Opinion
C.A. No. 03A-05-003 THG.
Decided: January 16, 2004.
Richard E. Berl, Jr., Esquire, Smith, O'Donnell, Procino Berl, LLP.
Mary R. Schrider, Esquire, Tunnell Raysor, P.A.
Dear Counsel:
This case involves a dispute arising from the construction of a foundation and placement of a modular home. Following trial, the Court below issued a written decision finding that plaintiffs had relied upon the expertise of defendant corporation in making decisions as to the construction of their home and further that the construction of the home was not in a workmanlike manner in accordance with industry standards. The Court below awarded damages to plaintiffs in the amount of Thirty-five Thousand Two Hundred ($35,200.00) Dollars for necessary repairs to the property.
The standard and scope of this Court's review of an appeal from the Court of Common Pleas is to "correct errors of law and to review the factual findings of the Court below to determine if they are sufficiently supported by the record and are the product of an orderly and logical deductive process". State Farm Mutual Auto Insurance Company v. Dann, 794 A.2d 42, 45 (Del.Super.Ct. 2002). I find that substantial evidence exists to support the decision of the Court below and that the decision is a product of an orderly and logical deductive process. Therefore, the decision below is affirmed.
Each of appellants' complaints as to the decision below is basically a disagreement as to the weight given by the Court below to the evidence. The primary complaint is the finding by the Court below that the foundation needed to be replaced. There is substantial evidence in the record to support such a conclusion. There was testimony as to why the proposed and contracted-for height of the foundation was contrary to the construction industry standards and practice of Sussex County. But the height was not the reason for replacing the foundation. There was specific testimony from experts as to the durability of the concrete foundation and the problems with using a watered-down concrete mixture. There were problems with the number of support pillars and the positioning of same. The evidence as to the durability of the concrete, or more specifically the lack of durability, is in the record.
Defendant argues that the Court below ignored its expert's determination that the strength of the concrete was 2,692 pounds psi in April 2002, approximately two (2) years from the pouring of the concrete. Defendant argues that this fact alone was uncontroverted and that therefore the decision below was not a deductive and logical finding. Defendant's argument ignores other testimony. There was testimony that the older concrete gets, the harder it will become and therefore one would expect the strength, as measured through psi, to increase over time. The defendant's expert acknowledged that concrete strength would not have passed County Code requirements of 2,500 psi on the date relevant to testing, which is 28 days from the pouring of the concrete. Plaintiffs' expert noted the difference in the strength of concrete versus the durability of concrete. Too much water makes the concrete less durable over a period of time. There was ample evidence to base the conclusion that the concrete used in this case was watered down.
Upon finding that the foundation had to be replaced, the Court then addressed collateral or consequential damages which are reasonable arising from the necessity of raising the house from its current foundation and demolishing and rebuilding the foundation. Utilities and mechanical systems have to be disconnected and reconnected. A deck which the plaintiffs had added to their home needs to be removed and then reconnected. There are numerous interior repairs which need to be made which are a direct result of the problems with the foundation. The testimony also establishes that the foundation, as built, was too low based upon the topography of the property. While it is correct that the parties contracted to the specific height that was built, that determination was made at the recommendation of the defendant and therefore it was reasonable for the Court below to determine that also needed to be corrected.
Defendant complains that the damages awarded are unreasonable. Damages in a breach of contract construction case are awarded in an amount required to remedy the defective performance unless it is not reasonable or practical to do so. Council of Unit Owners v. Carl M. Freeman Associates, Inc., 564 A.2d 357 (Del.Super.Ct. 1989). Defendant argues that the demolition of the existing foundation is not reasonable and practical, and the Court therefore should have determined damages by diminution in value. There is nothing presented in the briefs to suggest that defendant offered another measure of damages at trial. I do not find the determination by the Court below that the required remedy would be economic waste or that it was unreasonable to remedy the problem by replacing the foundation. Having found the foundation to be of poor quality and having determined durability to be a problem, then it was logical to determine replacement was appropriate.
Finally, the defendant complains that the Court was unfair and committed error by requesting further evidence concerning the grading of the property. The Court was within its privilege and right to seek further information concerning specific questions without reopening the door to all other damages in the case. The Court below found for the plaintiffs, but determined that the cost of grading should be deducted from the estimate which included remedying all the aforementioned problems. The Court requested further information as to what the grading cost would be in order to deduct that from the damages awarded. It was not unreasonable or inappropriate for the Court to make this inquiry pursuant to Delaware Rules of Evidence 614.
In conclusion, the decision below is the product of a logical and deductive process. Defendants' arguments go to the Court's consideration of the weight of the evidence presented in defense. It is not this Court's function, in reviewing on appeal, to reweigh and reevaluate the evidence.
The judgment below is affirmed. IT IS SO ORDERED.
Yours very truly,
T. Henley Graves