Shiffers v. Cunningham Shepherd Builders Co.

• Decision Date: 10 February 1970
• Docket Number: No. 22171,22171
• Citation: 470 P.2d 593,28 Colo.App. 29
• Parties: Egids SHIFFERS and Rasma Shiffers, Plaintiffs in Error, v. CUNNINGHAM SHEPHERD BUILDERS CO., a Colorado corporation, and Duke B. Shepherd, Defendants in Error. . I
• Court: Colorado Court of Appeals

Page 593

470 P.2d 593

28 Colo.App. 29

Egids SHIFFERS and Rasma Shiffers, Plaintiffs in Error, v. CUNNINGHAM SHEPHERD BUILDERS CO., a Colorado corporation and Duke B. Shepherd, Defendants in Error.

No. 22171.

Colorado Court of Appeals, Div. I.

Feb. 10, 1970.

Rehearing Denied March 10, 1970. .

George A. Hinshaw, Aurora, for plaintiffs in error.

Fred W. Vondy, Denver, for defendants in error.

PIERCE, Judge.

This case was originally filed in the Supreme Court of the State of Colorado, and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.

Plaintiffs in error were plaintiffs below and are referred to as such; defendants in error were defendants below and will be referred to as such or as the Corporation or Shepherd.

We will first give a resume of some of the less controverted facts in this case.

In 1956 the Youngfield Heights Subdivision in Jefferson County was platted. The plat was approved by the County Commissioners and was duly recorded. In 1959, Jefferson County Highway Department personnel, apparently without formal authority, altered portions of Youngfield Street which is the northern boundary of Youngfield Heights Subdivision. While it appears that this alteration was not adjacent to the lot involved in this lawsuit, it did have the effect of changing the boundaries of the subdivision so that they no longer conformed with the recorded plat. Subsequent to the change in the location of the street, a portion of the subdivision in which plaintiffs' lot is now located was sold to defendant, Cunningham Shepherd Builders Co.; but the company was not notified of the changed boundaries.

Before constructing homes on the lots which they had purchased, Cunningham Shepherd had the property surveyed by a Mr. Lehti who informed them that he was unable to get 'closure' by using the information supplied on the original plat. He could not specify anything wrong with the original plat; but was sure that the subdivision as it was located on the ground did not conform to the original plat. He submitted his own map of the subdivision as he staked it out and proposed that the plat be changed to reflect these changes. The house built on plaintiffs' lot (lot 4) was built in accordance with the Lehti survey. Lehti, apparently, had no knowledge of the change in the roadway.

Plaintiffs purchased the house and lot known as lot 4 from the defendant corporation in 1961. The lot was owned by the corporation at the time of sale; but the sale was handled through Duke B. Shepherd & Co., realtors, a company owned by the other defendant in this action. Mr. Shepherd was also an officer and stockholder in Cunningham Shepherd Builders Co.

A few weeks after plaintiffs occupied their home, a violent hail and rainstorm struck the area and the basement of the home was flooded to a considerable depth. Mr. Shepherd was informed of this, made arrangements for some remedial grading of the property, and informed the plaintiffs that the difficulty should not recur. Nevertheless, about one week later, a second violent storm struck the area and the basement was once again inundated. Mr. Shepherd was again informed. Although there is considerable dispute as to negotiations for remedying the grading problems on the rear of the lot, plaintiffs eventually had this work done at their own expense.

Further disputes arose between the parties regarding workmanship on the home, concerning the driveway, fireplace, the wiring, and several other alleged defects which we need not enumerate at this time. There was also a dispute regarding replatting and the necessity of obtaining easements from neighboring lot owners.

In 1962 the plaintiffs filed suit against the defendants, seeking damages of $52,000 plus $8,500 in punitive damages.

Defendants filed what was, in effect, a general denial to all the allegations and they counterclaimed for anticipated damages of $2,500 resulting from the necessity of defending this suit and sought dismissal of the plaintiffs' complaint. Plaintiffs later added an additional claim for relief, alleging that Cunningham Shepherd Builders Co. was a sham corporation for whose debt defendant, Duke B. Shepherd, should be personally liable. This claim was dismissed and the plaintiffs' motions to have it reinstated were denied.

After very extensive pretrial discovery, the matter was tried to the court which, after hearing considerable evidence entailing more than 1,000 pages of transcript and numerous exhibits, made extensive findings of fact and law and found for defendants. The Court dismissed defendants' counterclaim.

The briefs and arguments of counsel indicate the following problems which we should determine:

1. Did the trial court err in failing to grant relief for damage allegedly caused by latent soil defects?

2. Did the court err in finding that the plaintiffs had failed to sustain their burden of proof as to the alleged encroachment of their house on adjacent property?

3. Did the court err in finding that good and workmanlike methods were used in the construction of the structure itself?

4. Did the court err in failing to find that the defendants were liable to the plaintiffs for damages resulting from the flooding of the plaintiffs' basement due to the alleged negligence of the defendants?

5. Should the court have awarded the plaintiffs damages for their expense incurred in correcting grading faults on the rear of their property?

We will answer these questions in the order stated above.

DID THE TRIAL COURT ERR IN FAILING TO GRANT RELIEF FOR DAMAGE ALLEGEDLY CAUSED BY LATENT SOIL DEFECTS?

The plaintiffs presented some evidence concerning the cracking of cement work on thier premises--particularly in the driveway. Their theory is, apparently, that these cracks were caused by the presence of some bentonite in the soil underlying their house. They claim that the defendants intentionally concealed this fact from them.

Plaintiffs introduced evidence indicating the presence of bentonite in the soil and testimony regarding the heaving and settling propensities of bentonite in relation to moisture. They made absolutely no showing as to the amount of bentonite present in this particular soil.

Defendants' evidence indicated that, although bentonite was present in the soil on lot 4, it was present throughout that entire area of Jefferson County and that the defendants' construction methods were commensurate with those used elsewhere where bentonite is found.

We have found no authority, and none was cited to us, indicating that the mere presence of an undisclosed amount of bentonite constitutes a 'soil defect,' Per se. Cases cited by the plaintiffs allowing recovery for damages caused by latent soil defects have done so only upon a finding that a soil defect existed. In Cohen v. Vivian, 141 Colo. 443, 349 P.2d 366, (1960), the defect was that the soil was composed of noncompacted trash, refuse, etc., covered by a layer of dirt. In Glisan v. Smolenske, 153 Colo. 274, 387 P.2d 260 (1963), a defect was specifically found although its nature was not specified. In Newcomb v. Shaeffler, 131 Colo. 56, 279 P.2d 409 (1955), the defect was a high degree of calcium carbonate in the soil, which dissolved in water and, consequently, caused erosion of part of the soil on which the foundation was laid. This caused the foundation to settle and disintegrate, with obvious effects on the house resting upon it. In Carpenter v. Donohoe, 154 Colo. 78, 388 [28 Colo.App. 35] P.2d 399 (1964), there was apparently no soil defect involved, but rather a defect in the foundation itself. In all these cases, however, the results were rapid disintegration of the house and a resultant unfitness for human habitation. We have examined the photographs of the alleged defects complained of in this instance which were admitted into evidence. It is apparent that neither defects, nor results, such as those in the cases cited by the plaintiffs, were shown in the instant case.

The court, upon consideration of the conflicting evidence in this respect, properly concluded that no soil defect existed and that there was no negligence in the construction of the improvements--the context in which the matter of soil defects was raised. This finding was supported by evidence in the record, and we will not disturb it on appeal. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537 (1965).

DID THE COURT ERR IN FINDING THAT THE PLAINTIFFS FAILED TO SUSTAIN THEIR BURDEN OF PROOF AS TO THE ENCROACHMENT OF THEIR HOUSE ON ADJACENT PROPERTY?

In order to understand this controversy it is necessary to review, in some detail, three different surveys which were placed in evidence and to make some comparisons between them. The first document was the original recorded plat, which we will refer to as the 'plat'. This was followed by a survey which was performed by a Mr. Lehti, and which we will refer to as the Lehti survey. At a later date another survey was made by the Lane Engineering Company, which was introduced into evidence by the plaintiffs, and which we will refer to as the Lane survey.

Although the record is rather confusing on this issue, it would appear that all parties assumed that the original plat was not surveyed properly due to the fact that subsequent surveys would not 'close' the subdivision, when using data taken from the original plat. We have reviewed the original plat very carefully. We find that it is a properly drawn instrument, and that when the distances and angles shown thereon are calculated, there is no apparent reason why there should be difficulty in obtaining 'closure' in later surveys of this lot. The persons who conducted the Lehti and Lane surveys could say nothing other than that they could not obtain 'closure' from data on the original plat; however, they were at a complete loss to explain at what specific points errors existed in the original plat. The explanation of this very confusing situation came...