Ince v. Money's Building & Development, Inc.

135 S.W.3d 475, 2004 Mo. App. LEXIS 490, 2004 WL 727050
CourtMissouri Court of Appeals
DecidedApril 6, 2004
DocketED 82899
StatusPublished
Cited by13 cases

This text of 135 S.W.3d 475 (Ince v. Money's Building & Development, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ince v. Money's Building & Development, Inc., 135 S.W.3d 475, 2004 Mo. App. LEXIS 490, 2004 WL 727050 (Mo. Ct. App. 2004).

Opinion

GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Money’s Building & Development, Inc. (“defendant”), appeals from the judgment of the Circuit Court of Jefferson County following a jury trial awarding respondents, Charles, Linna, Nate, and Matt Ince (“plaintiffs”), $420,000 in compensation for property damages based on a breach of contract action. We affirm, conditioned on remittitur.

Plaintiffs and defendant entered into two written agreements regarding the construction of plaintiffs’ home. The first agreement consisted of a letter agreement signed by plaintiffs and defendant dated May 8, 1996. The letter agreement provided that defendant would act as the general contractor and that defendant would “see that the house is built in a ‘workmanlike’ manner and according to all specifica *478 tions and codes.” The second agreement consisted of an escrow agreement signed by plaintiffs, defendant, and Jefferson Savings and Loan Association .dated “May, 1996.” The escrow agreement provided “[cjompletion of the building to be done by the owners.”

After plaintiffs and defendant entered into these two agreements, construction on the house began. In June 1996, plaintiffs noticed that the trusses 1 did not appear to be installed properly. A dispute arose between plaintiffs and defendant as to how the problem with the trusses should be resolved. Ultimately, defendant refused to replace the roof and plaintiffs hired a different contractor to do the work.

After the house was completed, plaintiffs moved in and noticed that mold was growing in many areas of the house. Plaintiffs then filed suit against defendant alleging, inter alia, that defendant breached the contract that it entered into with plaintiffs.

Defendant argues that the problems with the construction of plaintiffs’ home arose because of discrepancies between the two agreements as to whether defendant or plaintiffs would be responsible for completing the construction of the home.

The jury returned a verdict for plaintiffs for breach of contract and negligence, and awarded plaintiff $420,000 in damages for breach of contract, which is the only part of the verdict at issue on appeal. The trial court denied defendant’s motion for a new trial for breach of contract.

In its first point on appeal, defendant asserts that the trial court erred in entering judgment on the jury’s verdict of $420,000 for breach of contract because the amount of the verdict was not supported by the evidence. Defendant argues that the proper remedy for this error is a new trial, but in the alternative, this Court should order remittitur and reduce the jury’s verdict to $180,263.07, the maximum amount of damages supported by the evidence.

The assessment of damages is primarily the function of the jury. Koehler v. Burlington Northern, Inc., 573 S.W.2d 938, 946 (Mo.App.1978). Therefore, we will exercise our power to interfere with and reduce a verdict with caution. Id. Further, we will not disturb a trial court’s entry of judgment on a jury verdict unless there is an abuse of discretion either by the trial court or by the jury. Graham v. County Medical Equipment Co. Inc., 24 S.W.3d 145, 148 (Mo.App. E.D.2000).

A jury has the duty to award a sum that will reasonably compensate plaintiff. Hart v. City of Butler, 393 S.W.2d 568, 580 (Mo.1965). A jury’s verdict for an amount not supported by the evidence can be either grossly excessive or merely excessive. See Worley v. Tucker Nevils, Inc., 503 S.W.2d 417, 423 (Mo.banc.1973). A grossly excessive verdict indicates bias and prejudice on the part of the jury, and requires a new trial to be ordered. Id. In contrast, a merely excessive verdict occurs when a jury made an honest mistake in weighing the evidence as to the nature and extent of the injury, in fixing the damages, and in subsequently awarding a disproportionate amount of money. Id. Such a mistake can be corrected without a new trial by requiring a remittitur of a portion of the amount awarded. Id.

An appellate court has the authority to order a remittitur, or a reduction of an excessive verdict, as a condition of affirmance if a jury’s verdict exceeds the upper limit of a fair and reasonable compensation for a plaintiffs injuries and *479 damages. Id. at 423-24. Section 537.068, RSMo 2000. One of the purposes of the doctrine of remittitur is to promote judicial economy by avoiding the delay and additional expense of a new trial. Bishop v. Cummines, 870 S.W.2d 922, 924 (Mo.App. W.D.1994). Thus, when the amount of damages is the sole error by the jury, an appellate court should not hesitate to give the plaintiff the option to take his or her judgment for the proper sum, and thus end the litigation. Id. at 924, n. 2.

When reviewing whether a verdict is excessive, we view the evidence in the light most favorable to the verdict disregarding all unfavorable evidence to the contrary. Koehler, 573 S.W.2d at 945. Each case must be considered on its own facts with the ultimate test being what fairly and reasonably compensates plaintiff for the damages sustained. Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 141 (Mo.App. E.D.1999).

MAI 4.01 is the proper damage instruction in actions involving breach of construction contracts. McDowell v. Schuette, 610 S.W.2d 29, 39 (Mo.App. E.D.1980). For a breach of contract action, there are two methods commonly used to measure the resulting damages. Hensic v. Afshari Enterprises, Inc., 599 S.W.2d 522, 524 (Mo.App. E.D.1980). The first method, “cost of repair,” calculates the cost of repairing the defective work. Id. The second method, “diminution in value,” is the difference between the value of the property with the defective work and what its value would have been if it had been constructed according to the terms of the contract. See id.

In this case, instruction number eleven, equivalent to MAI 4.01, was the damage instruction given to the jury. This is the proper damage instruction in a case such as this, which involves a breach of construction contract. McDowell, 610 S.W.2d at 39.

First, plaintiffs offered evidence as to the cost of repairs to the roof. Plaintiffs offered into evidence Exhibit 26, a document created by plaintiffs calculating their expenses for the items they had to replace due to the roof damage. Mr.

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135 S.W.3d 475, 2004 Mo. App. LEXIS 490, 2004 WL 727050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ince-v-moneys-building-development-inc-moctapp-2004.