New Bellum Homes, Inc. v. Keith Giffin
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 98-CT-00417-SCT
NEW BELLUM HOMES, INC.
v.
KEITH AND BILLIE JEAN GIFFIN
ON WRIT OF CERTIORARI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH
APPEALED:
ATTORNEYS FOR
APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:
02/10/1998
HON. ROBERT LOUIS GOZA, JR.
RANKIN COUNTY CIRCUIT COURT
W. E. GORE, JR.
PAUL E. ROGERS
VERNON H. CHADWICK
CIVIL - CONTRACT
AFFIRMED IN PART;
REVERSED IN PART- 02/01/2001
2/23/2001; denied and opinion clarified at paragraph 10 5/17/2001
5/24/2001; recalled and modified 6/27/2002; amended mandate
issued 7/9/2002
EN BANC.
McRAE, PRESIDING JUSTICE, FOR THE COURT:
¶1. This is the case of the dream house that became a nightmare. The homebuilder and the homeowners
eventually raised numerous allegations of faulty workmanship and cost overruns against each other in the
Rankin County Circuit Court, the Court of Appeals, and now this Court. We granted certiorari as
requested by the homeowners Keith and Billie Jean Giffin to consider their objections to the decision of the
Court of Appeals. After due consideration we affirm the judgment of the Court of Appeals on all issues
except for the matter of the replacement of an allegedly faulty French drain. On that issue and all others, we
reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court in toto.
I.
¶2. The following statement of facts is taken from the opinion of the Court of Appeals in New Bellum
Homes, Inc. v. Giffin, No. 98-CA-00417-COA at ¶1-3 (Miss. Ct. App. April 11, 2000):
On August 21, 1994, New Bellum Homes, Inc. executed a written contract with Keith and Billie Jean
Giffin for the construction of a home on the reservoir in Rankin County, Mississippi, at an agreed
price of $309,000. On December 18, 1995, New Bellum filed a complaint against the Giffins claiming
$92,305 in actual damages for breach of contract, $100,000 in damages for impairment to its credit
rating as a result of the Giffins' wrongful withholding of funds from the last contractual draw, and
$500,000 in punitive damages, prejudgment interest and attorney's fees.
The Giffins filed a counterclaim charging New Bellum with numerous instances of breach of contract
and negligence, and seeking actual, itemized damages in the amount of $73,075, punitive damages in
the amount of $500,000, plus interest on their permanent construction loan for delay in completion of
the contract, prejudgment interest and attorney's fees.
A bench trial was held by agreement of the parties. The trial judge found that a balance of $60,850
was owed under the contract and that the Giffins were liable to New Bellum in the amount of $29,
658.70 for cost overruns, changes and extras, for a total of $90,508.70. The judge also found that
New Bellum was liable to the Giffins for credits in the amount of $10,384, claims in the amount of
$36,647.45, compensation for defective mortar joints and other brick problems in the amount of $22,
500 and interest paid on the construction loan in the amount of $4,938.08, for a total setoff of $74,
469.53. Final judgment in the amount of $16,039.17 was entered for New Bellum against the Giffins.
Specifically, the Giffins were awarded $12,895 for replacement of a French drain.
¶3. New Bellum Homes appealed. On direct appeal the Court of Appeals affirmed in part, reversed and
rendered in part, and reversed and remanded in part. On the matter of the French drain, the Court of
Appeals reversed and remanded
for a determination of whether, with the addition of wet wells and sump pumps, the drains installed by
New Bellum would have drained the water from beneath the house. If the determination is that proper
drainage would have been obtained, then New Bellum will not be liable for the replacement drains.
On the other hand, if the determination is that even with the addition of the sump pumps and wet
wells, the water would not have been drained, then New Bellum shall be liable for the replacement
costs of the drains but not the wet wells and sump pump. We arrive at this disposition because as
discussed below, we do not believe the evidence supports the trial judge's finding that under the
contract New Bellum was required to install sump pumps or whatever else was necessary to drain the
water from beneath the house. . . . The plans and specifications were prepared not by New Bellum
but by the Giffins. Under these circumstances, we conclude the trial judge manifestly erred in
interpreting the plans and specifications so broadly and liberally. Accordingly, we reverse and render
that portion of the trial judge's decision finding New Bellum liable for the cost of the wet wells and
sump pumps.
New Bellum Homes, Inc. v. Giffin, No. 98-CA-00417-COA at ¶28, 30 (Miss. Ct. App. April 11,
2000).
¶4. The appropriate standard of review may be found in Amerson v. State, 648 So.2d 58, 60 (Miss.
1994): "For review of the findings of a trial judge sitting without a jury, this Court will reverse 'only where
the findings of the trial judge are manifestly erroneous or clearly wrong.'" A judge sitting without a jury "has
sole authority for determining credibility of the witnesses." Rice Researchers, Inc. v. Hiter, 512 So.2d
1259, 1265 (Miss. 1987).
II.
¶5. Michael Burchfield installed a standard French drain at the Giffins' house. He did not install sump pumps
because he did not feel that this was necessary. Burchfield testified that the only time he ever saw water
under the Giffins' house was when it was raining before the house had its roof completed. He checked later
and did not see any water under the house. Burchfield testified that not long after he finished the drains
Bob's Pool Service came to the home at the Giffins' direction to install a pool and in the process dug up the
French drain with their backhoe and also damaged another part of it by backing over it with their concrete
truck. Burchfield and Leo Giurintano, part owner of New Bellum Homes, repaired the drain after this, and
Burchfield stated that it was working.
¶6. Paul Reed was hired by the Giffins to install a new French drain after New Bellum had completed its
work. Reed testified that the original drain was too shallow as it was installed at the dirt level of the crawl
space when it should have been installed at least six inches below that level. Reed stated that when he
checked the crawl space fifty percent of it was covered in standing water. In addition to, or as part of the
French drain system, Reed also installed wet wells for receipt of the drains' discharge. Reed defined a wet
well as a reservoir with an automatic sump pump in it, necessary where a lot does not have enough fall for a
drainage system dependent solely on gravity flow. The circuit court awarded to the Giffins the amount Reed
claimed as the cost of installing the new system, $12,895, finding that the original French drain never
worked properly.
¶7. The Court of Appeals reversed and remanded in part and rendered in part, finding that there was a
question as to whether the original French drain had ever worked properly and to what extent it was
damaged by Bob's Pool Service. The Court of Appeals found that either lack of depth and fall was not the
sole problem with New Bellum's drains or the wet well installed by Reed was unnecessary. The Court of
Appeals concluded that if water was under the house after the installation of New Bellum's drains, then it
was not caused solely by the allegedly improper installation. The Court of Appeals reversed and remanded
for a determination of whether, with the addition of wet wells and sump pumps, the drains installed by
New Bellum would have drained the water from beneath the house. If the determination is that proper
drainage would have been obtained, then New Bellum will not be liable for the replacement drains.
On the other hand, if the determination is that even with the addition of the sump pumps and well
wells, the water would not have been drained, then New Bellum shall be liable for the replacement
costs of the drains but not the wet wells and sump pump.
New Bellum at ¶ 28. The Court of Appeals based this conclusion in part on the finding that New Bellum
was not liable for the cost of the wet wells because the construction contract did not require a guarantee of
a dry surface under the house.
¶8. New Bellum maintained that the French drain was installed properly and was adequate for the job and
worked properly until Bob's Pool Service damaged it. Paul Reed testified that New Bellum's drain was not
properly installed and was inadequate anyway for that type of lot without the wet well to keep water out of
the crawl space. The Court of Appeals found that the following language in the construction contract was
incorrectly interpreted by the circuit court to require French drains plus wet wells: "Fill work will consist of
importing soil to low, water-holding level in middle of lot (from North to South) with topsoil of red sandclay - enough imported soil should be brought in such that the surface dirt under the house is not wet
(french drains under house should be placed to help drain this water away)"
¶9. The Giffins argue that the Court of Appeals erred in reversing on this issue, stating instead that it should
have affirmed based on Grady v. Walls, 755 So.2d 533, 536 (Miss. Ct. App. 1999), which states that
"the right to recovery is not precluded by uncertainty regarding exact amount of damages." We find that
there was substantial evidence before the circuit court which supported the finding that the drainage system
installed by Paul Reed was necessary to provide proper drainage for this house on this kind of lot. That
New Bellum, the builder, did not recognize this or explicitly place it in the contract in greater detail does not
shield it from liability. The judgment of the Court of Appeals on the issue of the French drain is reversed,
and the judgment of the Rankin County Circuit Court on this sole issue is reinstated. The judgment of the
Court of Appeals is in all other aspects affirmed, and the judgment of the trial court is reinstated in toto.
¶10. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED EXCEPT AS TO THE
DRAINAGE ISSUE WHICH IS REVERSED AND THE JUDGMENT OF THE RANKIN
COUNTY CIRCUIT COURT IS REINSTATED.
PITTMAN, C.J., BANKS, P.J., SMITH, MILLS, DIAZ AND EASLEY, JJ.,CONCUR.
COBB, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WALLER, J., NOT
PARTICIPATING.
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