Gray v. Mark Hall Homes, Inc.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ANGELA M. GRAY, )
)
Appellant, )
)
v. ) Case No. 2D15-616
)
MARK HALL HOMES, INC., and )
MARK HALL, individually, )
)
Appellees. )
___________________________________)
Opinion filed February 5, 2016.
Appeal from the Circuit Court for
Hillsborough County; Steven Scott
Stephens, Judge.
J. Frazier Carraway and Tracy M. Evans of
Saxon, Gilmore & Carraway, P.A., Tampa,
for Appellant.
Jonathan N. Zaifert and Manuel J. Alvarez
of Rywant, Alvarez, Jones, Russo &
Guyton, P.A., Tampa, for Appellees.
KHOUZAM, Judge.
Angela Gray appeals the final judgments entered against Mark Hall
Homes, Inc. (MHH), and in favor of Mark Hall individually. Because the trial court erred
in limiting the jury's verdict, we reverse and remand for its reinstatement. We affirm the
remaining issues without comment.
In 2005, Angela Gray contracted with MHH to construct a single-family
home on her property. Gray agreed to pay $168,144 in a series of installment
payments for the construction of the home. Shortly after moving into the home, Gray
discovered a number of defects which she brought to MHH's attention. MHH attempted
to remedy the defects, but Gray eventually filed suit for breach of contract. 1
Gray presented the testimony of many witnesses regarding the condition
of the home. Chief among the defects was the lack of flashing, which is typically
installed between walls and roofs to prevent moisture from penetrating the house.
Witnesses testified that lack of flashing caused damage throughout the house as
moisture entered the home, causing wood rot to set in.
David Payton, a general contractor, testified that Gray paid him $16,000 to
replace the balcony on the home. He also testified that when he initially evaluated the
home, he told Gray to "get a bulldozer" and start over. He stated he would be hesitant
to take on the job of repairing the entire house and that he would not even know where
to start.
Wendell Brantley, a real estate agent, testified that he contracted with
Gray to sell the house. When he first saw the house, Brantley too told Gray to tear it
down because it was worthless. He further stated that a bank would not finance the
home given its condition. He listed the house for a year but did not receive a single
1Though Gray stated a number of other claims against both MHH and Hall,
only her breach of contract claim against MHH is relevant to this appeal.
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offer. He testified that the home was the worst house he had seen in his thirty-eight
years in the real estate business and that the wood rot in the home was unbelievable.
Richard Kiddey, a structural engineer and home inspector, reviewed and
approved the construction plans for the home. Kiddey also inspected the home prior to
trial. He observed wood rot, water damage, mold, and doors that were so rotted that
they could not open properly. Of approximately 3000 houses Kiddey had evaluated, he
rated this home in the bottom ten. He testified that the home was not suitable rental
property and uninsurable. He testified that the home was salvageable, but that such an
endeavor would be expensive and that the cost would probably not justify the effort.
At the close of Gray's case, MHH moved for a directed verdict arguing that
Gray had not properly proved damages. The trial court granted the motion in part,
limiting damages to $16,000 because, in its view, the only concrete evidence of
damages was Payton's testimony that he was paid $16,000 to replace the balcony. The
jury returned a verdict for $168,000, but the trial court reduced the award to $16,000.
The trial court erred in limiting the damages in this case. In considering a
motion for directed verdict, the trial court should evaluate the evidence "in the light most
favorable to the plaintiff and every reasonable inference therefrom must be indulged in
the plaintiff's favor." Scott v. TPI Rests., Inc., 798 So. 2d 907, 909 (Fla. 5th DCA 2001).
Further, "[i]f there are conflicts in the evidence or different reasonable inferences may
be drawn from it, then the issue is a factual one that should be submitted to the jury and
not be decided by the trial court as a matter of law." Id. "In ruling on [a motion for
directed verdict], a trial court may not pass on the credibility of witnesses or weigh
competing evidence." Allison Transmission, Inc. v. J.R. Sailing, Inc., 926 So. 2d 404,
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407 (Fla. 2d DCA 2006) (alteration in original) (quoting Stringer v. Katzell, 674 So. 2d
193, 195 (Fla. 4th DCA 1996)).
In Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037, 1039 (Fla.
1982), the Florida Supreme Court adopted the Restatement (First) of Contracts' position
on the measure of damages for a construction defect. The proper measure of damages
for a defective construction contract is:
all unavoidable harm that the builder had reason to foresee
when the contract was made, less such part of the contract
price as has not been paid and is not still payable,
determined as follows:
(a) For defective or unfinished construction he can get
judgment for either
(i) the reasonable cost of construction and completion
in accordance with the contract, if this is possible and does
not involve unreasonable economic waste; or
(ii) the difference between the value that the product
contracted for would have had and the value of the
performance that has been received by the plaintiff, if
construction and completion in accordance with the contract
would involve unreasonable economic waste.
Id. at 1039 (quoting Restatement (First) of Contracts § 346(1)(a) (Am. Law. Inst. 1932))
(emphasis added). The Grossman court went on to quote comment (b) to explain the
rule:
The purpose of money damages is to put the injured party in
as good a position as that in which full performance would
have put him; but this does not mean that he is to be put in
the same specific physical position. Satisfaction for his harm
is made either by giving him a sum of money sufficient to
produce the physical product contracted for or by giving him
the exchange value that that product would have had if it had
been constructed. In very many cases it makes little
difference whether the measure of recovery is based upon
the value of the promised product as a whole or upon the
cost of procuring and constructing it piecemeal. There are
numerous cases, however, in which the value of the finished
product is much less than the cost of producing it after the
breach has occurred. Sometimes defects in a complete
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structure cannot be physically remedied without tearing
down and rebuilding, at a cost that would be imprudent and
unreasonable. The law does not require damages to be
measured by a method requiring such economic waste. If no
such waste is involved, the cost of remedying the defect is
the amount awarded as compensation for failure to render
the promised performance.
Id. (quoting Restatement (First) of Contracts § 346(1)(a) cmt. b (Am. Law. Inst. 1932))
(emphasis added).
Here, multiple witnesses testified that the house was worthless, that
salvaging the house may not be economically feasible, and that Gray might be better off
demolishing it and rebuilding. Based on this evidence, the jury could have reasonably
concluded that the house, as constructed, was valueless. Applying the formula
announced in Grossman, the jury's verdict is a sustainable measure of damages. 2
Therefore, the trial court erred when it limited damages in this case to $16,000. 3
MHH and Hall argue on appeal that the testimony supporting the
conclusion that the home was without value was gratuitous lay opinion. However, they
lodged no objection to the admission of this testimony at trial and cannot contest it for
the first time on appeal. See Maddry v. State, 585 So. 2d 359, 360 (Fla. 1st DCA 1991)
(noting that an appellate court "cannot consider those objections to admissibility of
evidence which are raised for the first time on appeal.").
2We recognize that the exact contract price was $168,144, but we find the
difference between the actual contract price and the jury's award of $168,000 negligible.
It has no bearing on our analysis.
3We also note that in considering the value of the home, the trial court
reasoned that "[t]he notion that the property was completely valueless was contradicted
by the plaintiff's actions." In doing so, the trial court impermissibly reweighed the
evidence. See Allison Transmission, 926 So. 2d at 407.
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Accordingly, we reverse the order limiting damages to $16,000 and
remand with instructions to reinstate the jury's verdict.
Affirmed in part, reversed in part, and remanded.
KELLY and BADALAMENTI, JJ., Concur.
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