Woullard, D v. Sanner Concrete

J-S36004-20
2020 PA Super 263DAVID WOULLARD AND TAMMY : IN THE SUPERIOR COURT OF
WOULLARD : PENNSYLVANIA
:
:
v. :
:
:
SANNER CONCRETE AND SUPPLY, :
SANNER MASONRY AND : No. 224 WDA 2020
EXCAVATION, AND SCOTT SANNER :
D/B/A SCOTT SANNER MASONRY, :
KEITH WELCH D/B/A NEW OUTLOOK :
ENTERPRISE :
:
:
APPEAL OF: SANNER MASONRY AND :
EXCAVATION, INC. AND SANNER :
CONCRETE AND SUPPLY :
Appeal from the Judgment Entered June 22, 2020
In the Court of Common Pleas of Somerset County Civil Division at
No(s): No. 490 Civil 2013
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
OPINION BY OLSON, J.: FILED OCTOBER 30, 2020
Appellants, Sanner Concrete and Supply (“Sanner Concrete”) and
Sanner Masonry and Excavation (“Sanner Masonry”), appeal from the
judgment entered June 22, 2020, in favor of David Woullard and Tammy
Woullard (collectively, “Woullard”).1 We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 The record demonstrates that Appellants appealed the order entered January
7, 2020, in which the trial court denied Appellants’ post-trial motion. In a per
curiam order, this Court directed Appellants to praecipe for entry of the
judgment. Judgment against all parties was entered on June 22, 2020, as
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The trial court summarized the procedural history as follows:
On August 6, 2013, [Woullard] filed a complaint against Andrea
and Daniel Faye doing business as DP Systems ("DP Systems"),
Sanner Concrete[,] Sanner Masonry[,] Scott Sanner [doing
business as Scott Sanner Masonry (“Scott Sanner”)], and Keith
Welch doing business as New Outlook Enterprise [("Welch")].
[Woullard] claimed that each of the defendants breached their
respective contracts related to the construction of Woullard’s
home and a detached garage located [along] Pony Farm Road,
Meyersdale, [Pennsylvania] 15552 [(“the home”)].
On September 16, 2013, [Woullard] filed an amended complaint,
raising claims against all the defendants regarding breach of
contract, promissory estoppel, and unjust enrichment. [The
amended complaint] also added [a] claim for negligent
misrepresentation against DP Systems[ and claims for conversion
against DP Systems, Sanner Masonry, and Sanner Concrete.]
On October 10, 2013, Welch filed an answer and new matter to
the amended complaint and a counterclaim, alleging that, inter
alia, [Woullard] terminated an agreement with Welch regarding
project management services for the construction of [the home]
prior to the completion of the project. In his new matter, Welch
also averred that a written release[,] which the parties executed
on March 26, 2012[, barred Woullard’s claim].
Likewise, on October 13, 2013, DP Systems filed [its] answer and
new matter to [the] amended complaint and [a] counterclaim,
wherein it alleged that [Woullard] breached an agreement with DP
Systems regarding the installation of electrical components at the
[home] during its construction. [Woullard, in a second amended
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discussed infra. Therefore, Appellants’ notice of appeal is deemed filed on
June 22, 2020. See Pa.R.A.P. 905 (stating, “[a] notice of appeal filed after
the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”); see
also Nazarak v. Waite, 216 A.3d 1093, 1098 n.1 (Pa. Super. 2019) (stating,
“an appeal does not properly lie from an order denying post-trial motions, but
rather upon judgment entered following disposition of post-trial motions”
(citation and original quotation marks omitted)). The caption has been
amended accordingly.
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complaint filed February 6, 2015, raised the aforementioned
claims against all defendants but omitted the claims of promissory
estoppel and unjust enrichment against Scott Sanner.]
Scott Sanner filed an answer with new matter and [a]
counterclaim to [Woullard’s] second amended complaint, alleging
that, inter alia, [Woullard] failed to remit payment for work
performed by Scott Sanner related to the construction of
fireplaces in the [home].
On May 16, 2016, DP Systems notified the [trial] court that a
bankruptcy petition had been filed on [its] behalf in the United
States Bankruptcy Court for the Western District of Pennsylvania[.
DP Systems] requested a stay in the matters pending against [it].
On December 11, 2017, DP Systems filed a stipulation to amend
the pleadings, advising [the trial] court that the bankruptcy
proceedings fully discharged [Woullard’s] claim against [] DP
[S]ystems and that [DP Systems’] counterclaim in the [] instant
matter should be stricken.
[Appellants] filed their answer to [the] second amended complaint
and [a] counterclaim on February 1, 2018, alleging, inter alia, that
[Woullard] failed to pay [Sanner Concrete] for work performed
during the construction of the [home. Appellants sought]
$10,078.24 in related damages.
On June 21, 2018, Welch filed a motion for partial summary
judgment[,] seeking dismissal of [Woullard’s] claims regarding
promissory estoppel and unjust enrichment, and partial dismissal
of [Woullard’s] breach of contract [claim]. According to Welch,
[Woullard’s] breach of contract claim against him erroneously
[sought to hold] Welch liable for work performed by independent
contractors hired by [Woullard], and for work completed after
Welch and [Woullard] signed a release agreement on March 26,
2012. Following a hearing in the matter on August 1, 2018, [the
trial court] granted [] Welch's motion for partial summary
judgment with respect to the counts related to promissory
estoppel and unjust enrichment, but denied the motion with
respect to [Woullard’s] breach of contract claim against Welch.
At a pretrial conference hearing held on August 1, 2018, the [trial]
court was notified that [] Scott Sanner did not intend to offer a
defense in the instant matter, and he intended to file for
bankruptcy. No bankruptcy petition has been filed.
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Trial Court Opinion, 10/4/19, at 1-4 (extraneous capitalization, record
citations, and footnote omitted).
The trial court conducted a non-jury trial from May 22, 2019, to May 24,
2019, at the conclusion of which, Appellants, as well as Welch and Woullard,
submitted proposed findings of fact and conclusions of law. On October 4,
2019, the trial court entered a non-jury verdict in favor of Woullard and
against Appellants, Scott Sanner, and Welch.2 In entering its non-jury verdict,
the trial court made the following findings of fact pertinent to Appellants:
I. General Findings of Fact
1. [Woullard] own[s] and reside[s] in [the] home located
[along] Pony Farm Road, Meyersdale, [Pennsylvania]. The
construction of [the] home [] is the subject of the instant
litigation. Specifically, [Woullard’s] claims arise from
construction related to the home's stonework, back porch,
fireplaces, windows, staircase, and the flooring in the garage.
2. To construct [the home, Woullard] acquired architectural
drawings, and in their capacity as general contractor hired
several subcontractors to complete various aspects of the
construction.
3. Adam Sanner does business as both Sanner Concrete [] and
Sanner Masonry[.] Sanner Concrete appears to be a fictitious
name and Sanner Masonry is a corporation.
4. [Woullard] hired [] Sanner Concrete to install stonework on
the exterior of the home.
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2The non-jury verdict awarded Woullard damages as follows: $53,971.13 in
damages against Sanner Concrete, $39,700.00 in damages against Sanner
Masonry, $117,000.00 in damages against Scott Sanner, and $3,800.00 in
damages against Welch. Trial Court Order, 10/4/19.
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5. [Woullard] hired [] Sanner Masonry to perform work on the
back porch and garage floor [of the home].
6. [Woullard] hired [] Scott Sanner to construct three fireplaces.
7. On August 22, 2011, [Woullard] contracted with [Welch],
doing business as New Outlook Enterprise, to serve as a
project manager, which required him to oversee and
complete portions of the construction.
II. Findings of Fact: Stone[ ]Veneer Work by Sanner
Concrete
8. [Woullard] reached a verbal agreement with Sanner Concrete
to install 1609 square feet of stacked[ ]stone veneer, which
was to be purchased by [Woullard], on the exterior of the
home for approximately $16,884.00[. Installation] began in
the late summer of 2012.
9. The stacked stone did not adhere and began to detach from
the exterior of [the] home.
10. The stacked stone veneer did not adhere to the home because
Sanner Concrete failed to notch or corrugate the scratch coat
underlying the stacked stone, which is a gross deviation from
industry standard.
11. [Woullard] contacted Sanner Concrete about the issue several
times, but [Sanner Concrete] neither returned [Woullard’s]
phone calls, nor offered to remedy the loose stone.
12. Stacked stone is difficult to patch because of the variation in
the color of the manufactured stone over time, thereby
creating a lack of aesthetic uniformity. Stacked stone cannot
be reused because it is thin and removing existing mortar is
too labor intensive and would cause the stone to break.
13. [Woullard’s] only remedy for the defective stone veneer is a
complete removal of the loose stone and installation of a new
stone veneer.
14. The cost to remove [] the stacked stone in its entirety [and
replace it] with new stone – 2700 square feet of stone - is
$61,000.00.
III. Findings of Fact: Sanner Masonry’s Work on the Back
Porch
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15. [Woullard] executed an oral agreement with Sanner Masonry,
requiring Sanner Masonry to perform work on the back porch
of the [] home.
16. Within months of completion, the concrete began to crack and
detach around the edges of the porch. Cracks formed in the
concrete throughout the center of the porch as well.
17. [Woullard] notified [] Sanner Masonry regarding the
substantial cracking in both the concrete and aggregate
surface on the back porch, but Sanner Masonry refused to
repair the damage.
18. Sanner Masonry failed to install the requisite expansion and
control joints in the back porch concrete slab. The failure to
install such joints resulted in extensive cracking throughout
the back porch concrete slab. Sanner Masonry also failed to
install proper reinforcement in the back porch according to
industry standards.
19. The only way to remedy the defective construction of the back
porch is to completely remove the current aggregate surface
and replace it. The cost to complete this work is $39,700.00,
which includes the demolition and removal of the current
aggregate surface.
IV. Findings of Fact: Sanner Masonry's Work on the Garage
Floor
20. [Woullard] engaged Sanner Masonry to construct the garage,
including its floor, at a cost of approximately $4,591.86.
21. The sealant that Sanner Masonry placed on the floor is
aesthetically displeasing to [Woullard]. However, the floor is
fully functional and drains properly.
22. [Woullard] contacted Sanner Masonry and expressed []
dissatisfaction.
23. When contacted by [Woullard] regarding the issues with the
garage floor, Sanner Masonry indicated that [it] would accept
a reduced price of $4,030.00.
24. [Woullard] sent Sanner Masonry a $4,030.00 check, which
represent[ed] a $561.86 reduction from the original invoice,
and Sanner Masonry accepted that lesser amount.
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V. [Sanner Concrete’s] Counterclaims: Unpaid Invoices
25. [Woullard] failed to pay Sanner Concrete the contract price of
[$]7,028.87 for Sanner Concrete's installation of a sidewalk,
back steps, and window-well caps.
26. When Sanner Concrete installed the sidewalk, back steps, and
window-well caps, its performance adhered to the contract.
27. It was not Sanner Concrete's duty to ensure that there was a
smooth transition between the sidewalk and the driveway.
Trial Court Opinion, 10/4/19, at 4-6 (record citations omitted).
On October 15, 2019, Appellants filed a post-trial motion. The trial court
entertained argument on the motion and subsequently permitted Appellants
and Woullard to submit briefs pertaining to the motion. On January 7, 2020,
the trial court denied Appellants’ post-trial motion. This appeal followed.3
Appellants raise the following issues for our review:
1. Whether the trial court committed an error of law by holding
that the weighing of diminution in value against the cost to
repair the defects is limited to cases involving a single
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3 Appellants and the trial court complied with Pa.R.A.P. 1925. In a May 21,
2020 per curiam order, this Court directed Appellants to praecipe to enter
judgment in order to perfect the appeal. Appellants responded by filing a copy
of the trial court docket demonstrating the entry of judgment on May 26,
2020, against Sanner Concrete and Sanner Masonry. In a June 18, 2020 per
curiam order, this Court directed Appellants to praecipe to enter judgment
against Scott Sanner and Welch. Appellants responded by filing a copy of the
trial court docket, but the docket sheet did not demonstrate the entry of
judgment against Scott Sanner and Welch. In a June 25, 2020 per curiam
order, this Court directed Appellants to file a certified copy of the trial court
docket reflecting the entry of judgment. Appellants filed a copy of the trial
court docket demonstrating the entry of judgment on June 22, 2020, against
Scott Sanner and Welch. Consequently, Appellants notice of appeal is deemed
to have been filed as of June 22, 2020, when judgement was entered against
all parties. See Rule 905(a)(5).
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builder-vendor defendant where the underlying claim is a
breach of the implied warranty of habitability[?]
2. Whether the trial court committed [legal error] by not requiring
[Woullard] to present evidence of diminution in value,
bypassing several steps, and shifting the burden to Appellants
to refute [Woullard’s] cost-of-repair evidence of damages [in
violation of established case law for calculating awards in
defective construction litigation?]
3. Whether the trial court abused its discretion when it denied
Appellants’ request for a new trial strictly on the issues of
damages[, including an opportunity to present
diminution-in-value evidence,] when the trial court failed to
follow the process/analysis established by case[ ]law for
awarding damages in a defective construction case[?]
Appellants’ Amended Brief at 2-3.
Appellants’ first and second issues, in sum, challenge the trial court’s
damage award, arguing that the trial court erred as a matter of law in
calculating the award based upon the cost to repair the defects and rejecting
a measurement of damages that looks to the diminution in value of the home
attributable to the aggregate defects. Id. at 12-43.
Our standard of review and scope of review when considering challenges
to a non-jury verdict are well-settled.
Our standard of review in non-jury trials is to assess whether the
findings of facts by the trial court are supported by the record and
whether the trial court erred in applying the law. Upon appellate
review[,] the appellate court must consider the evidence in the
light most favorable to the verdict winner and reverse the trial
court only where the findings are not supported by the evidence
of record or are based on an error of law. Our scope of review
regarding questions of law is plenary.
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Century Indem. Co. v. OneBeacon Ins. Co., 173 A.3d 784, 802 (Pa. Super.
2017) (citations omitted), appeal denied, 190 A.3d 1129 (Pa. 2018).
[T]he measure of damages in cases where a homeowner sues for
defective construction is the difference between the market value
of the house as constructed and the market value that the house
would have [] if constructed as promised, with the qualification
that if it is reasonably practical to cure the defects in construction
by repairs, and if the cost of repairs does not exceed the difference
in market value, then the measure of damages is the cost of
repairs.
Gadbois v. Leb-Co. Builders, Inc., 458 A.2d 555, 559 (Pa. Super. 1983),
appeal dismissed, 475 A.2d 742 (Pa. 1984); see also Pennsylvania Dep’t
of Gen. Servs. v. U.S. Mineral Prods. Co., 898 A.2d 590, 596 (Pa. 2006)
(stating that when the defect is reparable, damages are limited to the lesser
of the cost of repair or the diminution in market value of the affected
property).
This Court, in Freeman v. Maple Point, Inc., reiterated that the
trier-of-fact must avoid awarding damages that amount to a windfall for the
injured party. Freeman v. Maple Point, Inc., 574 A.2d 684, 687 (Pa. Super.
1990). As the Freeman Court explained, the cost to repair the defective
construction often includes a large sum to undo the improper work and, in
some cases, results in a cost of repair that is clearly disproportionate to the
probable diminution in value of the real property. Freeman, 574 A.2d at 687
n.2. The rationale behind limiting damages and, thus, avoiding a windfall to
the injured party, is that “an injured party will not, even if awarded an
excessive amount of damages, usually pay to have the defects remedied if to
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do so will cost him [or her] more than the resulting increase in value[.]” Id.
In cases where the cost of repair is clearly disproportionate to the probable
diminution in value, damages will be limited to diminution in value. Id. at
687. The determination of damages is a balancing “between the probable
diminution in value, which is often quite nebulous, and the cost of repairs[,]
which may be determined with greater accuracy.” Id.
Our prior cases offer a framework through which a trial court allocates
the burden of proving the diminution in market value of a property that is
attributable to a particular construction defect. In establishing a claim for
damages when the cost of repair is grossly disproportionate on its face to the
market value of the real property, the injured party is required to present
evidence of diminution in value of the real property in order to demonstrate
that the cost of repair, if awarded as damages, would not result in a windfall
to the injured party. Gloviak v. Tucci Constr. Co., Inc., 608 A.2d 557, 560
(Pa. Super. 1992) (stating that where the cost of repair is grossly
disproportionate on its face to the market value of the property, the injured
party is required to present evidence of the diminution in value of the
property); see also Freeman, 574 A.2d at 687. Conversely, where the cost
of repair is not grossly disproportionate on its face to the market value of the
real property, the injured party is not required to present evidence of
diminution in value of the real property. Id. Rather, the burden shifts to the
party responsible for the defective construction to demonstrate that the cost
of repair is disproportionate to the diminution in value of the real property.
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Id. By way of example, a cost to repair the defective construction that is 48%
of the market value of the real property, i.e. the purchase price of the home,
is grossly disproportionate on its face to the value of the real property. Id.
Whereas, a cost to repair the defective construction that is 9% of the market
value of the real property is not grossly disproportionate on its face to the
value of the real property. Id.
Here, Appellants contend the trial court erred as a matter of law when
it failed to weigh the aggregate costs to repair the defective construction
against the diminution in value of the home, when awarding damages, to
determine if the costs of repair exceeded the diminution in value and, thus,
resulted in a windfall to Woullard. Appellants’ Amended Brief at 13.
Appellants assert that the present market value of the home with no defective
construction, in 2019, was $528,000.00. Id. at 21-33. Appellants argue that
the estimate for the total cost of repair in the amount of $273,000.00,4 which
represented the cost to repair all of the defects caused by all of the parties,
as allegedly established by Woullard’s evidence at trial, amounted to 52% of
the home’s $528,000.00 market value. Id. at 22 (emphasis added).
Appellants contend that the cost of repair was 52% of the home’s market
value and, thus, grossly disproportionate on its face to the value of the home.
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4 The trial court calculated the cost to repair all of the defects to be
$221,500.00; $61,000.00 attributed to Sanner Concrete, $39,700.00
attributed to Sanner Masonry, $117,000.00 attributed to Scott Sanner, and
$3,800.00 attributed to Welch.
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Id. Appellants assert that Woullard, therefore, was required to present
evidence of the diminution in value of the home that was attributable to the
defective construction. Id. Appellants aver that “[t]his requirement [to
present evidence of diminution in value] would [] set a cap on [the] damages
[that Woullard] could have been awarded against all defendants and avoided
the windfall” that resulted from the total damage award. Id. at 24.
In awarding damages based upon the individual costs to repair each of
the defectively constructed items in the home, the trial court stated,
the appropriate measure of damages, in this case, is the cost of
repair. [The trial court] need not weigh the diminution in market
value against the cost to repair the defects. That calculation is
more appropriate in single [] builder-vendor cases where the
underlying claim is a breach of the implied warranty of habitability.
See[] Fetzer[, 582 A.2d at 26] (stating that[] replacement cost
and diminution in market value are recognized measures of
damages for breach of an implied warranty of habitability) []; [see
also Gadbois, 458 A.2d at 555] ([stating that] in an action
against a builder for breach of implied warranty of habitability,
[the p]laintiffs were entitled to the diminution in market value
because repairs were not feasible).
Moreover, to [the] extent [diminution in value] applies outside of
the builder-vendor context, "once the homeowner [] presented
evidence as to the cost of remedying the defects, the burden is on
the contractor to challenge this evidence." Fetzer, 582 A.2d at
26; see also[ Gloviak, 608 A.2d at 560]. In the case sub judice,
the defendants did not present evidence of how each individual
defect affected the market value. The contractor defendants
would have had to present an "all else being equal" figure [FN4] to
explain the impact of a particular defect on the market value,
which they did not do. Thus, because [the trial court finds] that
the defendants failed to establish that the diminution in value is
significantly less than the cost of repairs or that such a formula
even applies in this factual context, [the trial court declines] to
apply the diminution in market value measure of damages.
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[FN4] In a case like this, a party would have [] to offer
evidence of the market value of the property only with the
particular defect that they caused - without any of the other
defects - against the value of the property without any
defects at all. Otherwise, apportioning the overall
diminution of market value would be excessively
speculative.
Trial Court Opinion, 10/4/19, at 20.
Here, Woullard raised claims involving two defects in construction
attributable to Sanner Concrete and Sanner Masonry, namely the defective
installation of stone veneer on the exterior of the home and the defective
construction of the back porch.5 In examining whether the cost of repair was
grossly disproportionate on its face compared to the market value of the home
without the defect,6 each defect and its corresponding cost of repair must be
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5 Woullard raised a claim pertaining to the defective installation of the home’s
garage floor by Sanner Masonry. The trial court, however, did not award
Woullard damages for this defect. Therefore, any challenge as it pertains to
this defect is moot.
6 The record demonstrates that a 2013 appraisal, performed at the request of
Citizens National Bank, valued Woullard’s total property, which included the
home and three acres of land, along with an ancillary building and a barn
located on an additional 18.6 acres of land, at $815,000.00. N.T., 5/24/19,
at 529-530. By subtracting the values assigned to the ancillary building
($120,000.00), the barn ($30,000.00), and the additional 18.6 acres
($37,200.00) from the $815,000.00 value assigned to the total property, the
value of the home without any defects was determined to be $627,800.00.
Id. at 529-532. The 2013 appraisal used the sales-comparison method to
determine the value of the home, including the ancillary building, barn, and
additional acreage. See Plaintiff’s Exhibit 44A. In 2019, the same real estate
appraiser assessed the value of the home, without the ancillary building, barn,
and additional acreage, to be $528,000.00 based upon a sales-comparison
analysis in which the real estate appraiser determined the value of the home
without any defects in the then-current housing market. N.T., 5/24/19, at
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533; see also Plaintiff’s Exhibit 44B. The real estate appraiser subtracted
$345,000.00 for estimates of the costs to repair the defects, as provided by
Woullard, and determined the value of the home with defects to be
$183,000.00. N.T., 5/24/19, at 542, 545-546. The real estate appraiser
explained that the decrease of $99,800.00 between the 2013 market value of
the home with no defects ($627,800.00) and the 2019 market value of the
home with no defects ($528,000.00) was the result of economic factors such
as downward pricing trends in the then-current housing market. Id. at 535.
At trial, when asked what the present market value of the home was currently,
the real estate appraiser stated that the market value was $528,000.00. Id.
at 537.
In their brief, Appellants acknowledged that the 2013 appraisal value of
$627,800.00 reflected the as-promised value of the home without any defects
in 2013. Appellants’ Amended Brief at 21. Appellants further acknowledged
that the 2019 appraisal value of $528,000.00 reflected the value of the home
without any defects in 2019 and at the time of trial. Id. Appellants contend,
“the 2013 and 2019 values are consistent as to the value of the home with no
defects.” Id.
The trial court did not make a specific finding of fact as to the value of the
home without any defective construction in its October 4, 2019 opinion. The
trial court, in its January 7, 2020 opinion denying Appellants’ post-trial motion,
held, however, that the home’s relevant market value was $627,800.00 based
upon the 2013 appraisal of the home. Trial Court Opinion, 1/7/20, at 30 n.21
(stating, “[u]nlike the 2019 appraisal, [the trial court finds] the 2013 appraisal
a credible reflection of the home’s relevant fair market value”). The trial court
found the 2013 appraisal value a credible reflection of the home’s market
value because it used a sales-comparison approach to determine the
as-promised value of the home verses the 2019 appraisal, which the trial
court characterized as having used the cost-to-repair approach to calculate
the as-constructed value of the home. Id. at 32. For purposes of the initial
inquiry into whether each cost of repair was grossly disproportionate on its
face when compared to the value of the home, we find the trial court’s
dismissal of the 2019 appraisal as a reflection of the home’s market value
without any defects to be misplaced. Both the 2013 appraisal and the 2019
appraisal utilized a sales–comparison method to determine an initial
as-promised value of the home without any defects; $627,800.00 and
$528,000.00, respectively.
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considered individually against the market value of the home without the
defect. The cost to repair the defective construction of the stone veneer was
$61,000.00,7 which was 12% of the home’s $528,000.00 market value. The
cost to repair the defective construction of the back porch was $39,700.00,
which was 8% of the home’s $528,000.00 market value. Therefore, these
two damage awards were not grossly disproportionate on their faces when
compared individually to the present market value of the home without the
corresponding defect.8 Consequently, we concur with the trial court that
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Appellants acknowledged that the 2013 appraised value of the home without
any defects ($627,800.00) and the 2019 appraised value of the home without
any defects ($528,000.00) are both correct values of the home at different
points in time. Appellants’ Amended Brief at 21-22. Appellants, therefore,
waived any challenge to the trial court’s failure to determine, as a finding of
fact, the market value of the home without any defects. For purposes of
addressing the merits of Appellants’ issues, we will use the value of the home
with no defects reflected in the 2019 appraisal, that is to say $528,000.00, as
the value of the home because it reflects the most current value assigned to
the home without any defects and values the home without any defects, based
upon a sales-comparison analysis, without consideration of the ancillary
building, barn, and additional acreage. We concur with the trial court that,
for purposes of demonstrating diminution in value, the 2019 appraisal does
not reflect an accurate as-constructed value of the home with defects
($183,000.00) because the appraisal uses an aggregate of the costs to repair
the defects, based upon estimates, and does not calculate the diminution in
value of the home with consideration of each defect individually.
7The outstanding invoices in the amount of $7,028.87, which were due Sanner
Concrete and unpaid by Woullard, are not part of our instant calculation
because these invoices represent an off-set for payment due and, as such, do
not represent any part of the cost of repair.
8 If we rely on the 2013 appraised value of the home with no defects,
$627,800.00, the cost to repair the defective construction of the stone veneer
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Woullard was not required to present evidence of diminution in value of the
home attributable to the defective construction and that the burden of
demonstrating any potential diminution in value shifted to Appellants.
A review of the record demonstrates that Appellants did not present
evidence of a diminution in value of the home that was attributable to either
the defective installation of the stone veneer or the defective construction of
the back porch. Therefore, we discern no error of law in the trial court’s award
of damages, based upon the costs of repair, in the amounts of $53,971.13
against Sanner Concrete and $39,700.00 against Sanner Masonry.9
Consequently, Appellants’ first and second issues are without merit.
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would be 10% of the home’s $627,800.00 market value and the cost to repair
the defective construction of the back porch would be 6% of the home’s
$627,800.00 market value. Use of the 2013 appraised value of the home
further demonstrates that the cost to repair each defect, individually, is not
grossly disproportionate on its face to the market value of the home with no
defects.
9 In contrast to the trial court, we conclude that weighing the cost of repair
against the market value of the property for purposes of the threshold “grossly
disproportionate on its face” inquiry extends to actions for breach of contract
involving repairs or renovations to existing real property or new construction,
as well as actions for breach of implied warranty of habitability asserted in the
builder-vendor context involving new construction. Although the trial court
misstated the need to weigh cost of repair against market value, this oversight
is harmless error in the case sub judice because the cost to repair each defect
was not grossly disproportionate on its face as compared to the market value
of the home without any defects. Because this was the case, the burden of
proving diminution in market value to rebut Woullard’s cost-of-repair evidence
at trial shifted to Appellants. Appellants failed to present diminution-in-value
evidence for each aspect of the overall construction project for which they
were responsible, and therefore, they are not entitled to relief.
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Appellants’ third issue challenges the trial court’s denial of a new trial
limited to damages. Appellants’ Amended Brief at 37-43. Appellants contend
the trial court abused its discretion in denying their request for a new trial
strictly on the issue of damages thereby foreclosing Appellants’ ability to
present evidence of diminution of value. Id.
In reviewing a trial court’s denial of a post-trial motion seeking a new
trial, this Court applies a deferential standard of review. Collins v. Cooper,
746 A.2d 615, 617 (Pa. Super. 2000).
The decision whether to grant or deny a new trial is one that lies
within the discretion of the trial court. We will not overturn such
a decision unless the trial court grossly abused its discretion or
committed an error of law that controlled the outcome of the case.
Id. (quotation marks and citations omitted).
Having identified no error in the trial court’s determination that
Appellants carried the burden to demonstrate diminution in market value of
the home attributable to each defect caused individually by Appellants, and
having determined that Appellants failed to present such evidence, we next
examine whether the trial court abused its discretion in denying Appellants’
request for a new trial to afford Appellants the opportunity to present
diminution-in-value evidence. Based upon our review of the record, we
discern no abuse of discretion on the part of the trial court in denying
Appellants’ request for a new trial limited to damages. Appellants had the
opportunity, throughout the trial, to present evidence pertaining to any
potential diminution in value of the home due to each defectively constructed
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J-S36004-20
item. Appellants, however, elected not to present such evidence. Appellants’
failure to present such evidence at trial does not entitle them to the proverbial
“second bite of the apple” upon the entry of an adverse judgment.
Consequently, Appellants’ third issue lacks merit.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2020
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