Sauers v. Poulin Bros. Homes, Inc.

• Decision Date: 03 November 1997
• Docket Number: No. 2743,2743
• Citation: Sauers v. Poulin Bros. Homes, Inc., 493 S.E.2d 503, 328 S.C. 601 (S.C. App. 1997)
• Court: South Carolina Court of Appeals
• Parties: Warren C. SAUERS and Nancy W. Sauers, Plaintiffs, v. POULIN BROTHERS HOMES, INC. and COTA Southeast, Defendants, Of Whom Poulin Brothers Homes, Inc. is the Third-Party Plaintiff/Appellant, v. LEE MOORE PLASTERING and Jimmy Summers d/b/a Summers Roofing Company, Third-Party Defendants/Respondents.

Page 503

493 S.E.2d 503

328 S.C. 601

Warren C. SAUERS and Nancy W. Sauers, Plaintiffs, v. POULIN BROTHERS HOMES, INC. and COTA Southeast, Defendants, Of Whom Poulin Brothers Homes, Inc. is the Third-Party Plaintiff/Appellant, v. LEE MOORE PLASTERING and Jimmy Summers d/b/a Summers Roofing

Company, Third-Party Defendants/Respondents.

No. 2743.

Court of Appeals of South Carolina.

Submitted Oct. 8, 1997.

Decided Nov. 3, 1997.

Stephen P. Groves, of Young, Clement, Rivers & Tisdale, Charleston, for appellant.

William S. Duncan, Georgetown, for plaintiffs.

Clifford L. Welch, of Wheless & McInnis, North Myrtle Beach, for respondent Lee Moore Plastering.

George C. Kosko, Pawleys Island, for respondent Jimmy Summers d/b/a Summers Roofing Company.

HOWELL, Chief Judge:

Warren and Nancy Sauers (the Homeowners) filed an action against Poulin Brothers Homes, Inc. (Poulin), their general contractor, and others over problems with the construction of their new home. Poulin asserted third-party indemnification claims against various subcontractors, including Lee Moore Plastering (Moore), the subcontractor responsible for applying the stucco exterior of the house. Before trial, all claims except Poulin's indemnification claim against Moore settled, and the case proceeded to trial. The jury returned a verdict in favor of Moore. Poulin appeals, and we affirm.

I.

Shortly after moving into their new home, the Homeowners noticed that the house began "developing the measles"--that is, thousands of rust-colored spots began appearing on the stucco exterior of the house. An attempt to remedy the problem through the "pick and patch" ¹ method failed, and the spots reappeared after a few months. Poulin and Moore then "re-skinned" the house, putting a new coat of stucco over the entire house. Shortly after this procedure, cracks appeared in the stucco finish, and the Homeowners began having problems with water intrusion into the house. ² Poulin then hired an expert who performed destructive testing to determine the cause of the problems. According to the expert, Moore had improperly applied the paper-backed lathing stucco system, which caused the stucco to crack and allowed water to enter the house. It was ultimately determined that the only way to fully repair the problems with the house was to remove the stucco completely and reapply it to the entire exterior of the house.

II.

On appeal, Poulin contends the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict. According to Poulin, there was unrefuted evidence at trial establishing Moore's negligence; thus, Poulin argues it was entitled as a matter of law to judgment against Moore in the amount of $148,000, the amount Poulin paid in settlement of the Homeowners' claim. In the alternative, Poulin contends it is entitled to judgment in its favor on Moore's liability and a new trial to determine damages only. We disagree.

When reviewing the denial of a motion for directed verdict or judgment notwithstanding the verdict, this Court must employ the same standard as the trial court--that is, we must consider the evidence in the light most favorable to the non-moving party. See, e.g., Brady Dev. Co. v. Town of Hilton Head Island, 312 S.C. 73, 439 S.E.2d 266 (1993). Neither a directed verdict nor judgment notwithstanding the verdict should be granted unless only one reasonable inference can be drawn from the evidence. Id.; see also Dalon v. Golden Lanes, Inc., 320 S.C. 534, 466 S.E.2d 368 (Ct.App.1996). When considering the motions, neither this Court nor the trial court has authority to decide credibility issues or to resolve conflicts in the testimony and evidence. Garrett v. Locke, 309 S.C. 94, 419 S.E.2d 842 (Ct.App.1992).

In this case, Poulin's expert testified that Moore's application of the stucco system violated industry standards as well as applicable building codes, causing water intrusion into the home. According to Poulin's expert, if the problems with the house were not corrected, the house would continue to suffer water damage and wood decay and eventually would collapse.

Moore did not refute this testimony with its own expert. Instead, the only evidence offered by Moore was the testimony of Lee Moore, the sole proprietor of Lee Moore Plastering. Mr. Moore, who was not qualified as an expert, did not offer testimony about industry standards for the application of stucco exteriors or the requirements of the applicable building codes. Mr. Moore testified only about his general practices in applying stucco, and about how the stucco was actually applied to the Homeowners' house.

Nonetheless, contrary to Poulin's assertion, the fact that the testimony of its expert was not directly refuted does not automatically entitle it to a directed verdict. As a general rule, the jury is free to accept or reject in whole or in part the testimony of any witness, including an expert witness. See State v. Milian-Hernandez, 287 S.C. 183, 186, 336 S.E.2d 476, 478 (1985) (The jury may properly disregard expert testimony.); State v. Campen, 321 S.C. 505, 510, 469 S.E.2d 619, 622 (Ct.App.1996) (Although the only expert testimony established that the defendant had the ability to conform his conduct to standards of right and wrong, the expert's testimony was not "dispositive, inasmuch as the jury could have elected to disregard [the expert's opinion]."); State v. Smith, 304 S.C. 129, 131, 403 S.E.2d 162, 163 (Ct.App.1991) (The jury is free to believe one portion of a witness's testimony and disbelieve another.); accord Smith v. Safeco Life Ins. Co., 303 S.C. 131, 399 S.E.2d 427 (Ct.App.1990), cert. dismissed as improvidently granted, 308 S.C. 94, 417 S.E.2d 537 (1992).

As this Court explained in Black v. Hodge, 306 S.C. 196, 410 S.E.2d 595 (Ct.App.1991):

[T]he essential issue is whether the jury was required to accept [the plaintiff's] uncontradicted testimony that she was injured. Stated in the larger sense, the question is simply this: must a trier of fact always believe uncontradicted testimony? The answer to the question is, plainly, no.

The fact that testimony is not contradicted directly does not render it undisputed. There remains the question of the inherent probability of the testimony and the credibility of the witness or the interests of the witness in the result of the litigation. "If there is anything tending to create distrust in his [or her] truthfulness, the question must be left to the jury."

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