Gray v. Mark Hall Homes, Inc., 2D15–616.

• Decision Date: 05 February 2016
• Docket Number: No. 2D15–616.,2D15–616.
• Citation: 185 So.3d 651
• Parties: Angela M. GRAY, Appellant, v. MARK HALL HOMES, INC., and Mark Hall, individually, Appellees.
• Court: Florida District Court of Appeals

185 So.3d 651

Angela M. GRAY, Appellant,

v.MARK HALL HOMES, INC., and Mark Hall, individually, Appellees.

No. 2D15–616.

District Court of Appeal of Florida, Second District.

Feb. 5, 2016.

J. Frazier Carraway and Tracy M. Evans of Saxon, Gilmore & Carraway, P.A., Tampa, for Appellant.

Jonathan N. Zaifert and Manuel J. Alvarez of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellees.

KHOUZAM

, Judge.

Angela Gray appeals the final judgments entered against Mark Hall Homes, Inc. (MHH), and in favor of Mark Hall individually. Because the trial court erred in limiting the jury's verdict, we reverse and remand for its reinstatement. We affirm the remaining issues without comment.

In 2005, Angela Gray contracted with MHH to construct a single-family home on her property. Gray agreed to pay $168,144 in a series of installment payments for the construction of the home. Shortly after moving into the home, Gray discovered a number of defects which she brought to MHH's attention. MHH attempted to remedy the defects, but Gray eventually filed suit for breach of contract.¹

Gray presented the testimony of many witnesses regarding the condition of the home. Chief among the defects was the lack of flashing, which is typically installed between walls and roofs to prevent moisture from penetrating the house. Witnesses testified that lack of flashing caused damage throughout the house as moisture entered the home, causing wood rot to set in.

David Payton, a general contractor, testified that Gray paid him $16,000 to replace the balcony on the home. He also testified that when he initially evaluated the home, he told Gray to "get a bulldozer" and start over. He stated he would be hesitant to take on the job of repairing the entire house and that he would not even know where to start.

Wendell Brantley, a real estate agent, testified that he contracted with Gray to sell the house. When he first saw the house, Brantley too told Gray to tear it down because it was worthless. He further stated that a bank would not finance the home given its condition. He listed the house for a year but did not receive a single offer. He testified that the home was the worst house he had seen in his thirty-eight years in the real estate business and that the wood rot in the home was unbelievable.

Richard Kiddey, a structural engineer and home inspector, reviewed and approved the construction plans for the home. Kiddey also inspected the home prior to trial. He observed wood rot, water damage, mold, and doors that were so rotted that they could not open properly. Of approximately 3000 houses Kiddey had evaluated, he rated this home in the bottom ten. He testified that the home was not suitable rental property and uninsurable. He testified that the home was salvageable, but that such an endeavor would be expensive and that the cost would probably not justify the effort.

At the close of Gray's case, MHH moved for a directed verdict arguing that Gray had not properly proved damages. The trial court granted the motion in part, limiting damages to $16,000 because, in its view, the only concrete evidence of damages was Payton's testimony that he was paid $16,000 to replace the balcony. The jury returned a verdict for $168,000, but the trial court reduced the award to $16,000.

The trial court erred in limiting the damages in this case. In considering a motion for directed verdict, the trial court should evaluate the evidence "in the light most favorable to the plaintiff and every reasonable inference therefrom must be indulged in the plaintiff's favor." Scott v. TPI Rests., Inc., 798 So.2d 907, 909 (Fla. 5th DCA 2001)

. Further, "[i]f there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law." Id. "In ruling on [a motion for directed verdict], a trial court may not pass on the credibility of witnesses or weigh competing evidence." Allison Transmission, Inc. v. J.R. Sailing, Inc., 926 So.2d 404, 407 (Fla. 2d DCA 2006) (alteration in original) (quoting Stringer v. Katzell, 674 So.2d 193, 195 (Fla. 4th DCA 1996) ).

In Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037, 1039 (Fla.1982)

, the Florida Supreme Court adopted the Restatement (First) of Contracts' position on the measure of damages for a construction defect. The proper measure of damages for a defective construction contract is:

all unavoidable harm that the builder had reason to foresee when the contract was made, less such part of the contract price as has not been paid and is not still payable, determined as follows:

(a) For defective or unfinished construction he can get judgment for either

(i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or

(ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste.

Id. at 1039 (quoting Restatement (First) of Contracts § 346(1)(a) (Am.Law.Inst.1932)

) (emphasis added). The Grossman court went on to quote comment (b) to explain the rule:

The purpose of money damages is to put the

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