Newberry v. D. R. Horton, Inc. , 215 Ga. App. 858 ( 1994 )

Pope, Chief Judge.

Plaintiffs brought this breach of contract and negligent construction action against defendant homebuilder. The trial court granted defendant’s motion for directed verdict as to plaintiffs’ claims for negligent construction, punitive damages and expenses of litigation, and the jury returned a verdict for defendant on plaintiffs’ breach of contract claim.

1. Plaintiffs state in their brief, “[t]his appeal is limited to the refusal of the [trial] court to charge and instruct the jury on the plaintiffs’ theories of negligent construction, the damages rules applicable and the expenses of litigation.” We find no error in the trial court’s refusal to charge on these issues. The trial court did not charge the jury on the law governing plaintiffs’ negligent construction claim because it had directed a verdict on that claim at the close of the evidence. Clearly, the trial court did not err in refusing to charge the law applicable to the consideration of one of plaintiffs’ claims when it had already removed that issue from the jury’s consideration.

Moreover, plaintiffs have shown no error requiring reversal in this case even if their enumeration challenging the trial court’s failure to charge is read expansively so as to include a challenge to the directed verdict for defendant, both arguments being in essence a challenge to the trial court’s failure to submit plaintiffs’ claim of negligent construction to the jury for its consideration. The record reveals that the trial court’s stated reasons for directing a verdict on this claim were plaintiffs’ failure to offer expert testimony about the standard of care required of a professional builder and their failure to present expert testimony about whether the construction complained about deviated from that standard.

It is well established that plaintiffs in a negligent construction case must establish the standard of care applicable to the defendant builder by the introduction of expert testimony. Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521 (2) (301 SE2d 688) (1983); see also Hudgins v. Bacon, 171 Ga. App. 856 (1) (321 SE2d 359) (1984). Plaintiffs argue and the dissent urges that plaintiffs satisfied this requirement through the testimony of John Wayne Mandato. The record reveals, however, that Mandato, who testified that he was engaged in the business of home repairs and improvements, not home building, was never tendered by plaintiffs as an expert, and the trial court never ruled on his qualifications to give expert testimony.¹

The trial court has broad discretion to decide whether a witness is qualified to give his opinion as an expert, Jim Ellis Atlanta v. McAlister, 198 Ga. App. 94 (400 SE2d 389) (1990), and it is not for this court to decide whether a witness is qualified to testify as an expert when such witness was never tendered as an expert by a party and was never accepted or rejected as such by the trial court. If anything, the trial court in this case implicitly rejected the witness as an expert by directing a verdict for defendant on plaintiffs’ negligent construction claim for the reasons stated above. Moreover, a review of Mandato’s testimony reveals he never testified about the standard of care required of professional home builders generally,² and, based on his credentials, an abuse of discretion could not be shown if the plaintiffs had attempted to qualify him as an expert and the trial court had explicitly refused to find him qualified to give such expert testimony.

Plaintiffs’ first three enumerations of error are thus without merit.

2. Contrary to plaintiffs’ remaining enumeration of error, the trial court did not err in refusing to charge the jury on litigation expenses.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., and Blackburn, J., concur in part and dissent in part.

1 It is thus understandable that defendant made no contemporaneous challenge to Mandato’s credentials as an expert in residential construction.

2 For a case illustrating the unusual situation when such testimony may not be necessary to submit a negligent construction claim to the jury, see Hudgins v. Bacon, 171 Ga. App. at 856 (1).