Snowden v. Gaynor

• Decision Date: 20 May 1986
• Docket Number: No. 14226,14226
• Citation: 710 S.W.2d 481
• Parties: Kidd G. SNOWDEN, Appellant, v. Laura S. GAYNOR, Respondent.
• Court: Missouri Court of Appeals

Page 481

710 S.W.2d 481

Kidd G. SNOWDEN, Appellant, v. Laura S. GAYNOR, Respondent.

No. 14226.

Missouri Court of Appeals,

Southern District,

Division Two.

May 20, 1986.

Randy P. Schuller, Hackworth and Schuller, Piedmont, for appellant.

Cynthia A. Goforth, Robert M. Ramshur & Assoc., P.C., Piedmont, for respondent.

CROW, Judge.

On August 6, 1983, Kidd G. Snowden ("plaintiff") and Laura S. Gaynor ("defendant") entered into a "Sale Agreement" by which plaintiff agreed to sell, and defendant agreed to buy, for a price of $15,500, a house and lot in Wayne County. Defendant, pursuant to the agreement, made a $1,300 down payment, and, with her two young children, took possession. Regarding the balance of the purchase price, the agreement provided:

"$300.00 to be paid the 6th of each month. Beginning the 6th of Sept. 1983 through March 6, 1984. Beginning April 6, 1984 payment will be $200.00 per month until paid in full. Interest 14%."

Defendant made the required payments through June, 1984, but none thereafter. Plaintiff ultimately filed a two-count petition. Count I sought a declaration that the agreement was "null and void," together with an order for possession of the property. Count II sought judgment for "the monthly value of the rent"--said to be $200 per month--from and after July 7, 1984.

Defendant responded with a two-count counterclaim, Count I thereof "sounding in fraud," and Count II "being under implied warranty of habitability."

Trial by the court without a jury produced a judgment that, under Count I of plaintiff's petition, plaintiff was entitled to possession. On Count II of plaintiff's petition, the court found in favor of defendant and against plaintiff. On Count I of defendant's counterclaim, the court found in favor of plaintiff and against defendant. On Count II of defendant's counterclaim, the court found in favor of defendant and against plaintiff, awarding defendant $1,300 damages. Costs were taxed equally.

Plaintiff appeals from the judgment against him on Count II of defendant's counterclaim. He does not appeal from the denial of any of the relief he unsuccessfully sought in his petition. Defendant did not appeal.

Plaintiff's brief presents two assignments of error. The first is that the trial court erred "in that the implied warranty of habitability is applicable only to the sale of a completed new house and the house in question was neither." The second is that the trial court erred in calculating the damages awarded defendant, in that even if there were a breach of warranty, defendant was entitled only to "the cost of repair or the diminution of value, whichever is lower."

Our review is governed by Rule 73.01(c), Missouri Rules of Civil Procedure (17th ed. 1986), and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Credibility of witnesses and the weight to be given their testimony is for the trial court, Estate of Graves, 684 S.W.2d 925, 928 (Mo.App.1985); Mills v. 1st National Bank of Mexico, 661 S.W.2d 808, 810 (Mo.App.1983), which is free to believe none, part or all of the testimony of any witness. Lee v. Rolla Speedway, Inc., 668 S.W.2d 200, 206 (Mo.App.1984); Lohrmann v. Carter, 657 S.W.2d 372, 377 (Mo.App.1983). We assume the trial court believed the testimony and evidence consistent with its judgment, Paramount Sales Co., Inc. v. Stark, 690 S.W.2d 500, 501 (Mo.App.1985); McComas v. Umlauf, 641 S.W.2d 809, 812 (Mo.App.1982); consequently, we accept as true the evidence and permissible inferences which may be drawn favorable to the prevailing party, and disregard the contradictory testimony. Mills v. Cameron Mutual Insurance Co., 674 S.W.2d 244, 246-47 (Mo.App.1984); Cusumano v. Outdoors Today, Inc., 608 S.W.2d 136, 139 (Mo.App.1980).

So viewed, the evidence establishes that the house was built by plaintiff on a lot he owned in a subdivision he was developing. For the house's frame, plaintiff used the frame from a "double wide mobile home" that had burned. Plaintiff situated the house on a hillside, supporting the frame by piers of stacked concrete blocks resting on cement footings. Atop the piers, between the concrete blocks and the frame, plaintiff placed "pieces of wood that had been cut out of trees"; consequently, the frame lay on the wood, not on the concrete blocks. When defendant looked at the house before signing the contract, there was no "skirt" between the bottom of the house and the surface of the ground, thus defendant was able to see the concrete block piers. She did not, however, see the wood blocks atop the piers.

There was no carpet on the living room floor, which was made of "particle board" that, according to defendant, "looked like it was new." Defendant quoted plaintiff as saying that the house was new, that he had built it, and that he knew it was built "good and right." Defendant conceded that plaintiff informed her there was no insulation in the living room ceiling. Furthermore, said defendant, she realized she would have to get "underpinning" installed between the bottom of the house and the ground.

Several weeks after defendant took possession, a crack developed around a door where "you can see light around it." Other problems ensued, including (1) a gap at the top of the sliding glass doors at the front of the house, (2) a "separation" in an interior wall between the kitchen and a bedroom, beginning about halfway up the wall and extending to the ceiling, and (3) a separation between the kitchen cabinets and the ceiling.

Additionally, the roof over a back bedroom began "sagging in," and an electric "baseboard heater" in the living room shorted out and "smoked that wall up" when the baseboard shifted, cutting the heater's wiring.

On top of these difficulties, defendant recounted that on three occasions the sewer pipe leading from the trailer to the septic tank had "come apart." Plaintiff's son repaired it twice, but the third time the two sections could not be forced back together thus there was sewage draining under the house.

Defendant's evidence showed that water running down the hillside flowed beneath the house in such volume that it was "washing the foundation out from under it."

James Raymond Roach, a homebuilder with 25 years' experience, testifying as a witness for defendant, explained that he examined the house on February 20, 1985, and concluded that the footings were insufficient to hold the house. Roach could tell that the house had "shifted" because the block piers were tilted, and he had "seen some movements in the beams that was set on the blocks." He noted that the cement footings were sinking into the earth, and that they had not been set below the frost line. This, according to Roach, made the footings susceptible to movement caused by the "thaw and freeze cycle." Erosion from the runoff down the hillside further undermined the footings. It was the instability of the footings that was allowing the house to shift, which was the source of all the trouble.

In Roach's opinion, the pier construction would not have been acceptable to anyone in the construction trades.

Defendant, a widow in her early twenties at the time she signed the agreement, testified she had never before purchased a house, and that she knew nothing about construction.

In Smith v. Old Warson Development Co., 479 S.W.2d 795 (Mo. banc 1972), it was established that in Missouri, an implied warranty of habitability exists in favor of one who is the first purchaser of a new home from a builder-vendor. In the instant case, as observed earlier, plaintiff contends Old Warson is inapplicable, in that the home he sold defendant was neither new nor completed. In support of his position, plaintiff cites O'Dell v. Custom Builders Corp., 560 S.W.2d 862 (Mo. banc 1978), and Barrett v. Jenkins, 510 S.W.2d 805 (Mo.App.1974). Neither aids him.

In the latter case, the Barretts employed an architect to prepare plans and specifications for a home. The Barretts then entered into a contract with Jenkins, a contractor, to build the home on a lot Jenkins owned. A year after the home was completed, the Barretts sent Jenkins a list of complaints, which eventually formed the basis for a suit by the Barretts against Jenkins in which the Barretts based their claim on the theory that Jenkins had breached an implied warranty of fitness. A $10,000 judgment for the Barretts was reversed on the ground that Old Warson was inapplicable. In explaining why, the opinion pointed out that unlike the purchasers in Old Warson, the Barretts did not buy a completed home which, because of a latent defect, was unfit for use as a residence. Jenkins' obligations to the Barretts were fixed when he contracted to build the home in a workmanlike manner according to the plans and specifications supplied by the Barretts. Jenkins' obligations did not spring from an implied warranty of fitness that arose when he deeded the completed home to the Barretts. Barrett, 510 S.W.2d at 807. Thus, the Barretts misconceived their remedy, which had to be based on Jenkins' alleged breach of his contractual obligation. Id.

In O'Dell, the owners of a tract of real estate decided to build a house thereon. They contacted Custom Builders Corp. ("CBC"), which prepared blueprints and specifications for the structure. CBC then contracted with the owners to build the "house shell." Items for which CBC was not to be responsible included excavation and foundation. After the house was completed and the owners had moved in, they began to notice evidence of "uneven settling" of the house. Eventually, it was determined that the foundation on one side had settled approximately four inches. The owners sued CBC, obtaining judgment for $19,000 for breach of an implied warranty that the plans were fit for use...