Mathis Implement Co. v. Heath, No. 22571.

CourtSouth Dakota Supreme Court
Writing for the CourtMEIERHENRY, Justice.
Citation665 N.W.2d 90,2003 SD 72
PartiesMATHIS IMPLEMENT COMPANY, Plaintiff and Appellee, v. James Eric HEATH and Rebekah L. Heath, Defendants and Appellants.
Docket NumberNo. 22571.
Decision Date11 June 2003

665 N.W.2d 90
2003 SD 72

MATHIS IMPLEMENT COMPANY, Plaintiff and Appellee,
v.
James Eric HEATH and Rebekah L. Heath, Defendants and Appellants

No. 22571.

Supreme Court of South Dakota.

Considered on Briefs on March 24, 2003.

Decided June 11, 2003.


665 N.W.2d 91
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.

MEIERHENRY, Justice.

[¶ 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.

FACTS

[¶ 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

665 N.W.2d 92
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...

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  • Eagle Ridge Estates Homeowners Ass'n, Inc. v. Anderson, Nos. 26363
    • United States
    • Supreme Court of South Dakota
    • February 27, 2013
    ...U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). See, e.g., Mathis Implement Co. v. Heath, 2003 S.D. 72, ¶ 9, 665 N.W.2d 90, 92. “ ‘[T]he credibility of the witnesses, the import to be accorded their testimony, and the weight of the evidence must be determined by ......
  • VAN DE WALLE & ASSOC. v. Buseman, No. 22535.
    • United States
    • Supreme Court of South Dakota
    • June 11, 2003
    ...could not believe that Van De Walle agreed to be paid only in the event that HUD guaranteed the financing. Nor could reasonable minds 665 N.W.2d 90 believe that Buseman received no benefit from the services Van De Walle provided. Because there are no genuine issues of material fact, the tri......
  • Davis v. Citibank, N.A., 12 Civ. 1678
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 16, 2013
    ...493, 498 (S.D. 2005). When aPage 19party fails to fully perform a contract, they are in breach. See, e.g., Mathis Implement Co. v. Heath, 665 N.W.2d 90, 92 (S.D. 2003). Here, there is no dispute that Plaintiff opened the account, entered into the Card Agreement governing the Account, and th......
  • Bank of America v. Driggs, #22630.
    • United States
    • Supreme Court of South Dakota
    • September 10, 2003
    ...are presumed correct and we defer to those findings unless the evidence clearly preponderates against them. Mathis Implement Co. v. Heath, 2003 SD 72, ¶ 9, 665 NW2d 90, ANALYSIS AND DISCUSSION A. Compliance with the Redemption Act [¶14.] Under the Redemption Act, Dacotah Bank, as the holder......
  • Request a trial to view additional results
5 cases
  • Eagle Ridge Estates Homeowners Ass'n, Inc. v. Anderson, Nos. 26363
    • United States
    • Supreme Court of South Dakota
    • February 27, 2013
    ...U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). See, e.g., Mathis Implement Co. v. Heath, 2003 S.D. 72, ¶ 9, 665 N.W.2d 90, 92. “ ‘[T]he credibility of the witnesses, the import to be accorded their testimony, and the weight of the evidence must be determined by ......
  • VAN DE WALLE & ASSOC. v. Buseman, No. 22535.
    • United States
    • Supreme Court of South Dakota
    • June 11, 2003
    ...could not believe that Van De Walle agreed to be paid only in the event that HUD guaranteed the financing. Nor could reasonable minds 665 N.W.2d 90 believe that Buseman received no benefit from the services Van De Walle provided. Because there are no genuine issues of material fact, the tri......
  • Davis v. Citibank, N.A., 12 Civ. 1678
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 16, 2013
    ...493, 498 (S.D. 2005). When aPage 19party fails to fully perform a contract, they are in breach. See, e.g., Mathis Implement Co. v. Heath, 665 N.W.2d 90, 92 (S.D. 2003). Here, there is no dispute that Plaintiff opened the account, entered into the Card Agreement governing the Account, and th......
  • Bank of America v. Driggs, #22630.
    • United States
    • Supreme Court of South Dakota
    • September 10, 2003
    ...are presumed correct and we defer to those findings unless the evidence clearly preponderates against them. Mathis Implement Co. v. Heath, 2003 SD 72, ¶ 9, 665 NW2d 90, ANALYSIS AND DISCUSSION A. Compliance with the Redemption Act [¶14.] Under the Redemption Act, Dacotah Bank, as the holder......
  • Request a trial to view additional results

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