Mathis Implement Co. v. Heath
| Decision Date | 11 June 2003 |
| Docket Number | No. 22571.,22571. |
| Citation | 665 N.W.2d 90,2003 SD 72 |
| Parties | MATHIS IMPLEMENT COMPANY, Plaintiff and Appellee, v. James Eric HEATH and Rebekah L. Heath, Defendants and Appellants. |
| Court | South Dakota Supreme Court |
Wally Eklund of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, South Dakota, Attorneys for plaintiff and appellee.
J.M. Grossenburg, Winner, South Dakota, Attorney for defendants and appellants.
[¶ 1.] James and Rebekah Heath (Heath) contracted with Mathis Implement Company (Mathis) to install concrete for a shed floor and for footings and walls for a basement for Heath's pre-built home. Mathis sought $28,033.02 for the completed work. After nonpayment by Heath, Mathis brought an action to foreclose its mechanic's lien. As a defense, Heath claimed breach of contract. Heath also counterclaimed for breach of contract and breach of warranty. The trial court ruled in favor of Mathis on all issues. We affirm.
[¶ 2.] In May 2001, Heath purchased property on which to construct a home. Heath contacted Mathis for a bid proposal on concrete work. Mathis submitted three separate bid proposals each of which included plans for a 32 × 54 concrete basement and alternatively priced foam forms for the concrete basement walls. Heath agreed to hire Mathis but rejected the forms recommended in the bids substituting plywood forms instead. Also, Heath wanted to use plastic form liners to achieve a brick like appearance on the basement walls.
[¶ 3.] Prior to using the plastic form liners, Mathis' concrete manager Larry Scholz (Scholz) contacted the supplier of the plastic forms. The supplier advised Scholz that it did not recommend the use of the plastic form liners in this type of application. Scholz claims that he told James that the liners were not recommended and that he would not guarantee the appearance of the walls. James did not recall Scholz's warning or refusal to guarantee the work if the liners were used. Ultimately, the plastic form liners were utilized.
[¶ 4.] Throughout the project, Heath was involved in the construction process. After the footings were formed but before the basement walls were poured, Heath altered the plans and design of the basement from a garage to a walk-out basement which required tearing out and re-installing the plumbing. Before the concrete was poured, Heath spent three hours moving forms, cutting screws and pulling stakes. After the footings were poured, Heath insisted that an additional concrete pier be poured in the center of the basement. Heath also added and installed pipe through the forms to allow drainage.
[¶ 5.] When the walls were ready to be poured, Mathis delivered the concrete to the site in its ready-mix trucks. Mathis had hired a pump truck from a Fort Pierre, South Dakota company to pump the concrete into the forms. The discharge tube on the pump truck plugged several times during the process causing the operator of the truck to discontinue the job and return to Fort Pierre. At that point, Mathis brought three tractors with front-end loaders to the site in order to build ramps sufficient to allow its ready-mix trucks to access the forms and finish pouring the walls.
[¶ 6.] Heath claimed that the repeated clogging of the tube on the pump truck demonstrated that the concrete mix was defective and as a result the defective mix caused poor consolidation and weakness of the concrete walls. Consolidation, as explained by Heath's expert Richard Haan (Haan), is "the uniform mixing of and the releasing of the entrapped air within the concrete." When the forms were removed from the basement walls some defects were apparent. On the inside and outside of the walls there were areas with a "honeycomb" appearance. A gap between the ground and the windowsill existed underneath one window on the walkout side. Mathis offered to repair the defects; however, Heath instructed Mathis to leave and not to return.
[¶ 7.] Subsequently, Heath hired Haan, an engineer, for advice regarding the quality of Mathis' work. Based on a visual inspection of the basement walls, Haan concluded that the concrete had a consolidation problem with large voids of entrapped air in the surface and in the interface of the footings and foundation walls causing weakness in the walls. Haan advised Heath not to build on the foundation. As a result, Heath demolished the footings and the basement walls and had them replaced by another contractor. Mathis disputed that there was a problem with the strength of the basement walls and presented expert testimony at trial that the strength of the concrete exceeded the requirements of the Building Code and that it would have been economically feasible to fix the problems instead of demolishing and reconstructing the walls.
[¶ 8.] After a two-day trial to the court, the trial judge found in favor of Mathis and awarded the full contract price of $28,033.02. Heath raises the following issues on appeal:
STANDARD OF REVIEW
[¶ 9.] We review a trial court's findings of fact under a clearly erroneous standard.
Clear error is shown only when, after a review of all the evidence, we are left with a definite and firm conviction that a mistake has been made. The trial court's findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them.
A.P. & Sons Const. v. Johnson, 2003 SD 13, ¶ 9, 657 N.W.2d 292, 294 (internal citations omitted). "[T]he question is not whether this court would have made the same findings that the trial court did, but whether on the entire evidence this court is left with a definite and firm conviction that a mistake has been committed." Fall River County v. South Dakota Dept. of Revenue, 1999 SD 139, ¶ 15, 601 N.W.2d 816, 821.
DECISION
[¶ 10.] Heath's first two issues will be addressed together. Both issues deal with the trial court findings as they relate to Mathis' substantial performance of the contract and the court's award of the full contract price to Mathis. Mathis' cause of action to enforce its mechanic's lien is based on the doctrine of substantial performance. In response to Mathis' claim, Heath asserted breach of contract as a defense and, in addition, counterclaimed for breach of contract and breach of implied warranty of fitness for a particular purpose and sought...
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