Piedmont Builders, Inc. v. Fullerton
| Decision Date | 14 January 1981 |
| Docket Number | No. 60684,60684 |
| Citation | 157 Ga.App. 126,276 S.E.2d 277 |
| Parties | PIEDMONT BUILDERS, INC. v. FULLERTON. |
| Court | Georgia Court of Appeals |
Nathaniel David Wages, Winder, for appellant.
W. Michael Strickland, Winder, for appellee.
This appeal urges that the trial court entered an erroneous verdict that was not supported by the evidence and was based on a faulty charge. The appellant, Piedmont Builders, Inc., sued Sam Fullerton for $1,206.50 due on an open account for building materials. Fullerton counterclaimed for breach of construction contract and damages arising from appellant's alleged negligent construction of Fullerton's house. At trial, the judge directed a verdict for Piedmont Builders in the amount sought, $1,206.50; and instructed the jury to deduct this amount from any damages, in excess of that amount, that it found due Fullerton from Piedmont Builders. The jury returned a verdict for Fullerton in the amount of $2,000, and the trial court entered final judgment in the case to defendant Fullerton in that amount. Held :
1. Appellant Piedmont Builders urges that the verdict and judgment are contrary to the evidence because at the most Fullerton showed only that as a result of Piedmont's faculty work the property was diminished in value by $2,800 leaving a possible verdict of only $1,593.50 for Fullerton after deducting the amount of Piedmont's directed verdict ($1,206.50) against him. Further, Piedmont contends Fullerton never sought to mitigate his damages, showed no contract or agreement by which the jury could have measured a breach, presented as his basis for depreciation a replacement cost which far exceeded the contract price, and gave no evidence of the difference between fair market value of the house if constructed properly and fair market value at the time of the alleged breach. For these latter propositions, by which Piedmont alleges the evidence is deficient, Piedmont urges no argument or citation of authority to support its statements that these faults infected the verdict and judgment, except as to Fullerton's failure to mitigate his damages. Accordingly, these allegations urging that the deficiencies in the evidence infected the verdict which are not supported by argument or citation of authority are deemed waived. Wilkie v. State, 153 Ga.App. 609, 266 S.E.2d 289. We find, moreover, that they are without merit. Appellant did not object to the expert's valuation of the damage and did not prove it to be otherwise. No contract was introduced in the case, but appellee proved his allegations of defective and negligent workmanship and the evidence therefore supports the verdict.
As to the appellee's failure to mitigate his damages, the appellant concedes that the measure of damages in cases of this sort is the difference in value of the house as finished and the value of the house as it should have been finished. Windsor Forest v. Rocker, 115 Ga.App. 317, 154 S.E.2d 627; Spainhour v. Nolind, 97 Ga.App. 362, 103 S.E.2d 154; Small v. Lee & Bros., 4 Ga.App. 395, 61 S.E. 831; Kuniansky v. Overmyer Warehouse Co., 5 Cir., 406 F.2d 818, appeal after remand, 5 Cir., 419 F.2d 1280, cert. den., 398 U.S. 905, 90 S.Ct. 1697, 26 L.Ed.2d 64. The plaintiff is thus compensated for the difference in value between what the builder built and what he should have built, and whether the plaintiff mitigated his damages is not only irrelevant to, but is inconsistent with, the calculation of damages in such cases.
The jury's verdict for Fullerton was in effect $406.50 more than the highest monetary estimate which could form the basis for valuing the difference between what the builder built and what he should have built. The jury, however, are not bound by the exact limits of the evidence. State Hwy. Dept. v. Chance, 122 Ga.App. 600, 178 S.E.2d 212; see Dept. of Transp. v. Driggers, 150 Ga.App. 270, 275, 257 S.E.2d 294, nor are they required to accept as correct even uncontradicted opinions of expert witnesses as to value. Hogan v. Olivera, 141 Ga.App. 399, 402, 233 S.E.2d 428; Hoard v. Wiley, 113 Ga.App. 328, 333, 147 S.E.2d 782; Hay v. Carter,...
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