Oven Development Corp. v. Molisky, s. R--441

• Decision Date: 22 May 1973
• Docket Number: Nos. R--441,R--443,s. R--441
• Citation: 278 So.2d 299
• Parties: OVEN DEVELOPMENT CORPORATION, a Florida corporation, Appellant, v. Olga MOLISKY et al., Appellees. to
• Court: Florida District Court of Appeals

Page 299

278 So.2d 299

OVEN DEVELOPMENT CORPORATION, a Florida corporation, Appellant, v. Olga MOLISKY et al., Appellees.

Nos. R--441 to R--443.

District Court of Appeal of Florida, First District.

May 22, 1973.

Rehearing Denied June 8, 1973.

W. J. Oven, Jr., Tallahassee, for appellant.

Alfred O. Shuler, of Shuler & Shuler, Apalachicola, William R. Phillips, and E. Martin McGehee, of Ausley, Ausley, McMullen, McGehee & Carothers, Tallahassee, for appellees.

WIGGINTON, Judge.

Plaintiff in each of the above-entitled consolidated cases has appealed a final judgment based upon a jury verdict finding in favor of the defendants. It is appellant's position that the verdicts are not supported by competent and substantial evidence and that, therefore, the trial court erred in denying its motion for judgment after verdict or for a new trial.

There were originally six cases pending in the Circuit Court of Franklin County. These were consolidated into three cases and all were tried together. They have been consolidated into a single case in this court for the purpose of appeal.

Appellant, Oven Development Corporation, was plaintiff in three actions instituted by it against appellees, Olga Molisky, Louis C. Clem and wife, Eloise H. Clem, Dareld R. Morris and wife, Florence K. Morris; these actions sought the foreclosure of a mechanic's lien claimed by appellant against their respective residence properties.

Appellees Molisky, Clem, and Morris were likewise plaintiffs in three separate actions brought by them against appellant, Oven Development Corporation, seeking to cancel of record the latter's claims of lien and praying for damages resulting from an alleged breach of the construction contracts entered into by them with Oven, which contracts formed the basis of the latter's claim against their dwellings. The trial court consolidated the two cases involving Oven and Molisky, the two cases involving Oven and the Clems, and the two cases involving Oven and the Morrises. The three cases resulting from such consolidations were tried together, and separate verdicts and judgments rendered in each. It is from these judgments that this appeal is taken.

The complaints filed by Oven were in substantially the same form except for the amounts claimed to be due it from the defendants, and the description of tne real estate against which the liens were filed. Each such complaint alleged the execution of a written contract for the construction of a dwelling in Franklin County, a performance of that contract by Oven, the failure of the respective owner-defendants to pay the balance due thereon, and the filing, recording, and serving of the claims of lien. The complaints prayed for a judgment representing the balance of the contract price due Oven and for foreclosure of the lien claimed as security therefor. In each of their suits against Oven, appellees Molisky, Clem and Morris alleged the written contract entered into by them for the construction of a dwelling on real estate which they owned in Franklin County and payment of all sums due by them to Oven under the contracts except the final payment in the amount of $5,230.80, $7,034.98, and $12,989.93 respectively. Their complaints alleged a breach of the contract on the part of Oven in that it erected the dwellings in such an unskillful and negligent manner that numerous defects and inadequacies resulted therefrom, specified the alleged defects and inadequacies, and alleged refusal on the part of Oven to correct them. The complaints sought cancellation of the claim of mechanic's liens filed by Oven and money damages resulting from the breach of their contracts.

The three sets of cases were then consolidated by orders which provided that the complaints filed by Oven should be deemed to be its claims against the owners, the complaints filed by the owners should be considered counterclaims, and the answers filed by Oven should be considered answers to the counterclaims.

At a pretrial conference it was stipulated that the written contracts were correctly alleged in the pleadings; that the contractor's claims of lien had been filed and served as alleged; that all of the extras claimed by it had been authorized in each case except for folding doors on the bathtub and one load of limerock; that a dispute existed as to the authorization of these two items; and that the respective balances claimed by Oven were in the amount of $5,230.80 in the case of Molisky, $7,034.98 in the case of Clem, and $12,989.93 in the case of Morris. The stipulation further provided that a question existed as to whether or not the Molisky and Clem houses were located on the building lots as provided in the original plot plans. At the conclusion of the trial the jury rendered verdicts in all three cases which were substantially identical in all material respects, the Molisky verdict reading, 'We, the jury, find for the defendant OLGA MOLISKY. So say we all.'

Post-trial motions for judgment in accordance with its motion for directed verdict or, alternatively, for a new trial were filed by Oven in each case and severally denied by the court. Final judgment in each case was accordingly rendered, adjudging that Over take nothing, that its complaint be dismissed, and that its claims of lien be cancelled and discharged.

The undisputed facts as gleaned from the record establish that appellees planned to move their residences from West Virginia to Carrabelle in Franklin County, Florida. Contact was made by appellee-Morris with Oven regarding construction by the latter of new prefabricated homes of the 'Kingsbury' design for the three parties. Plans and specifications for each of the proposed dwelling houses to be built for appellees were submitted and approved. Written confracts for the construction of the dwellings were executed by the parties, and oven commenced construction sometime in May, 1971. Before any of the houses were completed in every detail, appellees arrived in Carrabelle to take up their new residence there. Over the objection of Oven, Morris and Clem insisted upon moving into the dwellings while they were still under construction. Appellee-Molisky moved into her house shortly thereafter with Oven's consent. After the owners had occupied their dwellings, Oven asked each of them for a 'punch list' specifying all deficient items which they considered needed to be either completed or corrected to make the dwellings conform with the construction contract. Punch lists were furnished by the owners, and Oven set about to complete and correct all items then listed as either deficient or incomplete.

The evidence indicates that all of the items appearing on Morris' punch list were either corrected or complied with by Oven except the furnishing of a double oven and a self-cleaning oven, neither of which was called for by the plans, and a noise factor in the air conditioning system which was never remedied for the reason that Morris told the subcontractor who called to work on the unit not to do anything further because he planned to file suit against Oven anyway.

The evidence indicates that all items appearing on the Clems' punch list were completed by the contractor except the driveway was constructed of limerock instead of oyster shell because the latter material was not available in the area at the time; a fixed muntin instead of a removable one was installed in the window located in the radio room where no window was called for by the contract; a pest control treatment which was not called for by the contract was not supplied; and a question concerning the alignment of the kitchen cabinet and window was corrected with the owner's consent by the construction of a valance over the window.

All of the items included on the Molisky punch list were completed by the contractor.

At a later date, in September, 1971, Oven sent its crews to the three dwellings with instructions to attend to such last minute details as might require attention and to ask the owners if there were anything else which they required to be done on the dwellings, to which inquiry the owners all replied in the negative. Shortly thereafter Oven sent to each of the owners its invoice requesting final payment due under each of the contracts, to which communications it received no reply. Oven thereupon filed a claim of lien against each of the properties owned by appellees on which the dwellings had been constructed. It was following this action that appellees instituted their actions to cancel the liens filed against their properties by Oven and for damages resulting from the alleged breach of the contracts by it, which suits were followed by actions instituted by Oven to foreclose its mechanic's liens and to recover the balances which it claimed to be due under the contracts.

At the trial Oven offered proof establishing the above-stated facts which were not disputed by appellees. Appellees, however,...