Parker v. Thornton, 07-CA-59587

• Decision Date: 11 March 1992
• Docket Number: No. 07-CA-59587,07-CA-59587
• Citation: 596 So.2d 854
• Parties: Daryl PARKER and Wife, Patricia L. Parker v. Dion THORNTON, Sr.
• Court: Mississippi Supreme Court

Page 854

596 So.2d 854

Daryl PARKER and Wife, Patricia L. Parker v. Dion THORNTON, Sr.

No. 07-CA-59587.

Supreme Court of Mississippi.

March 11, 1992.

Michael P. Younger, Brandon, for appellant.

Anselm J. McLaurin, McLaurin & McLaurin, Brandon, for appellee.

Before HAWKINS, P.J., and SULLIVAN and McRAE, JJ.

SULLIVAN, Justice, for the Court:

This case arises from a suit in Rankin County Circuit Court by a husband and wife against a contractor. After experiencing problems with their home, the husband and wife filed their suit alleging negligence and breach of express and implied warranties of merchantability and fitness by the contractor. The husband and wife claimed that the contractor failed to properly prepare the site before pouring the foundation. The contractor argued that problems in the house were a result of Yazoo clay under the foundation. The jury returned a verdict for the contractor. The husband and wife appealed, assigning a number of errors. Of the assignments, only the challenge to the sufficiency of the evidence is taken up, as it is dispositive of the case. On that assignment the verdict is reversed and the case remanded for new trial.

THE FACTS

In August of 1985, Daryl and Patricia Parker purchased a new home from Dion Thornton, Sr. Thornton initially purchased Lots 20 and 25 on Sandway Drive and built homes for himself and his friend, Dave Odom. The house on Lot 20 was custom built for Odom. Once the houses were almost complete, the men decided that they did not want them and decided to buy two more lots elsewhere and build there. The houses on Lots 20 and 25 were put up for sale. Daryl and Patricia Parker signed a contract to purchase the house on Lot 20 from Thornton for $90,000.00. Before buying the Parkers specifically asked about the foundation as they had experienced foundation problems in their previous home on the Coast and had been told by others of the problems with Yazoo clay. Thornton told them that the house had a "beefed up foundation" and that he had personally watched the lot being cleared and prepared for the foundation.

Despite Thornton's assurances, the Parkers began to experience problems some four or five months after moving in. Cracks formed across the driveway, in the fireplace, across the vaulted ceiling, and on a wall outside of the bedroom; the French doors jammed; and the door to the master bedroom would not close. Daryl Parker spoke to Thornton about the problems but repairs were never completed. Parker then had five foundation specialists take a look at his home with each giving him estimates on repairs. Parker then took his problem and his estimates to an attorney, who wrote Thornton a letter, dated July 17, 1986, with the lowest estimate attached.

In response to the letter, Thornton got his own foundation specialist, Gene Boling, to take a look at the house. Boling noted that the garage floor and the north wall had cracked and there had been some slight settling, and estimated that the repair work to fix the problems he saw would cost $900.00. The Parkers were leery of the $900.00 estimate because it was so much lower than all of the other estimates.

The Parkers then had the repair work done by L.V. Thrasher. As Thrasher dug holes under the slab, he discovered pine straw, leaves, and roots. In one hole dug by Thrasher, a stump could be seen protruding up into the foundation. Daryl videotaped what was discovered and said that the foundation was weakened by the debris beneath it.

On June 30, 1987, Daryl and Patricia Parker filed a complaint in Rankin County Circuit Court against Dion Thornton, Sr., alleging that Thornton breached express and implied warranties of fitness and habitability in his failure to cure "structural defects," and that he was negligent in his construction of the home. The Parkers requested $57,900.00 in actual damages and $25,000.00 in punitive damages. The Parkers later amended their complaint to request $200,000.00 in actual damages, because it was discovered that further repairs were needed on the house and these repairs would cause a further diminution in value.

At trial the primary concern was the cause of the foundation problem. Thornton testified that he sub-contracted the preparation of the lot to Jake Meadows. Thornton saw some of the preparation of the lot, and personally supervised the laying of the foundation. In reference to the stump that was found under the house, Thornton, after viewing the videotape, said that Meadows did not do a thorough job and neglected to do the job properly, as he left a stump. Though Thornton could not explain the videotape of roots and what appeared to be black decaying material beneath the slab, he felt that the source of the foundation problems stemmed from a concentration of Yazoo clay under the house. Thornton, however, did not mention anything to the Parkers about a concentration of Yazoo clay under the foundation when he was selling the house.

L.V. Thrasher indicated that he had dealt with Yazoo clay before and that he recognized it when he saw it. Thrasher was of the opinion that there was no massive amount of Yazoo clay under the Parker house. He believed that the problems experienced by the house were the result of the debris, roots, and stumps left under the slab and not Yazoo clay. When asked about creep in regards to Yazoo clay, Thrasher disputed that movement indicated by cracks and openings was the result of the house sitting on Yazoo clay. Thrasher felt that the cracks and openings were the result of sinking and not creeping.

It should be noted that after $6,500.00 worth of repairs were done, cracks began forming in the vaulted ceiling, the moldings around the fireplace were cracking and coming loose, baseboards popped loose, the masonite front pulled apart, boards on the front porch popped loose and dropped down, and the sheetrock under one of the windows separated. A sink was discovered in the floor of the den.

Alva Rutledge was called as an expert witness. Rutledge, a civil engineer and home inspector, was offered as an expert in the field of home inspection. Rutledge testified that he inspected the Parker home on May 5, 1988. In inspecting the home at the request of counsel for Thornton, he saw relatively little damage to the house, and some minor cracking. The cracks and openings were not significant from a structural point of view, but were indications of movement. Rutledge attributed the cracking the house was experiencing was due to the Yazoo clay under the house.

Rutledge did not agree that the debris beneath the foundation caused the movement in the house. The roots found under the house were very solid and showed no signs of decay and had not affected the house. As for the roots that appeared to be sticking out of the concrete, Rutledge thought these were no problem. Rutledge stated that any problem caused by the roots would be insignificant to problems caused by the expansive clay under the house.

After all of the testimony was heard the case was given to the jury. The...