Pullum v. Regency Contractors, Inc., BA-493

• Decision Date: 09 August 1985
• Docket Number: No. BA-493,BA-493
• Citation: 10 Fla. L. Weekly 1915,473 So.2d 824
• Parties: 10 Fla. L. Weekly 1915 E.H. PULLUM, Appellant, v. REGENCY CONTRACTORS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 824

473 So.2d 824

10 Fla. L. Weekly 1915

E.H. PULLUM, Appellant, v. REGENCY CONTRACTORS, INC., Appellee.

No. BA-493.

District Court of Appeal of Florida,

First District.

Aug. 9, 1985.

Larry Hill of Moore, Hill & Westmoreland, Pensacola, for appellant.

T. Sol Johnson of Johnson, Green & Locklin, P.A., Milton, for appellee.

JOANOS, Judge.

This is an appeal from an award of damages to appellee Regency Contractors, Inc., on its counterclaim in a breach of a construction contract suit. E.H. Pullum, plaintiff in the trial court, appeals from the denial of his motion for new trial and the entry of judgment notwithstanding the verdict on behalf of Regency, defendant and counter-claimant in the trial court. Pullum contends the trial court erred in denying his motion for new trial, and in granting Regency's motion for judgment notwithstanding the verdict in lieu of the amount of damages awarded by the jury. We reverse.

Pullum entered into a construction contract with Regency in which Regency agreed to construct a house on Pullum's land for a total price of $26,900.00. Pullum made a $2,690.00 down payment at the time of execution of the agreement (10% of the contract price), and the outstanding balance was to be paid through a series of draws due upon completion of various stages of the construction. The first draw, in the amount of $4,035.00, was due upon completion of the foundation.

During construction of the foundation, Pullum expressed concern with the manner in which the work was being performed. According to Pullum, the work was not being performed in a workmanlike manner and was not in accordance with the Santa Rosa County building code. Pullum, in a registered letter to Regency, requested an on-site conference and stated that he would not approve the first draw until the defects were corrected. Mr. McCranie, the president and owner of Regency, took the position that the foundation was laid in accordance with the Southern Building Code, and the defects complained of were a part of phase two of the construction and therefore had no bearing on appellee's entitlement to the first draw.

Pullum filed his complaint alleging breach of contract and seeking damages, costs, and attorney's fees. Regency answered and counterclaimed, alleging that Pullum breached the contract and sought damages, costs, and attorney's fees.

The case was tried before a jury. On the issue of breach, Pullum testified that his registered letter notifying Regency of his dissatisfaction with the construction had been refused. The original letter, envelope, and return receipt form were placed in evidence. Grant McCranie, president of Regency, testified at trial that he did receive a registered letter from Pullum, although, previously, in his deposition, he had denied receipt of the registered letter. With regard to costs incurred in construction, McCranie stated that Regency's total cost for building the house would have been $19,448.97. According to McCranie, Regency's gross profit on the contract would have been $7,451.03, and Regency had incurred costs of $7,725.74--which included the cost of trusses ($993.30) and bricks ($631.19), that had been taken to the work site and left. McCranie acknowledged that Pullum had advised him that Regency could pick up the trusses and bricks, but Regency had not done so.

The trial court instructed the jurors that if they found that Pullum had breached the contract and that Regency had suffered damages as a result of the breach, then the damages to be awarded "shall be equivalent to the sum of the Defendant's lost profit attributable to the contract in question that is proved with reasonable certainty and the restitutionary value for the cost of all labor and materials incurred by the Defendant in its performance of the contract to date." After considering the evidence the jury inquired whether they might stipulate that the brick and trusses left at the construction site could be used by Pullum. The trial court declined to answer the question. The jury returned a verdict in favor of Regency and awarded damages in the amount of $5,000.00.

Pullum filed a motion for new trial, and Regency filed motions for judgment notwithstanding the verdict and for an order awarding attorney's fees, costs, and interest. In the final judgment the trial court denied the motion for new trial and granted Regency's motions, awarding damages in the amount of $12,486.77, costs in the amount of $343.75, and attorney's fees in the amount of $3,144.75, with interest at the rate of 12% dating from entry of the final judgment.

A trial court enjoys a broad discretion in considering whether to grant a motion for new trial, and that discretion will not be disturbed on appeal absent a showing of abuse of that discretion. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Florida First National Bank of Jacksonville v. Dent, 404 So.2d 1123 (Fla. 1st DCA 1981); Ligman v. Tardiff, 466 So.2d 1125 (Fla. 3rd DCA 1985). If the trial court concludes that a verdict is against the manifest weight of the evidence or was influenced by consideration of matters outside the record, a new trial should be granted. Wackenhut Corporation v. Canty, 359 So.2d 430, 435 (Fla.1978). By the same token, if "an appellate court so regards a verdict the judgment entered thereon may be reversed and a new trial granted, on the ground that failure of the trial court to grant a new trial was an abuse of discretion." Diaz v. Certified Marine Industries, Inc., 346 So.2d 1211 (Fla. 3rd DCA 1977). Accord: Kinsey v. Kelly, 312 So.2d 461 (Fla. 1st DCA 1975).

In contrast with the broad discretion to grant or deny a new trial, the trial court has a limited discretion to enter a directed verdict after the jury returns a verdict. A motion for directed verdict should be granted only in those circumstances when the evidence, "taken in a light most favorable to the opposing party, demonstrates a jury could not reasonably differ on the existence of a material fact and the...