Lacey v. Edgewood Home Builders, Inc., 79-445-A

Decision Date08 June 1982
Docket NumberNo. 79-445-A,79-445-A
Citation446 A.2d 1017
PartiesRonald LACEY et al. v. EDGEWOOD HOME BUILDERS, INC. ppeal.
CourtRhode Island Supreme Court
OPINION

WEISBERGER, Justice.

This case comes before us on appeal from judgments of the Superior Court in favor of the plaintiffs, who had brought action to recover from the defendant for violation of implied warranties of habitability. In response to the claims of plaintiffs Richard and RoseMarie DeJoseph (the DeJosephs) and plaintiffs Ronald and Beverly Lacey (the Laceys), jurors rendered a verdict in favor of each set of plaintiffs in the amount of $22,000. In each case, after hearing on the motion for new trial, the Superior Court justice required the plaintiffs to file a remittitur in the amount of $2,660. Both sets of plaintiffs filed such a remittitur, and consequently the motion for new trial was denied. The defendant appeals from the denial of its motion for a new trial and asserts specific objections in respect to evidentiary rulings by the trial justice. The facts underlying the dispute are as follows.

The DeJosephs agreed to purchase their house from defendant in February 1970 for the sum of $21,500. Prior to their occupying the house, they complained to defendant about water entering the basement. By inserting a clause into the contract of sale, the president of defendant corporation agreed to repair cracks in the foundation and add fill to the backyard. This work was performed, but after the DeJosephs moved into the house, more water appeared in the basement. Ultimately the DeJosephs claimed that their garage had shifted, and that resetting of the garage doors was required. Further flooding occurred in the basement, the settling of the house caused doors to bend in their frames, and the bathroom tile floor crumbled. The driveway to the DeJosephs' garage collapsed and sank. The backyard further settled.

The Laceys agreed to purchase their house (which had not yet been constructed) from defendant in 1968 for the sum of $17,000. Before the house was placed on the foundation, the Laceys complained about cracks in that foundation. On February 5, 1969, the president of defendant wrote a guarantee on the back of an envelope stating that no water would leak into the basement and that defendant would repair cracks in the foundation. Although some repairs were made and a sump pump was installed, the Laceys continued to experience flooding and the land behind the house sank visibly. As a consequence, a bow window needed to be replaced, the driveway settled, doors bent or warped, windows stuck, and the garage door became crooked. The defendant maintained that other than the original complaints to which defendant's president had responded, no further complaints were made.

The defendant raises several issues in support of its appeal. The first issue challenges the propriety of the trial justice's allowing an architect-engineer named Yoder to testify concerning the work necessary to repair the dwelling house of each set of plaintiffs and to testify further concerning the cost of such repairs.

Mr. Yoder testified that he is a structural engineer, a registered architect, a professor at the Rhode Island School of Design, and a registered professional engineer. He further testified that he had received a bachelor's degree in architecture from the Rhode Island School of Design and a master's degree in architectural engineering from the University of Illinois. He had practiced his profession for sixteen years and had participated in the design of a number of very substantial structures. The defendant argues that he should not have been permitted to testify in this case because he was not a "builder" of tract dwelling houses. The defendant concedes that the determination of the competency of an expert to testify is within the discretion of the trial justice and that this discretion will not be disturbed in the absence of clear error or abuse. Leahey v. State, R.I., 397 A.2d 509, 510 (1979); Schenck v. Roger Williams General Hospital, 119 R.I. 510, 520, 382 A.2d 514, 519 (1977); Anderson v. Friendship Body and Radiator Works, Inc., 112 R.I. 445, 448, 311 A.2d 288, 291 (1973). In the case at bar, the qualifications of the witness both academic and professional were indeed impressive. To suggest that he was incompetent to testify concerning the repairability of a dwelling house is no more persuasive to us than it was to the trial justice. Certainly the sciences of architecture and engineering would give the witness knowledge beyond the common ken in respect to dwelling houses as well as to a broad variety of other structures. The contention that the trial justice abused his discretion in allowing such testimony borders upon the frivolous under the circumstances of this case.

The defendant further argues that the expert's testimony concerning the cost of the repairs should have been stricken in light of the failure to furnish a factual basis for his estimate. An examination of the record indicates that this contention is also without merit since Mr. Yoder did supply a reasonably detailed breakdown of the cost of repair. He set forth the cost of labor, materials, and overhead, including profit in respect to the repairs of both homes. His estimates related to repairing inadequate foundations by the driving of piles and also by the installation of a floating slab. We are of the opinion that the foundation laid by the witness for his cost estimate was adequate to meet the requirements to which allusion was made in Alterio v. Biltmore Construction Corp., 119 R.I. 307, 377 A.2d 237 (1977). The refusal to strike this testimony was not error.

The defendant also alleges error in the admission by the trial justice of evidence concerning remedial measures taken by defendant on neighboring property owned by a family named Bianco. The Bianco home and lot were located between the properties owned by the DeJosephs and the Laceys. One of the issues raised by defendant at trial was the contention that plaintiffs did not give it adequate notice of the conditions of which complaint was made in the Superior Court action. The defendant's remedial repairs in the immediate vicinity of plaintiffs' homes would be pertinent to the issue of actual or constructive notice of certain of these conditions.

Another issue at trial was the adequacy of the terrain selected by defendant for construction of these houses. Mr. Alfred Meloccaro, defendant's president, had testified that this land had originally been low-lying land that had been filled with gravel prior to the construction of the dwelling houses. It should also be noted that Mr. Yoder had testified that the site was of such a nature that special arrangements for infrastructure, such as the driving of piles or the installation of a floating slab, were necessary in...

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11 cases
  • State v. Pulphus
    • United States
    • Rhode Island Supreme Court
    • August 30, 1983
    ...that it is relevant, that is, it is "evidence that tends to prove or disprove a point provable in the case." Lacey v. Edgewood Home Builders, Inc., R.I., 446 A.2d 1017, 1019 (1982); accord State v. Kieon, 93 R.I. 290, 295, 175 A.2d 284, 287 (1961). Until today, the courts of this state have......
  • 80 Hawai'i 54, Cieri v. Leticia Query Realty, Inc.
    • United States
    • Hawaii Supreme Court
    • September 28, 1995
    ...its conclusion that real estate or residences do not qualify as "goods," the Kona Hawaiian court relied on Lacey v. Edgewood Home Builders, Inc., 446 A.2d 1017 (R.I.1982), and Wendling v. Cundall, 568 P.2d 888 (Wyo.1977), both of which dealt with the question whether a real estate transacti......
  • Abbey Medical/Abbey Rents, Inc. v. Mignacca, 83-303-A
    • United States
    • Rhode Island Supreme Court
    • January 4, 1984
    ...We have defined relevant evidence as evidence that tends to prove or disprove a point provable in the case. Lacey v. Edgewood Home Builders, Inc., R.I., 446 A.2d 1017, 1019 (1982); State v. Barnville, R.I., 445 A.2d 298, 301-02 (1982); see Capezza v. Hertz Equipment Rental Corp., 118 R.I. 1......
  • Richardson v. Fuchs
    • United States
    • Rhode Island Supreme Court
    • April 6, 1987
    ...we shall not disturb in the absence of clear error or abuse. Greco v. Mancini, 476 A.2d 522, 525 (R.I. 1984); Lacey v. Edgewood Home Builders, Inc., 446 A.2d 1017, 1018 (R.I. 1982). In making such a determination, the trial justice must take into account the natural tendency of the jury to ......
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