BURL HUDSON V. PAUL ANTHONY, D/B/A PAUL ANTHONY BUILDING CONTRACTOR
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RENDERED:
December 23, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002021-MR
BURL HUDSON
V.
APPELLANT
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
CIVIL ACTION NO. 98-CI-00144
PAUL ANTHONY,
D/B/A PAUL ANTHONY BUILDING CONTRACTOR
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; JOHNSON AND MINTON, JUDGES.
MINTON, JUDGE:
Burl and Marilyn Hudson brought a suit against
Paul Anthony, d/b/a Paul Anthony Building Contractor, on claims
that Anthony had not built their house in a workmanlike manner.
During the ensuing bench trial, the Breckinridge Circuit Court
awarded the Hudsons a $1,733 judgment.
They now appeal,
claiming that certain evidence excluded from trial was not
hearsay and that the judge erroneously held the testimony of
J.R. Hatfield was insufficient to establish damages.
Because we
believe that the evidence was properly excluded and because the
judge’s findings regarding the amount of damages were proper, we
affirm.
In 1997, the Hudsons hired Anthony to construct a
house in Caneyville, Kentucky.
was $80,600.
defects.
The contract price for the house
Upon completion, the Hudsons discovered several
Burl contacted Anthony several times to request he
make the necessary repairs; but Anthony refused, and the Hudsons
filed suit.
The Hudsons alleged four specific problems with the
house:
the substructure of the house was faulty, leading to
uneven and bowed floors; the exterior brick was cracked; the
patio door leaked; and the master bedroom door did not fit into
the doorframe.
Several inspections of the house resulted in
estimated damages of approximately $11,650.
The inspections by
at least seven different inspectors took place at various times
in both October 1998 and March 1999.
A bench trial was held on April 18, 2003.
During the
trial, two different evidentiary issues arose.
The judge asked
counsel for each party to brief those issues.
The questions to
be addressed were whether Burl could introduce written estimates
of the repair costs for the house without presenting testimony
from those who prepared the estimates and whether the testimony
of J.R. Hatfield was properly introduced at trial.
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In his memorandum to the court, Anthony argued that
the written estimates were not admissible because they
constituted hearsay statements under KRE 801(c).
He also
claimed Hatfield’s testimony should have been excluded since
Hatfield had not been included as a witness on the Hudsons’
answers to interrogatories; moreover, the Hudsons’ answers to
the interrogatories had not been supplemented to add Hatfield as
a trial witness or to indicate Hatfield’s intended testimony.
Since he had not been put on proper notice, Anthony claimed the
testimony should have been excluded.
The Hudsons’ memorandum took a different approach.
They argued that the written estimates were not hearsay because
the documents were authenticated in court.
Likewise, they
argued that Hatfield’s testimony was admissible because Anthony
was put on notice that Hatfield would serve as a trial witness.
The Hudsons claimed that at the March 5, 2003, pretrial
conference, Anthony was given a supplemental list of witnesses,
which included Hatfield, to which no objection was made.
On September 4, 2003, the court entered its Findings
of Fact, Conclusions of Law, and Judgment.
The court concluded
that the introduction of the written estimates was hearsay as
defined by KRE1 801(c).
1
Citing Wright v. Premier Elkhorn Coal
Kentucky Rules of Evidence.
-3-
Co.,2 the court stated that written reports of experts should not
be introduced into evidence; therefore, the estimates were ruled
to be inadmissible.
With regard to the admissibility of Hatfield’s
testimony, the court did not address whether or not Hatfield
should have been permitted to testify; rather, it maintained
that “the testimony of J.R. Hatfield relative to the difference
in fair market value [was] not sufficient.”
Since the court
determined that Hatfield’s testimony was inadequate and that the
Hudsons had only satisfied their burden of proving damages in
the amount of $1,733, judgment was awarded to them in that
amount.
On appeal, we are asked to review the trial court’s
conclusions with regard to both of these issues.
We affirm.
First, we agree that the introduction of the written
estimates at trial constitutes hearsay.
KRE 801(c) states that
“‘[h]earsay’ is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”
The word
“statement” is further defined in KRE 801(a) as “[a]n oral or
written assertion.”
2
In Wright, this Court held that reports
Ky.App., 16 S.W.3d 570 (1999).
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prepared in anticipation of litigation “constitute out-of-court
statements utilized to prove the truth of the matter asserted.”3
The Hudsons argue that the evidence is not hearsay
because the record was authenticated at trial.
But merely
authenticating a record does not make it non-hearsay.
Even if a
document is properly authenticated under KRE 901, it is
nevertheless considered hearsay if it is introduced to prove the
truth of the matter asserted.4
Authentication merely affirms
that the document is what it is purported to be; meaning, in
this case, Burl’s “authentication” of the written estimates only
affirmed that the documents were, in fact, written estimates.
This affirmation had no effect on the fact that the documents
were nonetheless being introduced to prove the truth of the
matter asserted—namely that the damages to the house amounted to
$11,650.
For introduction of the estimates to be permissible,
the Hudsons would either have to prove that the documents fell
within one of the exceptions to the hearsay rule or that the
people who prepared the estimates were unavailable.5
Since there
is no applicable hearsay exception in this case and since the
3
Wright, 16 S.W.3d at 572.
4
KRE 801(c); see also, Robert G. Lawson, The Kentucky Evidence Law
Handbook, §7.05(7) (4th ed.).
5
KRS 803, 804.
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unavailability of the inspectors was neither alleged nor proved,
we hold that the written estimates were hearsay.
So the trial
court properly excluded them.
Second, we agree with the trial court’s determination
that Hatfield’s testimony was insufficient to establish the
amount of damages.
Since his testimony was deficient, whether
or not he should have been permitted to testify is immaterial.
The trial judge held, “[i]t is apparent Hatfield’s opinion of
damages was taken from the estimates which are inadmissible and
upon comparable sales from a different county and area from
where this home is located making his opinion in reliance
thereon ineffective.”
Hatfield testified that based on the fair
market value of the Hudsons’s home (as he determined it to be),
the amount of damages was $13,400.
CR6 52.01 states that “[f]indings of fact shall not be
set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the
credibility of the witnesses.”
We do not believe the court’s findings in this case
with regard to the amount of damages were clearly erroneous.
The court properly determined that the correct measure of
damages in a case such as this where the house has not been
6
Kentucky Rules of Civil Procedure.
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deemed uninhabitable is the cost of remedying the defect, not
the difference in fair market value.7
Since Hatfield’s testimony
established damages to the Hudsons’s house based solely on the
loss of fair market value, we believe it was erroneous.
Moreover, we are not convinced that Hatfield was qualified to
give testimony regarding damage to the house.
Although it was
established that Hatfield was a realtor and a real estate
appraiser, there was no evidence that he had experience in
inspecting and estimating damages caused by faulty construction.
Therefore, we find no error with the court’s conclusion that his
testimony was lacking.
Since the Hudsons were precluded from introducing the
written estimates and because Hatfield’s testimony was deemed
insufficient, the court concluded that the Hudsons had only met
their burden of proof in the amount of $1,733.00 for repairs to
the sagging floors.
We find no fault with that decision.
For these reasons, the judgment of the Breckinridge
Circuit Court is affirmed.
ALL CONCUR.
7
Baker Pool Company, Inc. v. Bennett, Ky., 411 S.W.2d 335, 338 (1967)
(“[I]f the structure can reasonably be repaired ‘the real measure of
damages for defective performance of a construction contract is the
cost of remedying the defect, so long as it is reasonable’. . . [I]f
the structure cannot be repaired, or if the expense of repair is
unreasonable, the test is the difference between market value of the
building as it should have been constructed and the market value as
it actually was constructed.”)
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark T. Scott
Brandenburg, Kentucky
Steven R. Crebessa
Brandenburg, Kentucky
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