Doughty v. SimpsonDoughty v. Simpson
Leroy Doughty, d/b/a Doughty Remodelers and Builders, brings this appeal from judgment for appellee, Ronald Simpson, entered in a trial before the judge acting without intervention of a jury.
Simpson, an electrical contractor, entered into a contract with Doughty, who identified himself as “a home improvement carpenter” for the construction of a one-room addition to Simpson’s home. The rear sundeck was to be removed and a room constructed in that location to house a jacuzzi. Doughty drew up the contract which covered the majority of one, letter-sized page and generally recited construction of a room in accordance with an attached drawing for the price of $12,500—$7,000 at the signing of the contract, $3,500 when the room was “dried in,” and the balance of $2,000 when the “room is completed and final inspection is made. . . .”
The contract was signed by both parties but contained no details as to construction, little guidance as to material to be incorporated, and no mention of installation of a slate floor and tiles surrounding the jacuzzi, heating and air-conditioning, entry or exits, doors, stairways or steps.
The owner made the initial payment of $7,000. Doughty secured a builder’s permit and construction commenced. The room was “dried in” and inspected by a City of Atlanta building inspector. The second payment of $3,500 was made and Doughty contends he completed construction. A final inspection was made by the city building inspector but final approval was not given.
The evidence is in conflict but the trial judge was authorized to find Simpson voiced his complaints to Doughty and the building inspector. The slate floor had been installed with the wrong side facing *719 up. The grout between the tiles came out and the tile started coming up. The room was not properly aligned with the house and the boards were bent into place rather than a “hip” being constructed. The rear concrete steps were poured but not completed. A licensed heating and air-conditioning contractor was not used as required by the Building Code of the City of Atlanta and final approval was withheld. Dirt was piled up beside the house and washed onto the tennis court. The contractor parked his truck on the lawn and damaged the sod. When Doughty knocked a hole in the basement wall, the interior of the house was damaged, i.e., a marble top bar, the acoustical ceiling, etc.
Simpson discussed these problems with Doughty and said that the appellant told him: “Mr. Simpson I’m not going to do a durn thing else to your room.” Simpson refused to make the final $2,000-payment and Doughty filed this action. Simpson filed a counterclaim for damages to correct the alleged defective work, for loss of use of his property for which he is unable to obtain a certificate of occupancy, for injury to the landscape and tennis court, for loss of income and beneficial use of money he paid to appellant which was not earned.
The trial court found that appellant has failed to obtain final inspection approval and to obtain a licensed heating and air conditioning contractor to get final approval of the room addition. The court also found that the appellee was denied use of the room addition, loss of interest charges on the loan made to finance construction of the room, loss of $3,300 in income due to his time spent away from his business due to appellant’s breach of the contract, and that both city inspectors were of the opinion that the work done was not in compliance with City codes and was not of good quality.
The trial court held that the appellant failed to carry his burden of proof to entitlement of the remaining $2,000 contract balance or $1,425 claimed as quantum meruit for additional work alleged to be outside the contract.
The court found further that appellant breached the contract and his performance “was tardy, faulty and incomplete.” Judgment was granted to appellee on his counterclaim in the amounts of: $5,841 to correct the deficiencies and complete work not done by appellant; $3,000 for loss of use of his property and $600 in attorney fees. Doughty has filed this appeal. Held:
1. The finding of the trial court denying recovery to appellant for the remainder due under the contract and for additional work done outside of the contract is supported by the evidence of record. The remaining $2,000 under the contract was due following final approval by the City. Final approval has been denied because of appellant’s failure to use a licensed contractor to install the heating and air conditioning work, which is required by the City’s building code. This deficiency has never been corrected. The trial court heard the con
*720
flicting evidence as to whether certain work done was included within the contract or was in addition to the contract. This issue was resolved in favor of appellee and the trial court’s finding is not clearly erroneous. OCGA § 9-11-52 (a);
Bell v. Cronic,
2. Error is alleged in the grant of judgment to appellee in the amount of $5,841.80 for repair on the work done or not completed. A duty is implied in every construction contract “ ‘
“to
perform it skilfully, carefully, diligently, and in a workmanlike manner,” ’ ” and whether the contractor exercised the required degree of skill is for the trier of fact.
Blue v. R. L. Glosson
Contracting,
Appellant argues that the estimate of the general contractor is hearsay and it was error to admit it in evidence. “Evidence of value is not to be excluded merely because the valuation fixed by the witness as a matter of opinion depends on hearsay, hence the testimony of the witness is not objectionable for the reason stated.”
Powers v. Powers,
3. Appellant contends the trial court erred in awarding appellee $3,000 in damages as compensation for “loss of use.” Appellee’s counterclaim was based on appellant’s alleged defective work and delay in completion of the contract work. Appellee testified that the contract *721 was signed in April 1987, and work was to be completed in “approximately a month or a month and a half,” according to Doughty. At the time of this trial, July 11, 1988, the room was not complete and Simpson was unable to get a certificate of occupancy from the City of Atlanta.
The trial court held that appellant’s work was “tardy, faulty and incomplete.” The measure of damages to correct the “faulty” work was the amount necessary to correct the defective workmanship.
Simmons,
supra. For “delay” in the performance of a contract, unless excused or waived, damages caused most often take the form of loss of use of the property involved. See generally 22 AmJur2d 87-88, Damages, §§ 69; 70. Georgia courts have approved the award of damages for loss of use. See
F. H. Ross & Co. v. White,
The Restatement of Contracts clearly sanctions damages for any loss “including incidental or consequential loss, caused by the breach” where the amount caused by delay of use of the property is provable with reasonable certainty. Restatement, Contracts 2d, § 347 (b). If the amount of a loss in value of the property cannot be proved with reasonable certainty, the injured party may recover damages based on rental value or interest on the value of the property. Restatement, Contracts 2d, § 348.
Accordingly, we find damages were recoverable for loss of use of the contract property due to breach by appellant occasioned by the lengthy delay in excess of the agreed upon period. In this connection, we are in agreement with the trial court that because of “a poorly written contract” drafted by appellant, we do not view the contemporaneous oral agreement of the parties as parol evidence contradicting or varying the terms of a contract (OCGA § 24-6-1) but is explanatory of the incomplete contract terms.
Thomas v. Clark,
Appellee testified to the interest charges on the loan ($20,000) obtained to pay for the room addition—approximately $386.18 per month (for 14 months) at the time of trial—July 1988. Under the Restatement, if value cannot be proven with reasonable certainty, interest on the value of the property may be used to establish damages. Restatement, Contracts 2d, § 348. The reasonable value of the room addition was established as approximately $20,000. In addition, appellee lost the use of his tennis court and a portion of his basement for a limited period of time when appellant knocked a hole in the basement wall. It is doubtful that an exact value can be placed on the *722 loss of use of such amenities. It is also doubtful that a person would agree to be deprived of the loss of use of his tennis court, bar, recreation room and spa for an extended period of time for the sum awarded—$3,000.
However, proof of amount of damages should not be made upon guesswork, conjecture, or speculation, but should be established with reasonable certainty.
Gray v. Nelson Irrigation,
4. The trial court awarded appellee $600 as attorney fees on the basis that the attorney advised it had spent approximately six hours on this case and would bill the appellee for that amount. The attorney stated he was charging Simpson at the rate of $100 per hour for a total of $600.
Expenses of litigation generally are not recoverable, unless specially pleaded, as in the instant case, and the other litigant has acted in bad faith in making the contract, has been stubbornly litigious, or has caused the prevailing party unnecessary trouble and expense. OCGA § 13-6-11;
Spivey v. Rogers,
Judgment affirmed on condition that damages awarded for loss of use in excess of $2,653.26 be written off; otherwise judgment reversed.