Opinion
No. 73-110
Decided November 20, 1973. Rehearing denied December 4, 1973. Certiorari granted January 21, 1974.
Following presentation of evidence on counterclaim against home builder premised on alleged breach of implied warranty of fitness, trial court directed verdict for the builder. Defendants appealed.
Affirmed
1. WITNESSES — Expert — Foundation Contractor — No Experience — Specific Defects — Testimony Not Permitted — Not Abuse of Discretion. In action concerning alleged defects in construction of home, where expert witness had considerable experience as a foundation contractor, but had no experience with regard to the specific corrective actions needed in the structural forms above the foundation, the trial court did not abuse its discretion in refusing to permit the expert to testify on the costs of repairs necessitated by those defects.
Appeal from the District Court of the County of El Paso, Honorable Robert W. Johnson, Judge.
Blakemore McCarty, Ernest O. Tullis, for plaintiffs-appellee.
Agee Fann, Peter A. Goldstein, for defendants-appellants.
This suit originated as a forcible entry and detainer action filed by Gentry Builders to recover possession of Mr. and Mrs. Freeman's home. The Freemans counterclaimed for damages resulting from breach of implied warranty of fitness. Stipulations entered into by the parties disposed of all issues on the F. E. D. action, and trial was held solely on the counterclaim. At the close of Freemans' evidence, the trial court granted Gentry Builders' motion for a directed verdict, on the grounds that no evidence of the amount of damages had been presented. The Freemans appeal from that judgment. We affirm.
Freemans purchased the property in question from Gentry builders in November, 1970. Defects in the house became apparent soon after the Freemans moved in, and as a result, the Freemans did not make payments on their promissory note secured by a second deed of trust held by Gentry. In a separate action, Gentry foreclosed and was issued a deed by the public trustee in November 1971.
On appeal, the Freemans contend that the trial court improperly excluded testimony of an expert witness on the issue of damages. Two expert witnesses testified that the builder failed to place voids in the non-bearing partitions of the house, and that this failure caused cracks to form when the expansive soil pushed against the rigid floor slab. In addition, the design of the patio and landscaping did not provide appropriate drainage, which resulted in extensive leakage.
Appellant then called a contractor to testify to the cost of repairing defects in the home. It was established that he was primarily a foundation contractor and had bid repair jobs in the Colorado Springs area for 15 years, but had no experience in placing voids. Several attempts were made to qualify this witness to testify as to the costs involved in repairing all of the defects in the home. Objections were sustained on the grounds that he had never placed voids or removed and replaced sheet rock in connection with the placing of voids. The witness was not questioned further, even though he had been qualified as an expert in foundation work and could have testified to the cost of repairing some of the drainage problems. In his offer of proof, counsel stated that the witness would have testified that the cost of remedying all of the defects was $8,000 to $10,000.
[1] Appellants contend that, as a matter of law, the witness should have been permitted to testify as an expert on the cost of repairs and that his lack of experience in particular areas goes to the weight, not the admissibility, of his testimony. The law is firmly established in Colorado that the trial court's determination as to the qualifications entitling a witness to testify as an expert are conclusive unless clearly shown to be erroneous. Baldwin v. Schipper, 155 Colo. 197, 393 P.2d 363; Atencio v. Torres, 153 Colo. 507, 385 P.2d 659. The trial court's ruling in this case was not clearly in error and will not be disturbed on appeal.
Appellants rely on Rhodig v. Cummings, 160 Colo. 499, 418 P.2d 521, in which the court indicated that even though two doctors had not performed certain medical tests, they were qualified to give an opinion on their validity because they were acquainted with and understood the tests in question. We do not believe Rhodig is controlling where, as in this case, the witness was asked to estimate with reasonable accuracy the cost of a repair job with which he had no experience.
Appellants further contend that even if the contractor's testimony was properly excluded, the case should have been submitted to the jury because the fact of damage was established, although the amount was uncertain. Appellants cite the following cases in support of their argument: Peterson v. Colorado Potato Flake Mfg. Co., 164 Colo. 304, 435 P.2d 237; Hyman Co. v. Velsicol Corp., 123 Colo. 563, 233 P.2d 977; United States National Bank v. Bartges, 120 Colo. 317, 210 P.2d 600. However, in each of these cases there was evidence from which the trier of fact could reasonably determine the amount of damages to which the party was entitled. Unlike, for example, a claim for pain and suffering, the damages sought in this case are susceptible to proof of specific dollar amounts. Appellants presented no evidence of these amounts. The only dollar amounts in evidence were a bill for $30 for replacing a light fixture, the need for which was not causally linked to the breach of warranty, and $80 expended for an inspection report which may have been a cost of trial item but was not an element of damage. A jury verdict based on the record before us would have been purely speculative and the trial court was therefore correct in granting a directed verdict. See Hyman Co. v. Velsicol Corp., supra.
Finally, appellants argue that their motion to amend the complaint to add a claim for rescission, made at the close of the trial, should have been granted. We do not agree. In order to maintain an action for rescission, a party must tender back that which has been received. Gladden v. Guyer, 162 Colo. 451, 426 P.2d 953; Tisdel v. Central Savings Bank Trust Co., 90 Colo. 114, 6 P.2d 912. At the time of trial appellants no longer had any interest in the property and were not in a position to make the necessary tender.
The other issue raised by appellants relates solely to the forcible entry and detainer action. That action is not before us in this appeal.
Judgment affirmed.
JUDGE PIERCE and JUDGE SMITH concur.