Simmons with documents they obtained from Andersen Windows explaining how to seal around skylights. Simmons indicated he would obtain the materials to correct the leaks around the skylights, but never did.

Gillham testified that he had not talked with or been able to reach Defendant since September 11, 1998, the day Defendant picked up the final payment for the job. Finally, in January of 2000, Gillham sent a registered letter to Defendant outlining the fact that the ceilings in five rooms of the house, plus the garage ceiling, had been damaged by leaks; that Simmons had been to the house many times and had eventually repaired the garage roof by replacing metal panels that they said were improperly installed; and describing their unsuccessful attempts to contact Defendant and get the leaks repaired. A few days later, Simmons and his brother appeared at Plaintiffs' home and promised to come back the next day to work on the leaks, but did not do so. Plaintiffs continued to have leaks when it would rain, sometimes with water standing in light fixtures. On March 26, 2000 there were leaks in the living room for the first time. In fact, at that time, the water was coming down through light fixtures in the ceiling. Plaintiffs were able to reach Simmons after that rain by using a phone not listed in their names. Simmons did come out on that occasion, and found that panels of the metal roof had slid down into the gutter. Instead of taking the panels off and reinstalling them, Simmons tried to reposition them by hammering them back into place from the bottom. There was still a gap at the top of those panels, which Simmons covered with "tape and mastic." That apparently was the last time either of the Plaintiffs were able to reach Simmons although they attempted to call he and Defendant many times thereafter. At the time of trial, Plaintiffs were still using plastic in an attempt to protect the interior of their house when it rained.

Plaintiffs' suit was based on breach of contract and negligence. Other evidence, as it relates to the issues on this appeal, will be discussed in the body of this opinion. The trial court found that Defendant breached his contractual obligations by failing to install flashing, and was negligent by failing to install the roof in a workmanlike manner. The court also found that the roof could not be repaired in a way that would leave the finished product aesthetically pleasing; that Plaintiffs presented evidence that the diminution of value of the property with the defective roof was $64,000; that the cost of repairing the roof by replacement would be $65,300; that Defendant presented no evidence of what it would cost to repair the roof by replacing it; that replacing the roof panels is the only way it can be repaired to stop leaks and also leave it aesthetically pleasing; and, that since the measure of damages is the lesser of the cost of repair (by replacement in this case), or the diminution of value of the property, it entered judgment for $64,000. In doing so, the trial court said that while it found it difficult to believe that the cost of replacing the roof would exceed the original contract price by almost $40,000, there was no competent evidence upon which to award a lesser amount.

Our review of a court-tried case is governed by Rule 84.13(d)(3)¹ and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Delgado v. Mitchell, 55 S.W.3d 508, 511 (Mo.App. S.D.2001). Accordingly, we will affirm the judgment of the trial court unless there is no evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 511-512.

Defendant's first point on appeal asserts trial court error in entering judgment for $64,000 as an award for diminution of value because the only witness giving an opinion as to that valuation testified that this amount included both roof repairs and the finishing or remodeling of a bathroom in the home. Defendant argues that the only negligence or breach of contract claimed by Plaintiffs related solely to the replacement of the roof and the contract did not include finishing or remodeling a bathroom.

Defendant points out that the testimony relating to diminution of value was by Robert Kollmeier ("Kollmeier"), who testified for Plaintiffs. Kollmeier testified that the property had a fair market value, in its current condition, of $105,000, and $169,000 "if repairs were made." He said that his opinion of damage was the difference of those two figures ($64,000) if the repairs were made. He said there was damage within the interior and to the exterior of the residence, and that "there was some unfinished remodeling" that was a part of his opinion. On cross-examination, Kollmeier said that his value opinion of $169,000 was based upon repairs to the roof being made and "the minor remodeling" involving a bathroom.

Defendant neither objected to any of this testimony nor asked that it be stricken, but now argues that the judgment for $64,000 for diminution in value was against the weight of the evidence and was not supported by substantial evidence. Defendant does not mention the fact, either in his statement of facts or argument sections of his brief, that Kollmeier's report was introduced with the statement from Defendant's counsel that he had "[n]o objection." That report contained Kollmeier's opinion that the home "in its present condition, would be impossible to achieve fair market value due to the extensive roof repairs needed," and that "[u]ntil these repairs are completed the seller cannot complete their remodeling, repair interior damage caused by roof leakage, or make satisfactory disclosures with regard to real estate listing standards." Kollmeier's report also contained an opinion of current value of $105,000 and a fair market value after repairs of $169,000. Although the report does not specifically so state, it could be interpreted as saying that the "repairs" necessary to achieve a fair market value of $169,000 were those to the roof.

The only case relied on by Defendant under this point, other than those relating to the general standard of review in court-tried cases, is this court's decision in Delgado. There, respondent obtained a judgment for damage to a full-sized antique railroad train he stored on appellant's property on the theory that appellant breached an agreement to put the train engine on blocks and secure the train from vandals, the elements and other potential hazards. Id. at 508. The only evidence of damage came from respondent's testimony in which he said that he sustained damage of $50,000 for each of three units of the train. Id. at 511. He conceded, however, that since he had not seen inside one of them, his opinion was based on his observations of the other two, but that he had not gone inside even those, but had only peered through a broken door window on one, and through a boarded up window of another. Id. We reversed based upon appellant's point that respondent did not meet his burden of proving the existence of damages with "reasonable certainty." Id. at 512. In doing so, we said that a party claiming damages for breach of contract bears the burden of proving the existence and amount of damages with reasonable certainty, or stated otherwise, proof of actual facts which present a basis for a rational estimate of damages without resorting to speculation. Id. Defendant here, also latches onto language from Delgado that it would be plainly unjust "to compel a party to pay damages for something that may or may not have resulted and which are merely problematical or were not caused by the breach of contract." Id.

Delgado is not controlling here. The cases are factually distinguishable, and it is not apparent in Delgado...