MARLIN D. LAWS AND ELIZABETH LAWS v. LARRY RIDDELL
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RENDERED: APRIL 22, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001079-MR
MARLIN D. LAWS AND
ELIZABETH LAWS
APPELLANTS
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
ACTION NO. 99-CI-00162
v.
LARRY RIDDELL
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, HENRY, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Marlin D. Laws and his wife, Elizabeth Laws,1
have appealed from a judgment of the Madison Circuit Court
entered on May 10, 2002, following a jury verdict in favor of
the appellees, Larry Riddell and Otis West, d/b/a Riddell
Construction, concerning the construction of the Lawses’ home.
Having concluded that palpable error in the jury instructions
1
Throughout this Opinion, Marlin Laws will be referred to as “Laws” and
Marlin Laws and Elizabeth Laws will be referred to collectively as “the
Lawses.”
affected the substantial rights of the Lawses, we vacate the
trial court’s judgment and remand this matter for a new trial.
In July 1997 the Lawses purchased land in Madison
County, Kentucky, with the intention of building a new home.
The Lawses decided to purchase a log home kit, which consisted
of plans for the home, the logs and some of the other supplies
necessary to build the home.
roofing.
The Lawses also purchased the
The Lawses obtained a loan from Peoples Exchange Bank
(Peoples) for $101,263.00, which was for purchase of the land,2
the log home kit and other supplies, and construction of the log
home.
The initial plans for the home prepared by Amerilink were
rejected by Peoples and then revised by Burke, Parsons, and
Bogey (BPB).
Peoples required the Lawses to hire a contractor
to assist with building the home.
Through a mutual friend, the Lawses met Larry Riddell3
of Riddell Construction.4
On June 26, 1998, Riddell submitted a
bid of $25,500.00 to construct the home based on the first set
of plans.5
2
Riddell testified he agreed to set the logs and put
The land was purchased for $14,000.00.
3
Riddell testified that he had never built a log home, although some of his
workers had been involved in the building of a log home.
4
Larry Riddell is not the sole owner of Riddell Construction. We will refer
to Larry as “Riddell” and the owners of the company collectively as “Riddell
Construction” throughout this Opinion.
5
The bid stated that it was for wiring the entire house, plumbing the entire
house, installing all flooring, and installing the septic tank as per site
evaluation. It further specifically stated for “[l]abor only” and stated
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on the roof, but nothing else.
He did not want to install the
windows because he did not believe the windows would pass code.6
Riddell made a second bid after the plans were revised by BPB in
July 1998, in the amount of $46,900.00,7 reflecting additional
that Riddell would be paid upon completion of the project.
only person who signed the bid.
Riddell was the
6
Laws testified that Riddell Construction did install two of the windows.
7
The work to be performed under the second bid included:
Install all framing of exterior and interior framing
walls.
Install all wiring excluding light fixtures according
to NEC.L[.]
Install all plumbing according to Code.
fixtures for 3 bathrooms.
Including
Install app. 400’ water line from meter to house.
Install septic system according to recommendations
from health dept.
Install foundation drain around entire perimeter,
rock, and backfill.
Build retaining wall at basement 5X6 and pour
concrete.
Install flu in basement and 2 stories for insert.
Install metal roofing.
Install 2 [s]ets of stairs:
basement.
1 to Left and 1 to
Install underlayment and linoleum entire house 1413
sq. ft.
Pour app. 8X10 [c]oncrete slab in basement.
Bury and install 100’ underground cable for electric.
Install 2 Ton Heat Pump and Air Handler. All duct
work included.
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work requested by the Lawses not included in the original bid.8
The Lawses did not sign on the acceptance line of either bid, so
the parties only had an oral contract.
There was conflicting testimony of record regarding
the parties’ understanding, beginning the day the log home kit
was delivered to the Lawses’ property.
It is disputed whether
Riddell was supposed to be present during the delivery of the
log home kit.
Laws testified that this was understood at the
initial meeting of the parties and that he contacted Riddell a
few days prior to the delivery and Riddell said he would be
present.
Riddell testified that moving the logs to the site was
not his responsibility.
Riddell did send an employee with a
crane to move the logs about 300 feet from the drop site to the
future location of the home, but the crane broke, and ultimately
Laws rented a fork lift and moved the logs on site.
Construction began on the home on November 23, 1998.
Laws testified that the home was to be “put in the dry”
9
after construction began; however, this did not occur.
Riddell
11 days
testified that, while he thought he was to complete the project
as soon as possible, he was not aware of a specific deadline,
nor was one stated in the bids.
He further claimed he was not
8
Riddell offered to do all the construction; however, it does not appear this
was agreed to by the Lawses.
9
The Lawses state in their brief that “‘[p]ut in the dry’ means the house
would appear finished from the outside but would be unfinished if you looked
inside; it consists of putting up the walls, and most importantly, the roof.”
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hired to install the windows, so he could not have put the house
“in the dry”.10
Riddell testified that the log home package did not
match the house plan, and thus, he cut the main roof beam
because it would not line up with the roof trusses.
Laws
testified that this change by Riddell was the first of many
problems and stated that cutting the main roof beam altered the
dimensions of the home.
The Lawses also contend that too much
of the metal roof was being wasted.
The Lawses further claimed
that Riddell Construction built one-half of the roof and then
started cutting the steps to the basement.
According to Laws, a
hole was cut in the floor and then left open.
Instead of going
back to work on the roof, Riddell Construction started on the
inside framing.11
The roof was not covered until January 11,
1999.
After Laws complained to Riddell about the
construction, a meeting was scheduled for January 27, 1999.
At
this time, Laws had not paid Riddell Construction any money.12
10
The log home company set the initial logs, i.e., approximately the first
three tiers. A representative from the manufacturer was on site every day
and Riddell was on site a few times per week.
11
The Lawses claim the interior framing was done incorrectly because Riddell
Construction failed to leave a three-inch space between the trusses and the
top of the wall. Laws testified that he complained to Riddell, who said he
would take care of it, but nothing was done to correct the problem. Riddell
denies every having this discussion with Laws.
12
Riddell Construction was supposed to have received a draw, but apparently
had never requested it.
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Riddell told Laws that if he was not paid for the work completed
at that point, he would file a lien against the real estate.
Laws told Riddell that he would probably have to finish the work
himself because he was going to run out of money, due to wasted
materials.
At the time of the meeting, the Lawses had purchased
the land, the log home kit, the roof, the interior wood, three
doors, and the windows for approximately $62,000.00.
Riddell
had purchased plumbing supplies, the trusses, the hot water
heater, the septic system, and the heating and air system.13
At
the meeting, Riddell presented a figure of $37,500.00 due for
materials and labor as of that date.14
Laws testified that he was “shocked” at the amount
claimed by Riddell, but he wrote Riddell Construction a check
for $30,000.00 from the construction account at Peoples and
signed a $7,500.00 unsecured promissory note, dated January 27,
1999, and due June 27, 1999.
Riddell Construction resumed work
on the log home through February 3, 1999.
The day after the
meeting, Laws informed Peoples of what had occurred.
Peoples
stated that the home would not pass inspection with its current
problems and recommended Laws stop payment on the check.
He did
so without notice to Riddell, who was unaware of the stop
13
Laws testified that the heating and air system was not large enough.
14
Charges for labor as of that date were $10,100.00.
inspected the house at the time he made the demand.
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Riddell had not
payment order until February 3, 1999, when his bank informed
him.
Pursuant to KRS15 376.010, Riddell Construction filed a
mechanic’s lien against the Lawses’ real estate on February 5,
1999.
Subsequently, Riddell Construction filed a complaint on
February 16, 1999, for the monies allegedly owed by the Lawses
and on March 16, 1999, the Lawses filed an answer and counterclaim against Riddell Construction, alleging duress,
misrepresentation, fraud, poor workmanship and breach of
warranties of merchantability, fitness for the particular
purpose, and habitability, and violation of the Consumer
Protection Act.16
Peoples was also named as a party and filed an
answer on March 9, 1999.
On November 15, 1999, the trial court
entered an order holding Peoples’s claims in abeyance pending
the outcome of the jury trial, as the litigation between Riddell
Construction and the Lawses would not affect Peoples’s first
lien on the real estate.
After various continuances, a jury trial was held on
April 22 and 23, 2002.
The evidence at trial consisted of the
two unsigned proposed contracts, the testimony of Laws, Riddell,
15
Kentucky Revised Statutes.
16
Clarence Powell and Mary Powell, who sold the real estate to the Lawses,
were named parties, but were never served with a summons. Clarence Powell
was deceased at the time Riddell Construction filed the lawsuit, and Mary
Powell had released the Powells’s lien against the property on October 16,
1998.
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a representative for the manufacturer of the log home kit,
Riddell Construction’s bookkeeper, and the job foreman.
The
Lawses’ main contentions were that they had been forced to agree
that certain work had been performed and to its value, and that
their constant complaints had been ignored.
The Lawses claim
that the evidence they presented showed that the log home was
constructed improperly and that it would cost over $80,000.00 to
correct the defects.17
17
The Lawses claimed in their brief as follows:
Construction began in late November of 1998,
and was supposed to be “put in the dry” in eleven
days. The cabin was not put in the dry within that
time frame and several rainy periods resulted in
water damage to the cabin. The roof was assembled
incorrectly and daylight shows through the holes.
The porch was constructed improperly and now sags.
One of the logs that was to be used on the porch was
used elsewhere and a substitute piece of lumber from
a local retail lumberyard was used, altering the look
of the home. Some of the logs in the kit were cut,
which altered the dimensions of the home. Material
that was to be used as the floor inside the home was
instead used on the roof. A drain that was installed
at the bottom of the steps outdoors has never worked.
Stairs that were to be installed inside the house
were altered which resulted in reduced square footage
for living space [footnote omitted].
Riddell Construction responded in its brief as follows:
The Appellee complained in his defense of the action
that the Appellee could not get the building square
however, with instruction from the manufacturer
representatives the workers for the Appellees erected
the walls of the home. The Appellants’ expert
witness, Paul Lawson[,] testified that the log
package appeared to be erected correctly. The roof
was framed using manufactured trusses and a steel
roof was installed on the building. During the time
of construction between the first part of November,
1998, and January 27, 1999, the Appellees faced a
great deal of rain. The roofers had difficulty
staying on the roof. It became impossible to dig
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Both parties tendered jury instructions18 which the
trial court found were not materially different.
The trial
court submitted the following instructions to the jury:
INSTRUCTION NUMBER 1
It was the duty of Larry Riddell and
Riddell Construction to perform the work
contracted for in a workman like manner
pursuant to the contract between Riddell
Construction and the Laws[es]. In order to
find for Larry Riddell and Riddell
Construction under this instruction, you
must believe from the evidence that Larry
Riddell and Riddell Construction performed
the work contracted for in a workman like
manner.
Do you find for Larry Riddell and
Riddell Construction under this instruction?
Yes________
No___________
INSTRUCTION NUMBER 2
It was the duty of Larry Riddell and
Riddell Construction to not misrepresent
facts in order to induce the Laws[es] to use
their services. In order to find [for]
Marlin Laws and Liz Laws under this
instruction, you must believe from the
evidence that Larry Riddell and Riddell
holes to install the permanent posts for the support
of the front porch because water filled the holes or
caused them to collapse. As a result, temporary
support posts for the porch had to be used until the
posts furnished with the kit could be used. The
Appellants had windows delivered to the site and
expected the Appellees to install them however this
was not included in the proposal under which the work
was being done and the Appellees did not install the
windows [citations to record omitted].
18
Neither parties’ tendered instructions were made a part of the record.
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Construction made false statements to the
Laws[es] in order to induce the Laws[es] to
use the services of Riddell Construction.
Do you find for [ ] Marlin Laws and Liz
Laws under this instruction?
Yes_________
No__________
INSTRUCTION NUMBER 3
“Workman Like Manner” means such care
as the jury would expect an ordinarily
prudent contractor to exercise under similar
circumstances.
INSTRUCTION NUMBER 4
If you find for Larry Riddell and
Riddell Construction under Instruction
Number 1, you will determine from the
evidence and state sum or sums of money that
will fairly compensate Larry Riddell and
Riddell Construction for such of the
following damages as you believe from the
evidence they incurred:
(a)
Reasonable expenses incurred for
services rendered.
$____________________________
(not to exceed 37,500.00)
INSTRUCTION NUMBER 5
If you find for Marlin and Liz Laws
under instruction Number 2, you will
determine from the evidence and state sum or
sums of money that will fairly compensate
Marlin and Liz Laws for such of the
following damages as you believe from the
evidence they incurred:
(a)
Cost of Log Kit.
$____________________________
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(not to exceed $27,000.00)
(b)
Supplies.
$____________________________
(not to exceed $20,000.00)
Proceed with this Instruction only if your
answer to Instruction No. 1 was “NO”,
otherwise, continue to Instruction No. 7.19
The trial court, submitted an additional instruction
as follows:
INSTRUCTION NUMBER 620
Even if you have found against Larry
Riddell and Riddell Construction under
Instruction No. 1, they may recover for any
services they substantially performed to
which you feel they may be entitled.
Do you believe that Riddell
Construction should recover for any services
they performed for which the Laws have
received a substantial benefit?
19
Instruction No. 7 stated that “[n]ine or more of you may agree upon a
verdict. If all 12 agree, the verdict need be signed only by the foreperson;
otherwise it must be signed by the nine or more who agree to it.” The only
signature that appears on the verdict form is that of the foreperson.
20
The Lawses argue that this additional instruction was contrary to
Instruction No. 1, which called for a determination of whether the work was
performed in a workman like manner. Riddell Construction argues that
Instruction No. 6 merely called for the jury to determine if its work
resulted in a benefit to the Lawses. It argues that it is entitled to direct
reimbursement for material purchased, which is not subject to a quality
standard with respect to “workmanship”. Further, Riddell Construction argues
that the other work was found acceptable by the Lawses’ expert witness in an
unfinished state, and that the log package appeared to be properly erected.
This expert opinion, according to Riddell Construction, was based solely on
the Lawses’ interpretation of the contract, not a review of the actual
documents, under which the work was being performed. However, in its brief
to this Court, Riddell Construction admits that there were things wrong with
the construction, but states that the jury obviously found that Riddell
Construction gave the Lawses something of value for which Riddell should be
compensated.
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YES ___________
NO_____________
If your answer is “YES”, what amount
should Riddell Construction recover?
$_______________________
The trial court informed the parties that it was
adding the additional instruction and would take note that both
sides specifically objected to the additional instruction.
The
trial court asked if they wanted to make further objections and
both parties declined.
When the jury returned its verdict, it
marked “NO” on Instruction No. 1 and thus did not reach
Instruction No. 4, but marked “YES” to Instruction No. 6, and
awarded Riddell Construction $33,100.00, which was less than
Riddell Construction requested.
The jury also checked “NO” on
Instruction No. 2, and therefore did not reach Instruction No.
5.
The trial court entered a judgment on May 10, 2002, based on
the jury award, with interest at 12% per annum from the date of
the filing of the mechanic’s lien on February 5, 1999, until
paid.
The Lawses filed a motion to alter, amend, or vacate
the judgment on May 12, 2002, raising various issues; however,
the only issues before this Court concern the adequacy of the
jury instructions and the sufficiency of the evidence.
In
response to the motion, Riddell Construction argued that neither
party objected to the instructions and that the instructions did
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not call for inconsistent findings of fact because Instruction
No. 6 called for compensation for services benefiting the Lawses
even though the work did not meet the standards set out in
Instruction No. 1.
9, 2003.21
The Lawses’ motion was finally denied on May
This appeal followed.22
The Lawses argue (1) that Instruction No. 6, which the
trial court unilaterally added, was improper and resulted in the
jury making an improper award of damages to Riddell
Construction; and (2) that the jury’s award to Riddell
Construction under Instruction No. 6 was not supported by the
evidence of record.
In its response, Riddell Construction
argues that unlike the verdict in Anderson’s Ex’x v.
Hockensmith,23 the verdict in this case was not confusing, the
21
The Lawses filed a petition for writ of mandamus which was denied by order
entered August 13, 2003. This Court stated that relief had been granted by
the trial court in the May 9, 2003, order, disposing of the Lawses’ motion to
alter, amend, or vacate.
22
The rendition of an Opinion in this case was greatly delayed due to the
Lawses untimely filing of their prehearing statement and brief.
23
322 S.W.2d 489, 491 (Ky. 1959).
Anderson’s Ex’x states as follows:
Here we have an erratic verdict. The jury
found for both the defendant and the plaintiff on the
same issues. The verdict is meaningless because of
the contradiction in finding for the defendant twice
and then in proceeding to award damages to the
plaintiff. So obscure was the intention of the jury
that the court must have resorted to speculation in
order to enter a judgment on the verdict. More than
that, it will be observed that instruction No. 2
authorized a verdict for the plaintiff of a maximum
of $3,331.56, less $478; and instruction No. 3
authorized a verdict for the defendant of a maximum
of $1,416.08, less any finding for the plaintiff
under instruction No. 2. If the word “defendant” was
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jury’s award was well within the evidence introduced by the
parties, and Instruction No. 6 was not inconsistent with the
other instructions.
The parties agree that in reviewing the jury
instructions, we must consider CR24 51(3), which states:
No party may assign as error the giving
or the failure to give an instruction unless
he has fairly and adequately presented his
position by an offered instruction or by
motion, or unless he makes objection before
the court instructs the jury, stating
specifically the matter to which he objects
and the ground or grounds of his objection.
The Lawses claim that they adequately preserved this
issue for appeal because they tendered instructions and objected
to Instruction No. 6 prior to its submission to the jury,25 but
they also argue in the alternative that we should review the
instructions as palpable error.
While we do not believe the
inadvertently used instead of “plaintiff,” still, the
jury was bound to have credited the $1,416.08 by at
least $478, which was directed to be done in
instruction No. 2. This but confounds confusion.
The verdict does not accord with the instructions. A
jury is bound to accept and apply the law as it is
contained in the instructions. If it does not, the
verdict should be set aside as contrary to law
[citations omitted].
24
Kentucky Rules of Civil Procedure.
25
See Brown v. Todd, 425 S.W.2d 737, 739 (Ky. 1968); Surber v. Wallace, 831
S.W.2d 918, 920 (Ky.App. 1992) (stating that when a party tenders
instructions that clearly state his position, an objection is not necessary);
and Cobb v. Hoskins, 554 S.W.2d 886, 888 (Ky.App. 1977).
-14-
error was preserved,26 we do find palpable error.
CR 61.02
states:
A palpable error which affects the
substantial rights of a party may be
considered by the court on motion for a new
trial or by an appellate court on appeal,
even though insufficiently raised or
preserved for review, and appropriate relief
may be granted upon a determination that
manifest injustice has resulted from the
error.
To be palpable, the error must be “easily perceptible,
plain, obvious and readily noticeable.”27
“[T]he palpable error
must result from action taken by the court rather than an act or
omission by the attorneys or the litigants.”28
Relief will only
be granted from a palpable error if a substantial possibility
exists that the result in the trial court would have been
26
We agree with the Lawses that upon tendering proposed jury instructions
under CR 51(3) they were not required to specifically object to Instruction
No. 6. However, the Lawses’ tendered instructions are not in the record, so
“we are unable to determine whether they clearly set forth their position
and, consequently, whether they have properly preserved the alleged error for
appeal.” Surber, 831 S.W.2d at 919. The trial judge upon informing the
parties of Instruction No. 6, stated that he noted specific objections by
both parties. However, neither party made specific objections when given the
opportunity. “‘The important considerations should be: (1) the protection of
the trial court from inadvertent error; and (2) the protection of the
parties’ rights to a fair trial when counsel in good faith attempts to
question the substance of [t]he instructions’” [citations omitted]. Todd,
425 S.W.2d at 739. We do not find the objection met these considerations,
nor did it “fairly and adequately present the party’s position with respect
to a recognized legal theory . . . .” Id.
27
Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1998) (citing Black’s Law
Dictionary (6th ed. 1995)).
28
Cobb, 554 S.W.2d at 888. See also Carrs Fork Corp. v. Kodak Mining Co.,
809 S.W.2d 699, 701 (Ky. 1991).
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different but for the error.29
The Lawses argue, and we agree,
that their substantial rights were affected by the trial court’s
action of adding Instruction No. 6.
Without this erroneous
instruction, there is a substantial possibility that the jury
would have awarded less damages to Riddell Construction or none
at all.
“The purpose of instructions to a jury is to submit
disputed issues of fact for their determination,”30 and fairly
present the legal issues involved.31
“While clarity in an
instruction is desirable, the substance is of greater importance
than is the form” [citations omitted].32
Instruction No. 6
commanded the jury to decide whether Riddell Construction had
substantially performed the oral contract between it and the
Lawses.
“[I]n the performance of a building and construction
contract it is the duty of the contractor to perform his work in
a proper and workmanlike manner.”33
Under the substantial
performance doctrine, a builder, upon substantial performance,
is entitled to recovery of the contract price notwithstanding
29
Butcher v. Commonwealth, 96 S.W.3d 3 (Ky. 2002).
30
Bennett v. Horton, 592 S.W.2d 460, 464 (Ky. 1979).
31
Cobb, 554 S.W.2d at 887.
32
Louisville & Nashville Railroad Co. v. Blevins, 293 S.W.2d 246, 248 (Ky.
1956).
33
Shreve, 777 S.W.2d at 617.
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the work may have been defective or incomplete.34
However, the
doctrine further provides that the homeowner is entitled to
recover damages from the builder for incomplete or defective
work.35
Thus, Instruction No. 6 failed to include the entire law
applicable to this case.
This Court in Shreve stated as
follows:
As is evident, this rule is two-part. Not
only is the contractor allowed recovery of
the contract price; of equal importance is
the contractee’s right to recover damages.
Without the second half of this rule
“substantial performance” would simply
amount to a windfall for the breaching
contractor. We think that the objected-to
instruction did not accurately state the
relative rights of the parties in this
regard. It put the jury in an either/or
position, forcing them to choose between
finding for the plaintiffs or finding for
the defendant.36
Likewise, we conclude that Instruction No. 6 was
misleading to the jury because it only dealt with one aspect of
the substantial performance doctrine, i.e., recovery by the
contractor.
The instructions failed to allow for recovery by
the Lawses for damages due to the unworkman like quality of
Riddell Construction’s performance.
Instruction No. 1 required
the jury to decide whether Riddell Construction’s work was of a
34
Meador v. Robinson, 263 S.W.2d 118 (Ky. 1953).
35
Id.
36
Shreve, 777 S.W.2d 618.
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workman like quality and the jury answered in the negative.
Instruction No. 4 allowed Riddell Construction to recover if the
jury found that its work was of a workman like quality, but
there was no converse instruction allowing the Lawses to recover
for Riddell Construction’s failure to perform its duties in a
workman like manner.
The only way the Lawses could recover
under the instructions submitted to the jury was if it was found
under Instruction No. 2 that Riddell Construction misrepresented
the facts to the Lawses to induce them to use its services.
The
jury found in favor of Riddell Construction under this
instruction, and thus, the Lawses recovered nothing.
The jury’s determination that the Lawses were not
misled in any way by Riddell Construction does not negate the
fact that the jury also found that Riddell Construction’s work
was not of a workman like quality.
Under the substantial
performance doctrine, it was error for the trial court not to
instruct the jury to consider awarding damages to the Lawses
simultaneously with the award to Riddell Construction for the
benefit received by the Lawses.
“Where a verdict is ambiguous,
irregular or defective in form or in substance, a trial court
has the power, indeed, the duty when its attention is called to
the verdict, to require the jury to reconsider and change its
verdict whether or not the court is requested to do so”
-18-
[citations omitted].37
We conclude that the trial court’s
failure to do so in this case constituted palpable error
entitling the Lawses to a new trial.
In Palmore, Kentucky Instructions to Juries,38 the
following instructions are provided:
1.
It was P’s duty under the contract with
D to build the home in a good and
workmanlike manner, free of defects,
and in accordance with the plans and
specifications referred to in the
contract. If you are satisfied from
the evidence that P substantially
performed this duty, you will find in
his favor and award him the sum of
$_________ [unpaid balance of contract
price], less, however such amount as
you may find D to be entitled to deduct
under Instruction 2.
Otherwise you will find for D on P’s
claim against him.
2.
If you find for P under Instruction 1
but are further satisfied from the
evidence that although P substantially
performed his duty under the contract
there were defects in the construction
which P did not correct, then you will
determine from the evidence the cost
reasonably required in order to correct
or remedy such defects and (a) if that
amount is not more than $_______
[unpaid balance of the contract price],
deduct it from the balance otherwise
due P on the contract as provided in
Instruction 1; (b) if, however, you
find such cost to be more than
$___________ [unpaid balance on the
contract price], you will determine
37
Anderson’s Ex’x, 322 S.W.2d at 490.
38
Palmore, Kentucky Instructions to Juries, § 38.05 (5th ed. 1989).
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from the evidence the difference
between the fair market value of P’s
property with the building as it should
have been constructed and its fair
market value with the building as it
actually was constructed, and award D
either the amount of this difference or
the reasonable cost of remedying or
correcting the defects, whichever is
the lesser, from which figure you will
then deduct the sum of $________
[unpaid balance of the contract price]
and award the resulting sum to D.
The term “fair market value” as used in
this instruction is the price that a
person who is willing but not compelled
to buy would pay and a seller willing
but not forced to sell would accept for
the property in question.
3.
If you find for D under Instruction 1,
and are further satisfied from the
evidence that P failed substantially to
perform his duty as set forth in
Instruction 1, you will find for D on
his counterclaim against P and award
him the sum of $______ [amount
deposited or paid on the uncompleted
contract].
4.
[Number of jurors required for a
verdict. See Instruction 9, Sec.
15.01.]
The above instructions are consistent with the holding
in Shreve and clearly indicate the necessity of determining any
recovery for the owner of the property in awarding the
contractor damages for substantial performance of the work.
While the instructions in this case allowed for a determination
of the quality of Riddell Construction’s work, they provided no
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remedy to the Lawses for damages resulting from Riddell
Construction’s failure to perform the work in a workman like
manner.
Having concluded that the instructions to the jury were
inadequate and constituted palpable error, we do not reach the
Lawses’ second issue of whether the verdict was supported by the
evidence.
Accordingly, the trial court having erroneously
instructed the jury in this case and such error constituting
palpable error which affected the substantial rights of the
Lawses, we vacate the judgment of the Madison Circuit Court and
remand this matter for a new trial consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Traci H. Boyd
Lexington, Kentucky
Philip M. Owens
Irvine, Kentucky
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