Mayerhofer v. Three R's Inc.

597 So. 2d 151, 1992 La. App. LEXIS 956, 1992 WL 68820
CourtLouisiana Court of Appeal
DecidedApril 6, 1992
Docket90-516
StatusPublished
Cited by17 cases

This text of 597 So. 2d 151 (Mayerhofer v. Three R's Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mayerhofer v. Three R's Inc., 597 So. 2d 151, 1992 La. App. LEXIS 956, 1992 WL 68820 (La. Ct. App. 1992).

Opinion

597 So.2d 151 (1992)

Bernice MAYERHOFER, Plaintiff-Appellee,
v.
The THREE R'S INC., et al., Defendants-Appellants.

No. 90-516.

Court of Appeal of Louisiana, Third Circuit.

April 6, 1992.
Writ Denied July 1, 1992.

*152 Edwin Cabra, Leesville, for plaintiff-appellee.

F. Clay Tillman, Jr., Leesville, for defendants-appellants.

Before GUIDRY, DOUCET and KNOLL, JJ.

KNOLL, Judge.

This appeal addresses the damages which may be awarded in a suit for the rescission of a home building contract and whether nonpecuniary damages for inconvenience and mental anguish were properly awarded. The trial court made the following awards to Bernice Mayerhofer, the homeowner, against Three R's Inc. and Sarver Real Estate, Inc.: $10,000 for inconvenience and mental anguish; $4,000 for future repair; and $637 for rental reimbursement.

Three R's and Sarver contend on appeal that the trial court erred as a matter of law in awarding Mrs. Mayerhofer nonpecuniary damages for inconvenience and mental anguish. They also contend that the trial court erred in allowing Mrs. Mayerhofer to recover $4,000 damages for future repairs, and allowing her to recover a rental refund of $637. We affirm.

FACTS

The learned trial court fully developed the facts relative to the issues presented in its written reasons for judgment which we incorporate herein, in part:

"The plaintiff, Mrs. Bernice Mayerhofer, brought this suit for the rescission of a building contract, coupled with a claim for damages for inconvenience and mental anguish resulting from breach of contract. She also seeks the return of rental paid during the construction of the dwelling. Made defendants are the Three R's, Inc. and Sarver Real Estate, Inc., both domiciled in Leesville, Louisiana.
Prior to August, 1986, having heard that the church known as the House of Blessing was in need of a building, plaintiff, a widow, donated her used house to that *153 church. Although plaintiff was a native of Louisiana, she had resided in California for about forty years, and, after her husband's death, she had returned to Louisiana with her 16 year old daughter with the intention of retiring here.
Richard A. Sarver was pastor of the House of Blessing Church. He was also president of Sarver Real Estate and an officer of the Three R's. He and Mrs. Mayerhofer entered into negotiations for the construction of a new home to be built on the lot from which the donated house was to be removed. Those negotiations culminated in an agreement to buy and sell.
Sarver agreed to construct a National Homes residential building known as the Burchfield, with certain modifications. The original price was $65,000.00. With certain changes, the total was $69,033.19, which plaintiff punctually paid according to the unsigned addendum.
Although the contract contained a six month completion provision, Sarver assured plaintiff that such homes were usually completed within thirty days, and by no means more than forty-five days. Accordingly, Mrs. Mayerhofer vacated her house, and began renting on August 1, 1986. The rental transaction, also, was handled by Mr. Sarver.
After the house had been completed, ostensibly, Mrs. Mayerhofer became aware of numerous defects. A punch list, so-called, was drafted and those defects were substantially repaired by a carpenter, Billy Bush, albeit not so satisfactorily as if the work had been performed properly during the construction.
Mrs. Mayerhofer moved into the residence in February, 1987, and thereafter she discovered defective conditions as follows: some of the doors were so loose that they could not be secured or locked; the garage door was split in two; the cabinets in the kitchen failed to fit properly against the wall (Bush could not repair it properly); the upstairs bathroom leaked into the kitchen downstairs and the leaking caused the floor in the upstairs bathroom to buckle; the leaks caused the carpeting to fade; and the brickwork over the fireplace was markedly uneven, described by her as `a crooked wall'.
Mr. T.J. Gates, eminently qualified as a consulting civil engineer, including expertise in the concept, design, construction and maintenance of residential buildings, testified as to his findings regarding the construction deficiencies as follows:
(1) Misalignment of the walls, exterior and interior, some out of plumb as much as or more than two inches, and irregular brickwork;
(2) Some of the doors would not close properly, particularly those downstairs;
(3) The garage door would not close as of September, 1987, although it was better after Bush worked on it; it was split or cracked vertically;
(4) Misalignment of the bricks in the area of the fireplace and mantle, and the repair to correct this cosmetic defect would entail extensive repair work;
(5) The absence of weep holes in the brickwork.
He concluded that he had `severe reservations' as to whether the construction of Mrs. Mayerhofer's house would have met the minimum residential standards in the community, especially prior to the work by Bush; that this was one of the most sub-standard homes and the worst brickwork that he had seen.
On cross examination, he conceded, however, that the only conditions incapable of being corrected were the framing and the brickwork, and that this would not adversely affect the structural integrity or intended use of the building; that it would not be unfit for residential purposes.
By deposition, A.M. Thornton, a carpenter with many years' experience corroborated much of what Mr. Gates said. He opined that, as to the exterior, the workmanship was substandard, the walls were not plumb, and at one section of the east wall at the north end of the house there was a big bulge in the brick, resulting in a bow. Around the fireplace, he *154 said, the brick `was layed (sic) out of line and it wasn't near straight'. Several walls were out of plumb but only one was `real bad'. He also corroborated Mr. Gates as to the lack of weep holes, but was of the opinion that that could be corrected by drilling holes in the wall. Billy G. Bush, mentioned earlier, the carpenter who performed the remedial or renovative work, described the condition of the house as he found it. His testimony established, also, that sub-standard workmanship had been employed in the construction of this house. He found, e.g., no flashing throughout the house, a condition which did not meet `any kind of standards'. The wall by the kitchen cabinet was about three and one-half inches out of plumb, as well as numerous other conditions which, he said, should not exist in a new home." (Footnote omitted.)

NONPECUNIARY DAMAGES FOR BREACH OF CONTRACT

Three R's and Sarver contend that the trial court erred as a matter of law by awarding nonpecuniary damages for inconvenience and mental anguish as a result of a breach of contract to build a home.

This case presents us with an opportunity to address the award of damages for nonpecuniary loss since the Louisiana Supreme Court's recent pronouncement in Young v. Ford Motor Company, Inc., 595 So.2d 1123 (La.1992). Traditionally, it has been held that damages for nonpecuniary loss are not recoverable for the breach of a contract to build a home. Hageman v. Foreman,

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Bluebook (online)
597 So. 2d 151, 1992 La. App. LEXIS 956, 1992 WL 68820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayerhofer-v-three-rs-inc-lactapp-1992.