Kincaid v. Landing Development Corp.

• Decision Date: 16 April 1986
• Docket Number: No. 0718,0718
• Citation: 289 S.C. 89,344 S.E.2d 869
• Court: South Carolina Court of Appeals
• Parties: Juanita B. KINCAID and Beverly K. Davidson, a/k/a Beverly K. McLeod, Respondents, v. The LANDING DEVELOPMENT CORPORATION, Resort Management Group, Inc., and Resort Construction Corporation, Appellants. . Heard

Page 869

344 S.E.2d 869

289 S.C. 89

Juanita B. KINCAID and Beverly K. Davidson, a/k/a Beverly K McLeod, Respondents, v. The LANDING DEVELOPMENT CORPORATION, Resort Management Group, Inc., and Resort Construction Corporation Appellants.

No. 0718.

Court of Appeals of South Carolina.

Heard April 16, 1986.

Decided May 19, 1986.

Howell V. Bellamy, Jr. and Henrietta U. Golding, of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, Myrtle Beach, for appellants.

John R. Clarke and Steven H. John, of Law Offices of John R. Clarke, North Myrtle Beach, for respondents.

SHAW, Judge:

This is an action for negligent construction and breach of warranty. Appellants The Landing Development Corporation (LDC), Resort Management Group, Inc. (RMG), and Resort Construction Corporation (RCC) appeal from a jury verdict awarding respondents Juanita Kincaid and Beverly K. Davidson $19,800.00 actual damages and $13,500.00 punitive damages. We affirm.

In an action at law, tried by a jury, this court's jurisdiction extends only to the correction of errors; a factual finding by the jury will not be disturbed if the record discloses any evidence which reasonably supports the jury's findings. Pittman v. Galloway, 281 S.C. 70, 313 S.E.2d 632 (Ct.App.1984).

On February 13, 1978, Juanita Kincaid and her husband entered into an agreement with LDC to purchase a lot in a subdivision, known as The Landing, owned and developed by LDC. RMG was the sales and marketing agent for this development. LDC then contracted with RCC to construct a house according to plans Kincaid had selected. Kincaid and her husband, together with Beverly Davidson, their daughter, purchased the property by deed for $55,080.00 on July 12, 1978. The house was bought for Davidson and she and her minor son moved in the first week of August, 1978. Subsequently, Kincaid's husband died and Davidson became a one-half owner in the property. Kincaid and Davidson brought suit in September of 1983.

The appellants contend the trial court erred in (1) charging the jury violation of a building code is negligence per se, (2) permitting the jury to view the house prior to testimony by a structural engineer on behalf of the appellants, (3) failing to direct verdicts against Kincaid and Davidson while directing verdicts against the appellants, (4) permitting witnesses offered by Kincaid and Davidson to testify as experts, (5) failing to strike punitive damages, (6) permitting Kincaid and Davidson to amend their prayer for relief, (7) failing to direct a verdict for RMG, and (8) failing to grant a continuance, change of venue, or a mistrial to appellants.

(1)

The record contains numerous references by witnesses for the homeowners to violations of the "Standard Building Code." The trial court charged the jury violations of a standard building code is negligence per se. The appellants contend this was error since the homeowners failed to prove the alleged "Standard Building Code" was ever adopted by any local authority. Witnesses for the homeowners testified the code was recognized by the local industry, but no ordinance adopting the code was offered into evidence. Violation of a statute is negligence per se. Coleman v. Shaw, 281 S.C. 107, 314 S.E.2d 154 (Ct.App.1984). However, local ordinances are not subject to judicial notice. Hill v. City of Hanahan, 281 S.C. 527, 316 S.E.2d 681 (Ct.App.1984).

Thus, absent proof of adoption by a local authority, the trial court technically erred in charging the jury violation of the alleged "Standard Building Code" was negligence per se. However, the trial judge had previously directed a verdict for the homeowners on the question of liability, leaving only the question of damages to the jury. The trial judge carefully instructed the jury violation of the alleged building code was not recklessness, willfulness, or wantonness per se and could only be considered in connection with all of the other facts. Consequently, we hold the erroneous charge was not prejudicial and, thus, does not warrant reversal. Priest v. Scott, 266 S.C. 321, 223 S.E.2d 36 (1976).

(2)

During the trial, the court granted the homeowners' motion for the jury to view the house. The appellants complain about the timing of the view. Specifically, they allege the trial court erred in permitting the view before the testimony of a structural engineer for the appellants. A jury view of a scene in question is a matter within the discretion of the trial judge. S.C.Code Ann. § 14-7-1320 (1976); City Of Columbia v. Jennings, 288 S.C. 79, 339 S.E.2d 534 (Ct.App.1986). The trial judge's decision will not be reversed absent an abuse of discretion. The judge permitted the viewing before the engineer's testimony so the judge could attend a scheduled conference with the sheriff concerning "important law enforcement matters ... to do with ... the enforcement of the criminal code of the state." Under these circumstances, we find no abuse of discretion.

(3)

The trial judge directed a verdict for the homeowners on the issue of liability. On appeal from this order, we must view the evidence and all reasonable inferences in a light most favorable to the appellants. Claytor v. General Motors Corporation, 277 S.C. 259, 286 S.E.2d 129 (1982). Wayne Vereen, a witness for the appellants, testified on direct examination to construction defects in the house. Also, he gave an estimate as to the cost of repairs. John Simko, another witness for the appellants, agreed with Vereen. Based on this testimony, the trial court correctly directed a verdict for the homeowners. We note the record is replete with other evidence of negligent construction.

The appellants assign error to the trial judge for denying them a directed verdict on the issue of damages and for charging the jury on the applicable law of damages.

In considering whether denial of appellants' motion was correct, we view the evidence and all inferences in a light most favorable to the homeowners. Collins Cadillac, Inc. v. Bigelow-Sanford, Inc., 276 S.C. 465, 279 S.E.2d 611 (1981).

The appellants concede the trial judge's charge on the measure of damages is substantially correct. However, they contend there is no evidence in the record to establish the measure of damages under either the negligence or warranty theory. Specifically they argue there is no testimony regarding the difference in the value of the house had it been properly constructed and its value in its defective condition.

The trial judge correctly charged the jury the applicable measure of damages could be shown by cost of repairs. Contrary to the appellants' argument otherwise, a plaintiff is not required to prove the repairs were actually made. We hold a competent estimate of the cost of repairs is sufficient to create a factual question for the jury. Newman v. Brown, 228 S.C. 472, 90 S.E.2d 649 (1955).

The homeowners introduced two written estimates of repair costs to their home. The record also contains testimony regarding the estimates. Witnesses for the appellants also testified as to estimated repair costs. Thus, we find the record contains ample evidence of damages to sustain the trial judge's denial of a directed verdict to the appellants.

(4)

The appellants attack the trial judge's qualification of Gary Wiggins and Steven Richel as expert witnesses for the homeowners. Qualification of witnesses as experts and the admissibility of their testimony is a matter left to the discretion of the trial judge. South Carolina Dept. of Social Services v. Bacot, 280 S.C. 485, 313 S.E.2d 45 (Ct.App.1984).

Gary Wiggins, a former building inspector for the City of Myrtle Beach, testified he was president of Consulting Services, Inc., at the time of trial. The firm advises architects, engineers, and contractors on construction problems. Wiggins was a building inspector for sixteen (16) years. He holds a license from South Carolina concerning residential building and a general contractors license. Wiggins also testified to his educational background and professional activities, including membership on national committees concerning building code administrators.

Steven Richel, a licensed civil engineer, testified to his educational background and his work with Georgetown Steel, his employer. He designs foundation structures and buildings, writes their specifications, and estimates the value of contracts. Thus he is familiar...