Needs v. Hebener
| Decision Date | 01 August 1990 |
| Docket Number | No. 17433,17433 |
| Court | Idaho Court of Appeals |
| Parties | Larry A. NEEDS and Karla Needs, d/b/a Thama Construction & Supply, Plaintiffs-Counter Defendants-Respondents, v. Gary HEBENER and Sue Hebener, husband and wife, Defendants-Counter Claimants-Third Party Plaintiffs-Appellants, and Dennis Needs and Barbara Needs, d/b/a Mountain Gem Log Homes, Third Party Defendants-Respondents. |
Eismann & Kosonen, Coeur d'Alene, for appellants. D. Samuel Eismann argued.
J. Ray Cox, Jr., Coeur d'Alene, for respondents.
This is an appeal from a judgment upon a jury verdict in favor of Larry and Karla Needs for materials and labor furnished in the construction of a log home for Gary and Sue Hebener. The Hebeners raise several issues on appeal. First, they assert that the court erred procedurally and substantively in giving the jury preliminary and written instructions. Second, that the court erred in allowing the Needs to amend their complaint to include claims based upon account stated and quantum meruit. Third, that the court committed error by admitting a demand letter into evidence. Finally, that the court erred by refusing to grant their motions for directed verdict, judgment notwithstanding the verdict, or new trial. For reasons discussed below, we affirm the judgment.
On appeal, the evidence in the record, and all reasonable inferences, are viewed in favor of the jury verdict. Challis Irrigation Co. v. State, 107 Idaho 338, 689 P.2d 230 (Ct.App.1984) (review denied). Viewed in this light, the record discloses the following facts. In April, 1979, the Hebeners entered into a written contract in which Mountain Gem Log Homes agreed to supply logs and certain other materials for construction of a log home. This contract was signed by Gary Hebener and a sales representative for Mountain Gem Log Homes, a manufacturing business owned by Dennis and Barbara Needs. Essentially, this was a "materials" only contract, assuring Hebener of a supply of logs and beams at fixed unit prices. The contract gave Hebener the right to reject unsuitable materials after delivery. According to Hebener, certain express and implied warranties were made concerning these materials.
Hebener wanted to be his own "general contractor" for his home, but he wanted the basic log structure to be erected by Larry Needs, Dennis' brother, who was experienced in such construction. Thus, the parties orally agreed that Larry Needs would assemble the log frame, construct bearing walls, subfloors, stairs, decking, and a subroof so as to "dry-in" the interior. Hebener had plans drawn for the home. These were used in the preparation of estimates for the cost of the materials and labor which Mountain Gem Log Homes and Larry Needs were to provide. The plans included an attached garage but initially Hebener was undecided whether it should be of frame or log construction. Before construction began, Hebener made substantial changes in the planned construction of the home.
In the beginning the Hebeners were to make payments for materials and labor to Mountain Gem. As construction proceeded, problems arose between the Hebeners and Mountain Gem because of the Hebeners' failure to pay when billed. Initial estimates were greatly exceeded by actual costs of both labor and materials. Moreover, Hebener and Mountain Gem's representative were not "getting along." In any event, in December, 1979, the representative notified Hebener that no further materials would be furnished to him because of the delinquent payments. Hebener then asked Larry Needs if he would be willing to continue working on the home. Needs agreed after receiving Hebener's assurance that he would be paid as soon as the home On March 18, the Needs prepared and delivered to the Hebeners a statement showing a balance of $11,095.38 owing for labor and materials furnished in the construction work. In April the Hebeners paid the Needs $1,000 on that account, leaving a balance of $10,095.38. No further payments were made by the Hebeners. The Needs provided the Hebeners with monthly statements of the amount due and had several discussions with the Hebeners concerning payment of the account. Throughout these occasions, the Hebeners never disputed the amount of the bill; they simply stated that they did not yet have the money. On October 18, 1980, Karla Needs wrote a letter to the Hebeners requesting that payment be made. The Hebeners failed to respond to the letter. This letter was followed by a demand letter written by an attorney representing the Needs. Again, the Hebeners made no reply.
[118 Idaho 441] was "dried in" so that the Hebeners' bank would release proceeds of a loan. Larry Needs obtained some of the additional materials needed to finish the work from Mountain Gem Log Homes. He completed the work he had agreed to do in early March, 1980.
Larry and Karla Needs then filed this action to collect the $10,095 they claimed was due. The Hebeners filed an answer and counterclaim, naming Dennis and Barbara Needs, doing business as Mountain Gem Log Homes, as third party defendants. The Hebeners alleged breach of contract, breach of warranties, negligent construction and misrepresentation on the part of the sellers and builder of the home. They sought damages including cost overruns and repairs exceeding $50,000. The jury's verdict awarded Larry and Karla Needs $10,095. The jury's verdict awarded no damages to the Hebeners on the counterclaim and third-party complaint. After the district court denied their motions for judgment notwithstanding the verdict and for a new trial, the Hebeners appealed.
We begin by addressing the Hebeners' claim of error in the giving of preliminary oral instructions and in the submission of certain written instructions. The issue of error in giving the preliminary instructions is raised for the first time on appeal. Generally, issues not raised at the trial court level will not be heard for the first time on appeal. Hoppe v. McDonald, 103 Idaho 33, 644 P.2d 355 (1982). This policy applies to procedural errors and encourages litigants to raise the issue at the trial court level, to give the trial judge an opportunity to correct any errors before harm occurs or before the error becomes incurable. Here, the Hebeners assert that the district court erred by orally giving preliminary instructions to the jury at the start of the trial without first allowing the attorneys an opportunity to read and consider those instructions and to make appropriate objections as required by I.R.C.P. 51(a)(1). The record does not show that the attorneys were given any preview of the preliminary instructions. Accordingly, we will address the issues raised. However, the initial question to decide is whether this procedural failure prejudiced the Hebeners in any way. We believe not. Generally, the instructions informed the jury of the nature of the action, the trial procedure, the jurors' responsibilities and similar matters helpful to the jury. No showing of prejudice has been made.
We now turn to the Hebeners' claims of substantive error in the preliminary instructions. Our standard is one of free review. The Hebeners did not object at any time during the trial to any of these instructions, nor did they ask for any curative instructions. Nevertheless, under the present law, the failure to object at trial is not fatal. A party need not object to an instruction that is actually given by the trial court in order to preserve the issue for appellate review. Suitts v. First Security Bank of Idaho, 110 Idaho 15, 713 P.2d 1374 (1985); Country Ins. Co. v. Agric. Dev., Inc., 107 Idaho 961, 695 P.2d 346 (1984).
Here, the Hebeners contend that the judge erred in not following recommendations contained in the Idaho Jury Instructions (IDJI) as required by I.R.C.P. 51(a)(2). Specifically, the judge told the The Hebeners also contend the judge erred in telling the jurors that if his preliminary instructions should conflict with the final instructions he would give at the close of the trial, the final instructions "shall govern and be controlling." We again hold that no error was committed. As to the final jury instructions, the Hebeners contend the court's instruction No. 27 which qualified an earlier instruction on express warranties, was argumentative and contradictory. We conclude that the two instructions would have been better if integrated into one instruction, but instruction No. 27 was not erroneous. Finally, the Hebeners contend it was error for the court to instruct the jury on plaintiffs' theories of account stated and quantum meruit. We reach those issues in the following discussion.
[118 Idaho 442] jurors that "witnesses are presumed to speak the truth and you should endeavor to reconcile the testimony with that presumption...." He also told them various ways that a witness might be "impeached." Giving these instructions is not recommended. See IDJI 130, 132. Finally, the judge chose to give a "claims of the parties" instruction as part of the final instructions, rather than at the beginning of the trial as recommended. IDJI 102. However, it is not error per se to fail to follow recommendations in IDJI. I.R.C.P. 51(a)(2) does not make IDJI recommendations mandatory. See, e.g., Packard v. Joint School Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct.App.1983). Moreover, there is no contention here that the disfavored instructions were prejudicial. We hold that they were not
The Hebeners contend the court erred by permitting the Needs to amend their complaint to include claims for an account stated and quantum meruit. The amendment of pleadings to conform to the evidence is governed by I.R.C.P. 15(b). The rule states that "[w]hen issues not raised by the pleading are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." (...
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