Jetco Heating & Air Conditioning, Inc. v. Spizman

735 S.W.2d 54, 1987 Mo. App. LEXIS 4207
CourtMissouri Court of Appeals
DecidedJune 16, 1987
DocketNo. 51731
StatusPublished
Cited by3 cases

This text of 735 S.W.2d 54 (Jetco Heating & Air Conditioning, Inc. v. Spizman) 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
Jetco Heating & Air Conditioning, Inc. v. Spizman, 735 S.W.2d 54, 1987 Mo. App. LEXIS 4207 (Mo. Ct. App. 1987).

Opinion

SNYDER, Chief Judge.

This is a suit tried to a jury on a claim of Jeteo Heating and Air Conditioning, Inc., for the balance due on a contract for repair of storm damage to a roof; and on the counterclaim of defendants Martin D. Spiz-man and Lois W. Spizman alleging a failure of Jeteo to perform its roof repairs in a workmanlike manner. The verdict and judgment were in favor of Jeteo on both its claim and the Spizman’s counterclaim. The judgment of the trial court is affirmed.

Both parties have appealed. Jeteo alleges as trial court error that there was an improper remittitur. The trial court reduced the judgment on the Jeteo claim from $11,000 to $6,000 plus interest of $2560 to the date of the judgment. This was done on the ground that the jury verdict was not in accordance with the pleadings.

The Spizman’s cross appealed, raising two points. The first charged trial court error in denying a motion for a mistrial [55]*55because evidence of insurance coverage was brought before the jury. In their second point, the Spizman’s assert it was error for the trial court to overrule their objection to the insurance testimony.

Martin and Lois Spizman own a residence in St. Louis County. In the spring of 1981 the copper roof of the Spizmans’ residence was damaged in a wind storm. The Spiz-mans’ insurance carrier recommended several companies to bid on the repair of the damaged roof, including Jeteo.

On April 16, 1981, Jeteo submitted a bid to repair the Spizmans’ roof for $15,272.00. This proposal was accepted by the Spiz-mans and work began on April 27 of the same year. On June 24, 1981, the parties modified their agreement to provide for the use of salvageable pieces of the old copper roofing materials and the agreed price was adjusted downward to $13,500.00.

Karl Sonderman, the owner of Jeteo, testified that the job was completed by June 25, 1981. Respondent Martin Spizman, however, testified that Jeteo did not inform him that the work had been completed until the middle of August, 1981. Spizman testified further that he never received a written bill for the work and could not explain why a letter on his stationary, signed by him and dated August 8, 1981, acknowledged the receipt by him of Jetco’s invoice.

After the work was completed the Spiz-mans made a partial payment in the amount of $5,000 by a check dated August 21, 1981, leaving a balance of $8,500 owing to Jeteo even though there were no complaints with the repair work at that time. Mr. Spizman explained to Mr. Grider, a Jeteo employee, that he wanted to wait for rain to see if there were any leaks in the roof before he paid the balance due. It was agreed that the $5,000 partial payment would be accepted at that time on the condition that the entire bill would be paid within thirty days. Full payment was never received.

During the period between mid-August and mid-November the Spizmans experienced water leakage problems which they attributed to inadequate roof repairs. During this period a Jeteo employee returned to the Spizmans residence on at least four separate occasions in an attempt to remedy any problems with the roof. The Jeteo employee’s inspections included tours of the interior of the house, the attic, and removal of flashing surrounding the chimney. Jetco’s employee determined from his inspections that there were no roof leaks and that water was entering the house beneath the guttering due to a clogged downspout. The guttering had not been part of Jetco’s work.

In January of 1982, upon Jetco’s demand for more money, the Spizmans made an additional payment of $2,500, and told Jet-eo they would pay the balance if there were no leaks after the first spring rain. In early April there were heavy rains and more water leaked into the Spizmans’ house. Jeteo refused to take any further action after making an inspection, determining the problem to be related to the guttering, not the roof. The Spizmans refused to pay the remaining $6,000.00.

In August of 1982 Jeteo filed suit against the Spizmans, seeking a mechanics lien and judgment against the Spizmans for the $6,000 balance, plus prejudgment interest at the rate of 9%. The Spizmans counterclaimed for $25,000 in damages allegedly caused by Jetco’s unworkmanlike roof repairs.

The trial court, on the grounds that such evidence might disclose a real party in interest problem denied the Spizmans’ motion in limine in which they requested that Jeteo be prohibited from admitting evidence on insurance coverage.

Upon direct examination by Jetco’s counsel during Jetco’s case-in-chief, Mr. Spiz-man testified, in response to a question asking why he had contacted Jeteo, that his insurance company had recommended Jet-eo. During the Spizmans’ case-in-chief, in response to a similar question by his own counsel, Mr. Spizman again testified that his insurance company had recommended Jeteo.

During cross-examination of Mr. Spiz-man in the Spizman’s case-in-chief, the court sustained the Spizmans’ objection to [56]*56an inquiry by Jeteo about whether Spizman received any money from his insurance company for the roof damage.

The court made its ruling after an examination of Mr. Spizman out of the hearing of the jury satisfied the court that the Spiz-mans were in fact the real parties in interest. Counsel for the Spizmans then withdrew the request for a mistrial which he had made shortly after his objection.

Upon continued cross examination counsel for Jeteo again inquired of Mr. Spizman as to whether he had received money from any insurance company in regard to this matter. The Spizmans immediately renewed their motion for a mistrial. The court overruled this motion on the ground that there was already evidence in the record that Mr. Spizman had made a claim against his insurance company and had been referred to Jeteo. Mr. Spizman was then permitted to answer the question over his counsel's objection that the mention of the Spizmans’ receipt of insurance proceeds in the presence of the jury would be highly prejudicial. The court allowed this testimony on the grounds that the Spizmans had opened the insurance issue in previous testimony. Mr. Spizman then testified that he received $13,500 in insurance proceeds for the storm loss.

The jury awarded Jeteo $11,000 on its claim against the Spizmans and denied the Spizmans relief on their counterclaim.

The trial court entered judgment in accordance with the $11,000 verdict, but in ruling on the Spizmans’ motion for new trial, reduced the judgment to $6,000 plus interest of $2,560 to the date of judgment. The court held the original judgment to be in excess of the pleadings. Appeals were then taken by both parties.

Jetco’s sole point on appeal complains of the court’s reduction in the amount of the jury’s verdict. The point is denied.

In their motion for new trial, the Spiz-mans contended, among other things, that the $11,000 verdict was against the weight of the evidence. The trial court, in response to that part of their motion for a new trial, ruled that the judgment was in excess of the pleadings, and reduced the judgment to the $6,000 plus pre-judgment interest in the amount of $2560.

Jeteo, in its point relied on asserts that it was an improper remittitur for the trial court to reduce the amount of the jury verdict, although in the argument portion of the brief Jeteo fails to mention remit-titur, nor does it cite any authority on this point.

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Bluebook (online)
735 S.W.2d 54, 1987 Mo. App. LEXIS 4207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jetco-heating-air-conditioning-inc-v-spizman-moctapp-1987.