Paul Davis Systems of Savannah, Inc. v. Peth

• Decision Date: 04 November 1991
• Docket Number: No. A91A1442,A91A1442
• Citation: 201 Ga.App. 734,412 S.E.2d 279
• Parties: PAUL DAVIS SYSTEMS OF SAVANNAH, INC. v. PETH.
• Court: Georgia Court of Appeals

Page 279

412 S.E.2d 279

201 Ga.App. 734

PAUL DAVIS SYSTEMS OF SAVANNAH, INC. v. PETH.

No. A91A1442.

Court of Appeals of Georgia.

Nov. 4, 1991.

Remler, Koski & Near, Albert N. Remler, Atlanta, for appellant.

Duffy & Feemster, Dwight T. Feemster, Savannah, Jo Beth Gosdeck, Suwanee, for appellee.

BEASLEY, Judge.

Peth's house was damaged by fire. He contracted with Paul Davis Systems for repair. Alleging that the repair work was not performed satisfactorily according to contract, Peth sued Davis. The only cause of action was breach of contract, and the jury returned a verdict in favor of plaintiff.

The parties' contract was composed of a work authorization and an itemized estimate of the cost to repair the fire damage, plus a change order for designer solarium flooring instead of vinyl. The estimate consists of a computer printout describing the repairs to be made in the rooms of the house and to the roof and several miscellaneous items, including electrical work and plumbing. The repairs are divided into categories such as ceilings, walls, windows, floors, doors, roof. Within each category, the work to be done is itemized and calculated according to units, price per unit, and extension (total price per item). The total estimate of the cost of repairs is $48,922.82, which was increased by the change order of $748.

Plaintiff sought a recovery of $45,000 plus other damages which were eliminated at trial, and defendant filed a counterclaim for the unpaid balance due of $4,670.83. The verdict and judgment were $40,000 on the claim and zero on the counterclaim.

Plaintiff's expert witnesses included a county building inspector (Davis), a consulting engineer (Kern), and a home improvement contractor (Daily). Their opinions, individually or collectively, were that the roof was not structurally sound; that there were many humps or waves in it; that it had not been framed properly; that rafters had not been installed properly; and that the correction of these problems would necessitate the removal and reconstruction of the roof. They also testified as to extensive problems with the sheetrock in the walls and on the ceilings and that substantial portions of the sheetrock would have to be either removed and repaired or entirely replaced. They also testified that wallpaper had not been hung properly and that attic insulation had not been installed properly.

A home videotape, taken by plaintiff's wife after Davis was stopped from proceeding, was played before the jury over objection. Plaintiff's wife described by testimony what was being depicted. She pointed out such things as doors, windows, and carpeting which she testified had been installed improperly or not at all, unrepaired cabinets, and areas of uneven and missing and peeling wallpaper. In addition, she testified about items in defendant's estimate which had been done improperly or not at all.

Daily estimated that the total cost to remedy would be $53,750. His itemized proposal contains 19 items, e.g., tear off and rebuild roof, tear out and redo sheetrock, clean and repaint all walls and ceilings. It does not apportion the amount proposed for each item. An item not included in defendant's contract was removal of the fire-damaged roofing and sheetrock, which had been done before defendant commenced work.

Defendant moved for jnov or new trial, contending that the verdict is contrary to law and to the evidence, without evidence to support it, contrary to principles of justice and equity, and excessive in amount. Defendant also contended that the court erred in allowing the videotape presentation. The court denied the motion in an explanatory order, ruling that there was "ample evidence" to support the verdict. The appeal incorporates the foregoing contentions into a single enumeration of error.

1. Defendant argues that he contracted to provide only certain remodeling and repairs to an older residence which had been partially destroyed by fire, and there was no correlation between the testimony of plaintiff's witnesses as to the items in the house in need of repair and the items which defendant was contractually obligated to repair, since the witnesses had not reviewed the parties' contract and because testimony included items not covered by the contract.

Although plaintiff's witnesses had not reviewed the parties' contract, Daily testified that he compiled his proposal based on his inspection of the residence and plaintiff's statements to him as to the repair work defendant had contracted to do. Defendant's repair estimate and Daily's proposal were admitted in evidence; these documents show that the jury could have found that the items in the proposal represented repair work necessitated by defendant's improper repairs. Dailey and all witnesses were subject to cross-examination to ferret out any items in their testimony which in defendant's view were not covered by the contract, which was in evidence.

As to damages, "[a] jury must be able to calculate the amount of damages from the data furnished and it cannot be placed in a position where an allowance of loss is based on guesswork. [Cit.] A jury must be able to calculate loss with a reasonable certainty. [Cit.] The party claiming damages carries not only the burden of proving the damages, but also furnishing the jury with sufficient data to estimate the damages with reasonable certainty. 'It is not necessary, however, that the party on whom the burden thus rests should submit exact figures.' [Cit.]" Moultrie Farm Center v. Sparkman, 171 Ga.App. 736, 740(6), 320 S.E.2d 863 (1984); also see Pool Markets South v....