Johnson v. Kirkwood, Inc., 13087

• Decision Date: 03 June 1981
• Docket Number: No. 13087,13087
• Citation: 306 N.W.2d 640
• Parties: Darrell L. JOHNSON, d/b/a Darrell's Auto Body, and Patricia Ann Johnson, Plaintiffs and Appellees, v. KIRKWOOD, INC., d/b/a Van Buskirk Construction Company, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 640

306 N.W.2d 640

Darrell L. JOHNSON, d/b/a Darrell's Auto Body, and Patricia

Ann Johnson, Plaintiffs and Appellees, v. KIRKWOOD, INC., d/b/a Van Buskirk Construction Company,

Defendant and Appellant.

No. 13087.

Supreme Court of South Dakota.

Argued Nov. 20, 1980.

Decided June 3, 1981.

Acie W. Matthews of Willy, Pruitt, Matthews, Farrell, Frankman & Johnson, Sioux Falls, for plaintiffs and appellees.

Richard W. Sabers of Dana, Golden, Moore & Rasmussen, Sioux Falls, for defendant and appellant; Steven W. Sanford of Cadwell, Brende & Sanford, Sioux Falls, on the brief.

MORGAN, Justice.

A Minnehaha County jury found for plaintiffs-appellees Darrell L. and Patricia Ann Johnson (appellees), in their suit for compensatory damages related to construction of an addition onto an already existing building. The jury also awarded appellees exemplary damages. The trial court denied defendant-appellant Kirkwood Inc.'s (appellant) motion for judgment n. o. v., or in the alternative, a new trial. Appellant appealed from that judgment. We affirm in part, reverse in part, and modify.

Appellees are the owners of real estate that is situated in Minnehaha County, South Dakota. On that land they have a building which they rent to Robert Polzen (Polzen), who operates his business from the building. During the summer of 1977 appellees decided to construct an addition, basically a warehouse made out of steel, onto the building.

Appellees contracted with appellant for the materials for the addition. They purchased the insulation and the steel structure for the addition from appellant and paid for those goods when they arrived.

Appellees made arrangements with Larry Jorgenson (Jorgenson) to erect the addition, and with Dennis Dale (Dale) to do the cement work. As it turned out, however, Dale was far behind in his work and was unable to do the cement work when appellees wanted it done, so appellant agreed to do the cement work for the same amount that Dale had bid.

In doing the cement work, appellant dug a trench and poured the footings and foundation wall. Jorgenson then began erecting the steel addition. Before the addition was enclosed, however, a snowstorm hit the area. The cold weather caused the ground to freeze, so that prior to appellant's being able to pour the cement for the floor, the ground had to be thawed. Since the addition was not yet completed, appellant erected a temporary door of two-by-fours and plastic over the opening in order to keep in the warmth to thaw the ground. Four oil burning heaters were used to accomplish the thawing.

After a few days smoke had noticeably accumulated on the outside of the addition. Appellant ran the heaters for an entire week, and the concrete for the floor was eventually poured. After the floor was finished and appellees were able to get inside the addition, they noticed that the interior walls were also covered with smoke. The insulation, which should have been white, was slightly burned and black from the soot and smoke. The steel beams were also black.

As it turned out, the exterior panels were also a different color from the color ordered. Apparently the manufacturer no longer made them in the color ordered, which was the color of the original building. Appellees, however, were unaware of this fact until the panels were already up and noticeably a different color.

The last day that appellant worked on the addition was January 11, 1978. Appellees still owed appellant $5,995.00, which they withheld because of the smoke damage to the addition and because of appellant's failure to construct a retaining wall. Appellant attempted to settle with appellees, but was unable to do so. On or about April 13, 1978, appellant timely filed a mechanic's lien on the property. Later, appellees noticed cracking in the concrete floor.

Polzen finally moved into a portion of the addition at a rental rate lower than that which he originally agreed to pay, due to the damage to the addition and the fact that appellees did not have all of the work completed.

Appellees filed a complaint against appellant claiming that (1) appellant negligently placed the oil heaters in the addition and caused the smoke damage to result; (2) appellant failed to complete the contract in that it did not construct the retaining wall; (3) appellant failed to obtain exterior walls in the proper color; and (4) appellant willfully and maliciously caused a cloud on appellees' title by filing the mechanic's lien. Appellees also asked for exemplary damages and that the mechanic's lien be found void and of no force or effect. Appellant answered and counterclaimed for the remaining money due, plus interest, and for foreclosure of the mechanic's lien.

Following bifurcation of the trial, the parties tried all of appellees' issues to a jury. After both sides had presented substantial amounts of testimony and evidence, the jury returned a verdict in favor of appellees as follows: $17,150 on their first cause of action; nothing on their second cause of action; $3,000 on their third cause of action; and $7,000 compensatory and $3,000 exemplary damages on their fourth cause of action.

Appellant moved for a judgment n. o. v., or in the alternative, for a new trial, but the trial court denied the motion. The trial court did, however, allow a setoff of $5,995 and $644.41 interest, the amount appellant claimed in its statement of claim (See SDCL 44-9-15) and prayed for in its counterclaim.

The parties then stipulated that the mechanic's lien would be released and discharged without either party waiving any rights or claims against the other party. Appellant appealed from the judgment, but appellees did not file a notice of review.

Appellant concedes that the jury verdict relating to liability for the smoke damage should not be disturbed. It argues, however, that the amount awarded by the jury was excessive and against the total weight of the evidence.

"Where the evidence is conflicting ... and reasonable men might draw different conclusions therefrom, the Supreme Court on appeal will not disturb the verdict of the jury based upon such evidence or the trial court's order denying motion for new trial on the ground of insufficiency of the evidence." Jamestown Plumb. & Heating Co. v. City of Jamestown, 189 N.W.2d 656, 659 (N.D.1971). What is important is that...