GOHEEN (JERRY), ET AL. VS. DILAURA (RICHARD), ET AL.
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RENDERED: MAY 9, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001714-MR
JERRY GOHEEN AND
KAREN GOHEEN
v.
APPELLANTS
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 95-CI-00146
RICHARD DILAURA AND
LINDA DILAURA
APPELLEES
OPINION
AFFIRMING
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BEFORE: MOORE AND WINE, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
MOORE, JUDGE: Jerry and Karen Goheen appeal the Marshall Circuit Court’s
judgment in this defective home construction case. After a careful review of the record,
we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1992, Richard and Linda DiLaura entered into a contract with Jerry and
Karen Goheen, in which the Goheens agreed that Goheen’s Construction would build a
home, meeting certain specifications, for the DiLauras in exchange for $116,000.00.
Senior Judge David C. Buckingham, sitting as Special Judge by assignment of the Chief
Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
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Construction began, and after it was completed, the DiLauras began to notice
construction problems with the home. The DiLauras filed a complaint in circuit court,
alleging that the Goheens had built their home defectively.
Through the course of litigating this case, the DiLauras specified that the
work needed to repair the house included: sloping the garage floor to allow water to run
off; adding supports under the house, as well as support braces, and extra nails in the
attic; repairing the foundation; fixing sheetrock stains and tears throughout the house;
ensuring proper caulking of light fixtures to keep water out; fixing siding above a door to
prevent water from dripping underneath the siding; replacing the parquet floor due to
water intrusion during rainy weather; checking the sub-floor for water damage; replacing
a door that had rotted at the bottom; adjusting the rug in front of the mantle, as it was
uneven; preventing water from entering a hole under house; replacing trim work, frame
and support woodwork that had hammer marks, chips, and other imperfections;
repainting walls; fixing problems with the chair rails; trimming doors; squaring up a
window; replacing soil above the septic tank; sealing the front porch and three stoops;
inspecting the dining room door to determine why it leaked; sanding and adding coats of
urethane to beams and railings; adding a coat of paint to spindles; replacing destroyed
wallpaper; rounding out and repainting windows in the foyer; installing shower stalls;
sealing off the roof and stopping a leak in the skylight; installing an exhaust fan over the
Jacuzzi; installing four sets of stairs; replacing and rewiring lights; fixing leaky windows;
fixing foundation cracks; and correcting the shape of the back porch.
In their interrogatories propounded to the Goheens, the DiLauras asked
the Goheens to disclose their expert witnesses, as well as the subject matter of those
witnesses’ testimonies, and “[t]he substance of facts and opinions to which the expert is
expected to testify,” as well as a “reasonable summary of grounds upon which each
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opinion is based.” The Goheens responded by providing a list of expert witnesses and
their addresses, and at the bottom of this list, the Goheens stated as follows: “Each
witness identified herein shall testify as to the condition of the subject property based
upon personal observation and any defects and/or flaws that may have existed in the
past or may exist presently, and the probable cause thereof.”
Trial commenced,2 and Richard DiLaura testified that he had obtained a
floor plan for the house and, once Goheen’s Construction was chosen as the contractor
to build the home, Richard drafted the construction contract. The contract was signed
by Richard and Linda DiLaura, as well as Jerry and Karen Goheen. A couple of weeks
after the DiLauras moved into the home, they began to see problems with the house,
such as the workmanship on the windows and the doors. They noticed that woodwork
had been cut but not sanded, and that there were hammer marks on some of the
woodwork.
Soon thereafter, the house began to settle, and when they walked through
certain parts of the house, there were vibrations and the floors would move. The
DiLauras discussed the problems with the Goheens. Richard DiLaura testified that in
attempting to remedy the problem with the foundation settling, Jerry Goheen placed
pieces of brick in or under the foundation to prop it up. That solved the problem for a
little while, but then the house began to move again. Jerry came back to the house and
fixed the problem a second time, but the house again began to move a third time. At
that point, Richard noticed that all Jerry had done to fix the problem with the house
moving was to wedge some wood into the foundation to make “the fit” a little tighter.
Richard testified that after the first rainstorm, he noticed that the garage
was full of water. The DiLauras also noticed that rain was seeping under the garage
We note that when we mention the trial, we are referring to the trial that formed the basis for
this appeal. Apparently, a prior trial in this case was begun, but a mistrial was declared on the
third day of that trial, due to improper communication between the jurors.
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doors. During subsequent rainstorms, the rain came in not only around the garage
doors, but around the windows in the front of the house, under the front door on the
porch, and it seeped up through the parquet floors. In trying to prevent the rain from
coming into the house, Richard caulked around the windows and the front door. Soon
thereafter, rain began coming through the roof and the skylight, and Richard went up to
the roof to try to stop the leak. He informed Jerry Goheen about the leaky roof and
skylight, and Jerry responded by stating that skylights tend to leak.
After seeing what Jerry had done to fix the foundation, Richard attested
that he realized he could not rely on Jerry to fix the other problems with the house, so
the DiLauras hired an attorney and filed this lawsuit. The DiLauras obtained estimates
from various contractors for repairing the problems with the house.
During Richard DiLaura’s deposition, he was asked about repairs that
were recommended by his expert witness, an engineer named Jack Williams.
Specifically, Richard was asked why he had not replaced all the piers with the exception
of three that were within the foundation’s perimeter, as recommended by Williams.
Richard attested that he did not “have the funds or the means to do that. And if [he] did
that, [he] would not have evidence of the house not being properly supported.”
Jack Williams testified at trial. He attested to various problems that he
found during his inspection of the home, including problems with the placement of all
but three of the piers in the foundation. He testified that the problem with the piers was
that the girders bearing down on those piers were not placed in the centers of the piers,
as they should have been to keep an even load of weight on the foundation. Rather,
the girders were off-center, causing the piers to push down into the foundation unevenly
and, thus, putting more weight on the soil supporting the foundation on one side of the
pier than on the other, causing the foundation to become uneven.
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On cross examination, Williams testified that he was unable to inspect the
entire roof of the house because it was covered up when he was there and, thus, he
could not say with any certainty that the roofing system had caused any defect with the
house. Williams also attested that two piers in particular were a problem because they
had tilted, and those were the only piers that he could testify to, with any certainty, that
had caused a defect with the house. Furthermore, Williams testified on cross
examination that the only defect that he could, with certainty, point to as a result of the
construction of the house was a crack in a corner between the ceiling and the wall.
However, Williams also attested that the safe spans for some of the floor joists had
been exceeded, and that it was not a matter of “if” they would fail, but “when” they would
fail. Williams further stated that those joists may not fail in any of the parties’ lifetimes,
but they would fail eventually due to the unsafe spans.
Andrew Miller, a real estate appraiser, testified that he appraised the
DiLauras’ house in December 2003. He provided two different appraisals for the
property. The first appraisal was the value of the property if there was no damage to
the property. Miller assigned a value of $225,000.00 to the property in this appraisal.
The second appraisal was based on the “as is” value of the property, and Miller valued
the property at $100,000.00 in this condition. Thus, the difference in the values of the
property was $125,000.00. Miller testified that he estimated it would cost $70,000.00 to
repair the house.3
When the Goheens were ready to begin presenting their case at trial,
which was to include expert testimony, the DiLauras objected, claiming that the subject
When asked what he would say if he was told that it actually would cost $90,000.00 to put the
house in the condition it should have been without any damage, based on estimates obtained
from contractors, Miller responded that such a number would have no affect on the $225,000.00
appraisal for the house without damage, but it would have lowered the appraisal on the house in
the “as is” condition to $80,000.00.
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matter to which the Goheens’ experts were prepared to testify had not been disclosed to
the DiLauras prior to trial, as required by both court order and CR4 26.02(4), and as
requested in the DiLauras’ pre-trial interrogatories propounded to the Goheens. A
hearing concerning the expert testimony was held in chambers and outside of the jury’s
presence and the circuit court sustained the DiLauras’ objection. Therefore, the
Goheens were not permitted to present their expert witnesses’ testimonies.5
Consequently, the Goheens had to resort to using lay witness testimony.
The Goheens moved for a directed verdict concerning Karen Goheen,
arguing that there was no testimony showing that she was involved in the construction
of the house. The circuit court denied this motion.
After all of the evidence was presented and while discussing the
instructions that would be given to the jury, the Goheens’ attorney requested an
instruction on the DiLauras’ comparative fault. Counsel’s basis for requesting such an
instruction was that Richard DiLaura had been the one to draft the construction contract
and there was an issue of fact about whether the DiLauras had been the ones to hire
the contractor who installed the skylights. The circuit court denied the Goheens’
request to include a comparative fault jury instruction. However, the court did include
an instruction concerning mitigation of damages.
The Goheens’ counsel also requested the jury instructions to include a
$25,000.00 cap on the amount of damages that could be awarded. Counsel’s reason
for this request was that the house was appraised in 1996 for $200,000.00, and there
was testimony that, if the house was free of defects, its value would be $225,000.00.
4
Kentucky Rule of Civil Procedure.
We note that there is no order in the record to show that the circuit court sustained the
DiLauras’ objection and denied the Goheens permission to present their expert witnesses’
testimony, and the video tape of the in-chambers hearing on this matter was cut short, so it also
does not include the circuit court’s ruling. However, the parties agree that the circuit court
sustained this objection by the DiLauras. Therefore, we will treat the objection as sustained.
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Thus, counsel argued that the difference between the two, i.e., $25,000.00, should be
the maximum amount that the jury could award. The circuit court denied this request,
reasoning that it was a factual issue for the jury to determine whether the damages
awarded should be for the cost to repair the house or the difference in value between
the house “as is” and the house as it would have been without the defects.
Following deliberations, the jury returned a verdict in favor of the DiLauras.
The jury awarded the DiLauras $55,000.00 in damages.
The Goheens now appeal, claiming as follows: (1) the circuit court should
have limited the maximum damages available to be awarded by placing a cap in the jury
instructions; (2) the circuit court erred by allowing expert testimony to remain in the
record when the expert witness could not state that his opinions were within a
reasonable degree of certainty; (3) the circuit court erred when it did not allow the
Goheens’ expert witnesses to testify; and (4) the circuit court erred in denying the
Goheens’ motion for a directed verdict.
II. ANALYSIS
A. CLAIM THAT CIRCUIT COURT SHOULD HAVE CAPPED DAMAGES
The Goheens first argue that the circuit court should have put language in
the jury instructions limiting the maximum amount of damages that the jury could award.
The Goheens claim that the jury instruction used in Ellison v. R & B Contracting, Inc., 32
S.W.3d 66 (Ky. 2000), should have been used in this case. However, Ellison was not a
defective construction case; rather, it was a case involving a trespass that resulted in
damage to land. Thus, the Goheens’ reliance on Ellison is misplaced.
We find the jury instruction in State Property & Buildings Comm’n of Dep’t
of Finance v. H. W. Miller Construction Co., 385 S.W.2d 211 (Ky. 1964), on point with
this case. State Property was a defective construction case in which the Court held
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“that in this state 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.”
State Property, 385 S.W.2d at 214. The Court stated:
As we construe the relationship between market value and
cost of remedying the defect, the latter becomes
unreasonable only (a) if it exceeds the difference between
the market value of the building as it should have been
constructed and its market value as actually constructed
(assuming the defective condition to be known), or (b) if it
amounts to more than is reasonably necessary in order to
bring the building into substantial conformity with the
contract.
In simple terms, the measure of damages is the amount that
is reasonably necessary in order to make the building
conform to the requirements of the contract, but in no event
to exceed the difference, if any, between its market value as
it should have been constructed and its market value as it
was actually constructed.
Id.
In the present case, the jury instruction concerning the amount of
damages to be awarded read, in pertinent part, as follows:
You will now determine from the evidence the difference
between the fair market value of the [DiLauras’] property with
the home as it should have been constructed and its fair
market value with the home as it actually was constructed,
and award the [DiLauras] either the amount of this difference
or the reasonable costs of remedying or correcting the
defects, whichever is the lesser amount. However, if you are
further satisfied from the evidence that [the DiLauras] failed
to exercise ordinary care for the protection of [this] property
after learning of the defects to which it was exposed, and
that by reason of such failure on [the DiLauras’] part the
damage was greater than it would otherwise have been, you
will exclude from the amount of your award so much of [the
DiLauras’] damages as you believe from the evidence would
have been avoided by the exercise of such care.
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.
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The term “ordinary care” means such care as the jury would
expect an ordinary prudent person to exercise under similar
circumstances.
We find the jury instruction concerning damages in this case to be in
accord with the jury instruction utilized in State Property and, thus, proper. Additionally,
regarding the instructions’ lack of a cap on damages, the circuit court properly held that
such a cap should not be included in the instructions because the amount to be
awarded was a factual determination for the jury to make, based on the evidence
presented at trial.
The Goheens also contend that the circuit court should have included an
instruction regarding comparative fault. The DiLauras argue that this comparative fault
claim is waived because comparative fault is an affirmative defense “that must be
specifically pled in a responsive pleading.” However, comparative fault, or comparative
negligence as it is sometimes called, is not required to be pled in a responsive pleading.
Rather, it may be raised in “pleadings, briefs, tendered instructions, post-trial motions,
or the appeal itself, in order to be properly ‘preserved.’” Commonwealth Transportation
Cabinet v. Morrison, 715 S.W.2d 899, 901 (Ky. App. 1986). Thus, because the
Goheens asked the circuit court for a jury instruction on comparative fault, this issue is
not waived.
Turning to the merits of the comparative fault issue, “comparative
negligence . . . divide[s] the damages between the parties who are at fault. A finding of
fault involves an examination of the duties of each party and a determination of whether
those duties were breached.” Regenstreif v. Phelps, 142 S.W.3d 1, 4 (Ky. 2004)
(internal quotation marks and footnotes omitted).
Because this case is about the defective construction of the DiLauras’
house, and the DiLauras had no duty regarding the construction of their home, the
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DiLauras are not at “fault,” as that term is defined for purposes of comparative
negligence. Thus, the circuit court properly denied the request for a comparative
negligence jury instruction.
Furthermore, we note that to the extent the Goheens contend that the
DiLauras could have and should have prevented further damage to their home by
getting it repaired at an earlier date, the jury instruction regarding damages did allow the
jury to reduce the amount of damages awarded due to the DiLauras’ failure to mitigate
their damages. Moreover, it appears from the $55,000.00 awarded that the jury took
this failure to mitigate into consideration. Therefore, we find no error in the jury
instruction on damages.
B. CLAIM THAT THE CIRCUIT COURT ERRED BY ALLOWING JACK WILLIAMS’S
EXPERT TESTIMONY TO REMAIN IN THE RECORD
The Goheens next contend that the circuit court erred by allowing Jack
Williams’s expert testimony to remain in the record when Williams could not state that
his opinions were within a reasonable degree of certainty. We review a trial court’s
ruling regarding the admission or exclusion of evidence for an abuse of discretion. See
Clephas v. Garlock, Inc., 168 S.W.3d 389, 393 (Ky. App. 2004). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Id. (internal quotation marks omitted).
As an initial matter, we note that the Goheens did not object to Williams’s
qualifications as an expert. Therefore, any challenge to Williams’s qualifications is
waived. See Commonwealth v. Petrey, 945 S.W.2d 417, 419 (Ky. 1997).
The Goheens allege that Williams’s opinion was not certain enough to
qualify as an expert opinion. As previously noted, on cross-examination, Williams
testified that he was unable to inspect the entire roof of the house because it was
covered up when he was there and, thus, he could not say with any certainty that the
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roofing system had caused any defect with the house. This testimony was presented to
the jury, and Williams did not appear to allege that the home’s defects were caused by
the problems with the roof. Therefore, there was no error in admitting this testimony.
Williams attested that two piers in particular were a problem because they
had tilted, and he was able to testify with certainty that those piers had caused a defect
with the house. Furthermore, Williams testified that he could point with certainty to a
crack in a corner between the ceiling and the wall as a defect that resulted from the way
the house was constructed. Williams also attested that the safe spans for some of the
floor joists had been exceeded, and that it was not a matter of “if” they would fail, but
“when” they would fail. Based on this testimony, we find that the circuit court did not
abuse its discretion by allowing Williams’s testimony.
C. CLAIM THAT THE CIRCUIT COURT IMPROPERLY DISALLOWED THE
GOHEENS’ EXPERTS TO TESTIFY
The Goheens next assert that the circuit court erred when it did not permit
their expert witnesses to testify. During discovery, the DiLauras propounded
interrogatories to the Goheens, in which the DiLauras asked the Goheens to disclose
their expert witnesses, as well as the subject matter of those witnesses’ testimonies,
and “[t]he substance of facts and opinions to which the expert is expected to testify,” as
well as a “reasonable summary of grounds upon which each opinion is based.” The
Goheens responded by providing a list of expert witnesses and their addresses, and at
the bottom of this list, the Goheens stated as follows: “Each witness identified herein
shall testify as to the condition of the subject property based upon personal observation
and any defects and/or flaws that may have existed in the past or may exist presently,
and the probable cause thereof.”
Kentucky Rule of Civil Procedure 26.02(4), titled “Trial Preparation:
Experts,” provides, in pertinent part:
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Discovery of facts known and opinions held by experts,
otherwise discoverable under the provisions of paragraph (1)
of this rule and acquired or developed in anticipation of
litigation or for trial, may be obtained only as follows:
(a)(i) A party may through interrogatories
require any other party to identify each person
whom the other party expects to call as an
expert witness at trial, to state the subject
matter on which the expert is expected to
testify, and to state the substance of the facts
and opinions to which the expert is expected to
testify and a summary of the grounds for each
opinion.
This Court has held that
[a] generalized statement outlining a broad subject matter
about which an expert may testify does not sufficiently
apprise the other party of the information needed to prepare
for trial as contemplated and mandated by the notice
requirements of CR 26.02(4)(a). The discovery of the
substance of an expert witness’s expected testimony is
essential to trial preparation.
Clephas, 168 S.W.3d at 393.
In the present case, the Goheens provided a mere generalized statement
concerning the subject matter about which their experts may testify. The Goheens
failed “to state the substance of the facts and opinions to which the[ir] expert[s were]
expected to testify and a summary of the grounds for each opinion,” as required by CR
26.02. Therefore, the circuit court did not abuse its discretion when it disallowed the
Goheens’ experts to testify.
D. CLAIM THAT THE CIRCUIT COURT ERRED IN DENYING MOTION FOR A
DIRECTED VERDICT
The Goheens last contend that the circuit court erred in denying their
motion for a directed verdict concerning Karen Goheen. The Goheens argue that there
was no evidence showing that she was involved in the construction of the house.
On a motion for directed verdict, the trial judge must draw all
fair and reasonable inferences from the evidence in favor of
the party opposing the motion. When engaging in appellate
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review of a ruling on a motion for directed verdict, the
reviewing court must ascribe to the evidence all reasonable
inferences and deductions which support the claim of the
prevailing party. Once the issue is squarely presented to the
trial judge, who heard and considered the evidence, a
reviewing court cannot substitute its judgment for that of the
trial judge unless the trial judge is clearly erroneous.
Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998) (internal citations omitted).
In the present case, Karen Goheen signed the contract for construction of
the house at issue, and this case is about the defective construction of the house.
Therefore, the circuit court’s denial of the Goheens’ motion for a directed verdict was
not clearly erroneous.
E. CONCLUSION
Accordingly, the judgment of the Marshall Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brad Goheen
Benton, Kentucky
Jason F. Darnall
Benton, Kentucky
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