Rose Mill Homes, Inc. v. Michel, 60039

Decision Date23 September 1980
Docket NumberNo. 60039,60039
Citation155 Ga.App. 808,273 S.E.2d 211
CourtGeorgia Court of Appeals
PartiesROSE MILL HOMES, INC. v. MICHEL et al.

Robert A. Blackwood, III, Peachtree City, for appellant.

Thomas J. McHugh, Jr., Fayetteville, for appellees.

SOGNIER, Judge.

Appellant Rose Mill Homes, Inc. is in the business of building and selling homes. Appellee Michel purchased one of appellant's homes. Prior to entering into the sales contract, Michel inspected the house and saw nothing to indicate any problem with water in the basement. After the parties had signed the sales contract but prior to closing, Michel discovered that the basement flooded. Rose Mill informed Michel that vandals had entered the house and pulled the electrical plug to the sump pump. Rose Mill assured Michel that there was no problem with water in the basement and gave the buyer a 24 month guarantee that the basement would remain dry. Michel and his family closed and moved into the house based on the seller's guaranty. Within the guaranty period, the basement flooded and caused extensive damage to Michel's personal property. Michel complained to Rose Mill, who made several attempts to remedy the problem. Michel continued to have problems with water in the basement and ultimately brought suit against Rose Mill alleging negligence, breach of contract and fraud. The jury returned a verdict in favor of Michel for $7,000 actual damages, $15,000 punitive damages and $800 attorney fees. Rose Mill appeals.

1. Appellant contends that the trial court erred in allowing evidence of the cost of repair as the measure of damages, in allowing Michel to testify regarding the cost of repair, in failing to grant appellant's motion for directed verdict regarding damages, and in its charge to the jury on the measure of damages for breach of a building contract.

The proper measure of damages in a case such as this is the difference in the value of the house as delivered and the value it would have had if completed in accordance with the contract. Allied Enterprises, Inc. v. Brooks, 93 Ga.App. 832, 833, 93 S.E.2d 392 (1956); Spielberg v. McEntire, 105 Ga.App. 545, 548, 125 S.E.2d 134 (1962). Where the defects in the house as constructed may be remedied at a reasonable cost, it is proper to deduct from the contract price the sum which would be required to complete the house according to the contract. Wilson v. Black, 114 Ga.App. 735, 738, 152 S.E.2d 755 (1966); A. W. Easter Constr. Co. v. White, 137 Ga.App. 465, 224 S.E.2d 112 (1976). Proof of the cost of repair because of the defective construction is illustrative of the difference in value claimed as damages, and is more likely to represent the true damage suffered from the failure of the seller to complete his contract than would the opinion of an expert in real estate as to the difference in values, though such proof would also have been permissible. Mabry v. Henley, 123 Ga.App. 561, 567, 181 S.E.2d 884 (1971); A. W. Easter Constr. Co. v. White, supra 137 Ga.App. at 466, 224 S.E.2d 112.

There was evidence from Michel as to the cost involved in waterproofing his basement as well as evidence from Rose Mill, the builders. The trial court admitted Michel's testimony based on his prior experience in home carpentry and construction work. Whether or not a witness is allowed to testify as an expert is a question for the sound discretion of the trial court and such discretion, unless abused, will not be disturbed. Rouse v. Fussell, 106 Ga.App. 259, 126 S.E.2d 830 (1962); Hogan v. Olivera, 141 Ga.App. 399, 400, 233 S.E.2d 428 (1977). Although Michel's qualifications as an "expert" may be somewhat questionable, we find no abuse of discretion here. In addition, there was ample testimony elicited from Rose Mill's agent in charge of construction as to the cost of repair to submit the issue of actual damages to the jury. The trial court's charge was correct and adjusted to the evidence.

2. Ap...

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20 cases
  • Lafontaine v. Alexander, A17A1266
    • United States
    • Georgia Court of Appeals
    • October 31, 2017
    ...and slight circumstances may be sufficient to carry conviction of its existence." (Citations omitted.) Rose Mill Homes, Inc. v. Michel, 155 Ga. App. 808, 809 (2), 273 S.E.2d 211 (1980).Although the trial court's May 2011 summary judgment order found that Watley did not act with intent to in......
  • Williams Tile & Marble Co., Inc. v. Ra-Lin & Associates, Inc.
    • United States
    • Georgia Court of Appeals
    • December 1, 1992
    ...an expert ... as to the difference in values, though such proof would also have been permissible. [Cits.]" Rose Mill Homes v. Michel, 155 Ga.App. 808-809(1), 273 S.E.2d 211 (1980). 5. Appellant also moved for a directed verdict as to appellee's recovery of attorney's fees under OCGA § 13-6-......
  • Kemp v. Bell-View, Inc.
    • United States
    • Georgia Court of Appeals
    • July 1, 1986
    ...the sound discretion of the trial court and such discretion, unless abused, will not be disturbed. [Cits.]" Rose Mill Homes v. Michel, 155 Ga.App. 808, 809(1), 273 S.E.2d 211 (1980). There is no suggestion of such an abuse of discretion here. The court would not be required by law to assume......
  • Brookshire v. Digby, A97A0320
    • United States
    • Georgia Court of Appeals
    • February 5, 1997
    ...Reckless representation of facts as true without knowledge is actionable as a species of fraud without scienter. Rose Mill Homes v. Michel, supra at 810, 273 S.E.2d 211. Appellant contends that a directed verdict should have been granted to him on the failure of appellee to exercise reasona......
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