McCutcheon v. Cape Mobile Home Mart, Inc.

• Decision Date: 09 October 1990
• Docket Number: No. 57449,57449
• Citation: 796 S.W.2d 901
• Parties: Perry McCUTCHEON and Laura McCutcheon, Plaintiffs-Respondents, v. CAPE MOBILE HOME MART, INC. Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 901

796 S.W.2d 901

Perry McCUTCHEON and Laura McCutcheon, Plaintiffs-Respondents, v. CAPE MOBILE HOME MART, INC. Defendant-Appellant.

No. 57449.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Oct. 9, 1990.

Michael A. Price, Richey, Price, Rice, Spaeth & Heisserer, Cape Girardeau, for defendant-appellant.

Kenneth W. Shrum, Marble Hill, for plaintiffs-respondents.

CRANE, Judge.

Defendant, Cape Mobile Home Mart, Inc. [Cape], appeals from a judgment in the sum of $9,000 in favor of plaintiffs, Perry and Laura McCutcheon, on a jury verdict finding defendant Cape had breached an express warranty. We affirm.

On September 14, 1984, Mr. and Mrs. McCutcheon purchased a new mobile home from Cape Mobile Home Mart, Inc. for $15,104.38. Prior to purchase, Mrs. McCutcheon had seen televised commercials and written advertisements for good quality mobile homes at a reasonable price. They went to Cape and told the salesman that they wanted a mobile home for use as a family home. The salesman eventually showed them the mobile home that they bought. He represented to them that the home was a well-built home, the trim was sturdy, the panelling was of a better grade, and the carpet was upgraded with half inch padding. They were given a written warranty from the manufacturer. Mrs. McCutcheon asked the salesman about some terms in the written warranty. He told them it was just a formality, that they had nothing to worry about because all Cape's new mobile homes had a one year warranty and anything that came loose on the interior or exterior within the year would be replaced.

After taking delivery of their new mobile home, Mr. and Mrs. McCutcheon discovered serious structural defects along with numerous minor problems resulting from defects in material and workmanship. Because sufficiency of the evidence is not at issue, we will not describe these defects in detail. Mrs. McCutcheon periodically informed Cape of the problems beginning in October, 1984. In June, 1985 Cape made some repairs, but the problems continued. In 1989, after suit was filed, Cape performed an additional $1,453.24 in repairs. However, these repairs did not correct the basic defects. The McCutcheons offered the testimony of three expert witnesses who were all experienced in mobile home repairs and one of whom had also been a mobile home dealer. These experts testified that the defects in the mobile home were caused by poor quality materials and workmanship.

One of these expert witnesses, who had twelve years experience in renovating and rebuilding mobile homes, testified that to rebuild the mobile home to standard quality for mobile homes would cost $10,000. The second expert witness, who had 25 years experience in mobile home sales and repairs, testified that because of the inferior quality of workmanship and materials, the fair market value of the home in September, 1984 was $6,000 to $7,000. The third expert witness, who had rebuilt or remodelled over 100 mobile homes, testified it would cost $9,000 to $11,000 to repair or rebuild the mobile home so it would be fit to be used as a personal residence. Mrs. McCutcheon testified that in her opinion the fair market value of the mobile home when they bought it, considering the inferior materials and workmanship, was $4,000 to $5,000. Mr. McCutcheon testified that in his opinion the home was worth $5,000 when they bought it.

Cape offered the testimony of two repairmen it had hired to work on the McCutcheon's mobile home. They testified to the repairs they had made. Cape's former district manager testified that in October, 1988 he estimated the cost of repairs to the mobile home to be $2,000 and its fair market value to be $11,000.

The case was submitted to the jury on breach of express warranty. The jury returned a verdict in the amount of $9,000.

For Cape's first point, it states The Trial Court erred in giving instruction No. 10 on damages, as submitted by Plaintiffs, in that said instructions, not in MAI, was contrary to the law under the evidence.

First we note that this point, like Cape's following two points, does not comply with Rule 84.04(d). ¹ Rule 84.04(d) states, with respect to "points relied on" in appellate briefs:

(d) Points Relied On. The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder....

In Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978), our supreme court gave the following explanation of the "wherein and why" requirements in points relied on:

[C]ompliance with these requirements is a matter of common sense if counsel bear in mind the informational purpose of the brief. After stating the ruling the trial court actually made, it stands to reason that the point should then specify why the ruling was erroneous. This requirement essentially contemplates a statement which ordinarily will closely approximate what appellant believes should have been the trial court's conclusion of law on the point being addressed. After stating why the ruling was erroneous, the court then must be informed wherein the testimony or evidence gives rise to the ruling for which appellant contends.

Point I fails to comply with Rule 84.04(d) because it does not state "wherein" and "why" the instruction "was contrary to the law under the evidence." Heins v. Murphy, 610 S.W.2d 15, 18 (Mo.App.1980).

There was no objection to this instruction at trial. When Cape's attorney was asked if he had any objections to instruction 10, he responded, "No, your honor." Since there was no objection, a specific objection was required in the motion for new trial. Rule 70.03 states: "Specific objections to instructions shall be required in motions for new trial unless made at trial." Rule 78.07 states: "Any specific objections to instructions which were not made at the trial before submission to the jury, must be set forth in the motion for new trial to preserve error for review."

The claim of error regarding the giving of Instruction 10 raised in Cape's Motion for New Trial is as follows:

14. Because the Court erred in giving Instruction No. 10 (damage instruction) as a modified 4.02, not in MAI Instructions, as submitted by Plaintiffs, using a breach of contract case, Hensic vs. Afshari Enterprises, Inc., 599 S.W.2d 522 (Mo.App.1980) having to do with damages to real property, breach of contract, cost of repair and/or diminution in value, as opposed to a damage instruction for a breach of warranty case as submitted by Plaintiffs under Instruction No. 7; that the Court's giving of Instruction No. 10 (a modified 4.02 MAI) was against the law in the State of Missouri and coupled with the incompetent and unqualified witnesses and opinions, both lay and expert, introduced by Plaintiff and admitted by the Court, over the objection of Defendant, produced a verdict against the greater weight of the credible evidence and a miscarriage of justice.

Thus, the only allegation of error preserved for review in the motion for new trial is that the court erred in giving a damage instruction based on breach of contract rather than breach of warranty. By failing to include this specific allegation of error in Point I, Cape abandoned it. Issues not presented in the points to be argued in an appellate brief are abandoned and will not be considered. Jones v. Eagan, 715 S.W.2d 596 (Mo.App.1986).

In spite of Cape's failure to preserve any issue of error with respect to Instruction 10, we will exercise our discretion to review the submission of Instruction 10 for plain error under Rule 84.13(c). When an instruction is not found in MAI (as is the case here), the test of that jury instruction is whether it "follows the substantive law and can be readily understood." Massey-Ferguson Credit Corp. v. Black, 764 S.W.2d 137, 144 (Mo.App.1989). Instruction 10 reads as follows:

If you find the issues in favor of the plaintiffs, then you must award the plaintiffs such sum as you may find from the evidence to be the difference between the fair market value of the Atlantic mobile home as when sold to plaintiffs and its fair market value had it been constructed so that it was fit to be used as plaintiff's personal residence and home.

This instruction follows the law and can be readily understood. The case was submitted to the jury on the theory of breach of the express warranty under Section 400.2-313 RSMo 1986 that the "mobile home was a good quality mobile home fit for use as plaintiffs' personal residence." Cape claims its obligation was limited to repair and replacement of defective parts. Even if its warranty was so limited, where the warrantor fails to correct the defect within a reasonable period, the limited warranty of replacement or repair fails its essential purpose and is avoided under Section 400.2-719(2). When this occurs all contractual remedies are available to the buyer. Givan v. Mack Truck, Inc., 569 S.W.2d 243, 247 (Mo.App.1978). Of these, the most commonly applied formula for damages is "the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted." Section 400.2-714(2) RSMo 1986. This measure of damages is identical to that submitted by Instruction 10.

Although nowhere preserved for review, Cape claims that the measure of damages should have been cost of repair rather than diminution in value, citing language in a footnote in Smart v. Tidwell Industries, Inc., 668 S.W.2d 605, 609 n. 2 (Mo.App.1984) which states that "when the evidence shows the cost of repair or restoring the property or its represented condition to be significantly less than the diminution of value, the former is the proper measure of damages."

As that footnote also points out, MAI 4.17, for use in warranty cases, does not mention this modification which comes from MAI 4.02, for use in...