Kelley v. Widener Concrete Constr., LLC

• Decision Date: 11 June 2013
• Docket Number: No. SD 32149.,SD 32149.
• Citation: 401 S.W.3d 531
• Parties: Paul KELLEY Jr., and Connie Kelley, Trustees of the Paul Kelley, Jr. and Connie Kelley Joint Revocable Trust Dated November 16, 2006, Plaintiffs/Appellants, v. WIDENER CONCRETE CONSTRUCTION, LLC, Defendant/Respondent.
• Court: Missouri Court of Appeals

401 S.W.3d 531

Paul KELLEY Jr., and Connie Kelley, Trustees of the Paul Kelley, Jr. and Connie Kelley Joint Revocable Trust Dated November 16, 2006, Plaintiffs/Appellants,

v.WIDENER CONCRETE CONSTRUCTION, LLC, Defendant/Respondent.

No. SD 32149.

Missouri Court of Appeals,

Southern District,

Division One.

June 11, 2013.

Peter J. Lasley, of Carthage, MO, for Appellants.

James M. Paul, of Neosho, MO, for Respondent.

WILLIAM W. FRANCIS, JR., J.

Paul Kelley Jr. (“Paul”),¹ and Connie Kelley (“Connie”), ² Trustees of the Paul Kelley, Jr. and Connie Kelley Joint Revocable Trust dated November 16, 2006 (the “Trust”), appeal from a judgment, after a bench trial, awarding them damages for the cost to repair garage doors. The Kelleys assert two points of trial court error. We affirm the judgment of the trial court.

Facts and Procedural Background

Viewing the record in the light most favorable to the trial court's judgment, Ken Cucchi Const., Inc. v. O'Keefe, 973 S.W.2d 520, 523 (Mo.App. E.D.1998), the record reveals that the Trust is the owner of real estate located at 1909 Sherry Lea Drive in Neosho, Newton County, Missouri (the “residence”). The Kelleys reside at that address. The Kelleys hired Widener Concrete Construction, LLC (“Widener”) to pour concrete at the residence.

On December 1, 2007, Paul and Widener entered into a written contract whereby Widener agreed to pour approximately 7,000 square feet of concrete at the residence and stamp, color and seal the concrete, to include a driveway, sidewalk, and patio, for a total cost of $29,540. The pattern selected for the concrete driveway, patio, and sidewalk was a “random stone” pattern. Paul testified the concrete was supposed to be poured four inches thick. Widener warranted and guaranteed its work would be completed in a “substantial workmanlike manner.”

Darin Widener (“Darin”), co-owner of Widener, had only three years' experience doing stamp concrete at the time of the Kelley project. Widener testified that when he first met with the Kelleys, their primary concern was they “[j]ust wanted a nice driveway to go in front of a nice home” and “not just plain broom work[.]”

Within three or four days after Widener finished the concrete job, Paul noticed some faint random cracking in the concrete, which continued to get worse. The random cracks were about eight to twelve feet apart and the cracks were located throughout the driveway, patio, and sidewalk area. When the random cracks first developed, they were approximately an eighth of an inch thick, but continued to widen. Paul stated that within six months of the time the concrete was poured, the concrete started “sparring [sic] and chipping” off—some spots as large as two inches wide and three or four inches long. In the three years since the concrete was poured, the cracks and chips have continued to deteriorate and there are cracks eight to twelve feet in length all the way down the driveway and patio area. Paul contacted Darin on numerous occasions regarding the problems with the concrete, but Darin did not return to fix any of the problems.³ Darin testified he was unawareof any cracking problems or an electrical conduit problem until after he was “sued.”

In addition to the random cracking throughout the driveway, patio, and sidewalk areas, the garage doors, and metal trim surrounding the garage doors, were splashed with either concrete or stain. As a result, the garage door panels and trim were stained. Darin admitted that the garage area should have been covered.

The Kelleys had two independent inspections done of the concrete after the problems developed to see if the concrete could be fixed—Ron Jones (“Jones”), a professional engineer and owner of JMH Construction Company (“JMH”), and Jeffrey Herman (“Herman”), owner of Mid–Con Construction Company (“Mid–Con”), both inspected the residence in October 2009.

On November 30, 2009, the Kelleys filed a “Petition” alleging Widener failed to perform its work in a workmanlike manner by failing to: (1) place any or adequate contraction and expansion joints in the concrete; (2) cover and protect the garage doors, which resulted in concrete splashing on the doors and trim; (3) properly install an electrical sleeve across the driveway; (4) pour four inches thick of concrete in the driveway; (5) seal part of the stamped concrete; and (6) properly stain the concrete. Because of Widener's failure to perform its work in a workmanlike manner, the Kelleys alleged the concrete developed numerous cracks and chipping exposing unstained sections of concrete and ongoing deterioration of the concrete; and the garage doors and trim were permanently stained. The Kelleys had demanded Widener repair or replace the concrete and garage doors, but Widener refused and continued to refuse to do so. In the petition, the Kelleys “pray[ed] for judgment against [Widener] in an amount which is fair and reasonable[.]”

On October 27, 2011, a bench trial was held. Jones and Herman both testified on behalf of the Kelleys.

Jones testified JMH was a general contracting business experienced in working with concrete and had been in business since 1979. Jones inspected the concrete work performed by Widener to determine if the problems could be fixed, or if the concrete would need to be replaced. Jones testified he observed a lot of random cracking throughout all the concrete work, as well as chipping and spalling ⁴ in some of the cracked areas, and noticed some discoloration on the garage door and trim.

It was Jones' opinion that the random cracking and spalling he observed were due to the lack of contraction joints. He testified contraction joints are important in decorative or stamped concrete to control where the concrete will crack. Jones stated it was possible for concrete to crack elsewhere besides at the contraction joints, but typically those cracks are few. He stated contraction joints should have been spaced eight to ten feet apart throughout the length of the driveway. Jones opined that the random cracking and spalling he observed could have been prevented had there been contraction joints put in place.

Jones testified it was his professional opinion that the concrete work done was not performed in a substantial workmanlike manner. Jones also expected the random cracking and spalling to increase over time. Additionally, Jones also testified that the discoloration that occurred on the garage door and trim area could have been prevented by putting a protective surface on those areas and by failing to do so, Widener did not perform that work in a substantial workmanlike manner.

Jones testified that the problems he observed with the random cracking, chipping and spalling could not be repaired. It was his opinion the only option available was to remove and re-pour the concrete. Jones prepared an itemized bid as to what it would cost to remove and replace the approximately 7,000 square feet of concrete. The cost to remove the concrete was $36,750, and the cost to pour and replace the concrete was $80,500. The bid also called for removing and replacing the garage doors and trim at a cost of $4,650. The total amount of Jones' bid was $121,810.

Herman also testified on behalf of the Kelleys.⁵ Herman was also asked to inspect the concrete work and to give his opinion as to whether the concrete could be repaired or whether it needed to be replaced. Herman testified the first thing he noticed was that there were no expansion joints or saw-cut contraction joints in the concrete. Herman explained that a contraction joint is cut in concrete to relieve the shrinkage, and is a standard practice used to control cracking and is 99 percent effective. It was Herman's opinion that contraction joints should be used in stamped or decorative concrete.

Herman's testimony was similar to that of Jones concerning the cause of the cracks and the necessary remedy.

Herman also prepared an estimate for what he thought the cost would be to repair and replace the existing concrete. The bid included demolition and removal of the existing concrete at a cost of $37,750, and re-pouring the concrete in a similar pattern at a cost of $83,050. Additionally, the cost to replace the garage doors and metal trim was $6,100. The total cost was $133,250.

Darin testified he discussed with the Kelleys the construction techniques that needed to be involved concerning contraction and expansion joints, and that the Kelleys made the decision to go “without the joints.” Darin admitted that the contraction and expansion joints would have helped eliminate cracking in the driveway, but stated “concrete's always going to crack, and you're never going to control it[.]”

Although Darin claimed that the driveway was structurally sound even though it had cracks and would continue to spall, he admitted that the concrete driveway, sidewalk, and patio, with all of the random cracking and spalling, was not “a good looking job.” He admitted that you can help control where the cracks are going to occur with contraction joints, and the random cracking throughout the concrete at the residence was caused by a lack of contraction joints.

Widener called Larry Neff (“Neff”), a real estate broker in the Neosho area since 1969, as a witness. Neff testified he was familiar with the housing market in Neosho because he is “constantly buying, or selling, or—or involved in the real estate business.” He testified he had owned and operated a real estate office for 30 years, built over 300 homes in the Neosho area, six subdivisions, and close to 500 housing units. Neff testified the subdivision where the residence was located contained “high-end” homes in the Neosho area.

Neff was retained by Widener two days prior to trial to inspect the residence, which he did the day before trial.⁶ Neff's inspection of the residence took approximately fifteen minutes and consisted of walking “from the driveway to the garage and then around to the left, towards the swimming...