COURT OF APPEALS DECISION DATED AND RELEASED June 6, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2407
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
HOPPE BUILDERS, INC.,
Plaintiff-Appellant,
v.
SHAUN L. MOERSFELDER,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Milwaukee County:
WILLIAM J. HAESE, Judge. Affirmed
in part; reversed in part.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Hoppe Builders, Inc., appeals from the trial court's
award of damages to Shaun L. Moersfelder in connection with the home Hoppe
Builders constructed for her. Hoppe
Builders argues that (1) Moersfelder did not establish a prima facie
case of negligence; (2) the trial court erred in awarding Moersfelder damages
contrary to the contract; (3) the trial court's award of damages for negligent
construction of the home was excessive and contrary to law; and (4) the trial
court's findings of fact are clearly erroneous. We affirm in part and reverse in part.
Hoppe Builders designed
and constructed a home for Moersfelder for a contract price of $86,861.[1] The parties also agreed on a statement of
extra charges and credits, with an additional balance due Hoppe Builders of
$3,563.44. At trial, Moersfelder still
owed Hoppe Builders $6,563.44, but she had terminated her business relationship
with the company because of complaints she had with the construction of her
home.
Hoppe Builders sued
Moersfelder for the balance due on the contract. Moersfelder filed a counterclaim for $11,000, alleging that Hoppe
Builders was negligent in several respects in constructing her home. The trial court awarded Hoppe Builders its
entire claim of $6,563.44, but it awarded Moersfelder a total of $19,643 on her
counterclaim. Hoppe Builders appeals.
Hoppe Builders presents
four issues for our review, and we address them seriatim.
A. Prima
facie case of negligence.
Hoppe Builders argues
that Moersfelder did not present any competent expert testimony controverting
the testimony of Gary Hoppe, who designed the home, and other witnesses stating
that the home was designed and built according to industry standards. Hoppe Builders contends, therefore, that she
has not presented a prima facie case of negligence.
“Negligence requires a
duty of care on the part of the defendant, a breach of that duty, and an injury
caused by the breach. Duty is the exercise
of reasonable care whenever it is foreseeable that one's conduct may cause harm
to another.” Kaltenbrun v. City
of Port Washington, 156 Wis.2d 634, 641, 457 N.W.2d 527, 529 (Ct. App.
1990) (citation omitted).
John Heisler, an
architect, testified as an expert for Moersfelder that the home was not built
according to industry standards in several respects, and that Hoppe Builders
breached its duty of care in constructing the home. Hoppe Builders did not object to that testimony, but now argues
that Heisler was applying the wrong standard of care—that of an architect and
not a designer.
Section
901.03, Stats., provides in
part:
(1)
Effect of erroneous ruling. Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party is
affected; and
(a) Objection. In case the ruling is one admitting evidence, a timely objection
or motion to strike appears of record, stating the specific ground of
objection, if the specific ground was not apparent from the context.
By
failing to object to Heisler's expert testimony in the trial court, Hoppe
Builders has thus waived any objection it had to the competency of Mr. Heisler
as an expert witness. Furthermore, how
much weight to give Mr. Heisler's expert testimony was a matter for the trial
court to consider. See State ex
rel. T.R.S. v. L.F.E., 125 Wis.2d 399, 401, 373 N.W.2d 55, 56 (Ct. App.
1985) (“The weight of the evidence is a matter solely for the factfinder, and
it is not the function of an appellate court to review such questions.”). Hoppe Builders does not challenge any other
element of Moersfelder's claim for negligence, and we conclude that Moersfelder
has made a prima facie case of negligence. See Kaltenbrun, 156 Wis.2d at 641, 457
N.W.2d at 529.
B.
Damages contrary to the contract.
Hoppe Builders contends that,
in two instances, the trial court awarded damages to Moersfelder for costs that
the contract specified would be borne by her.
We agree.
1. Insurance
proceeds.
While gravel was being
poured into the garage cavity area of the construction site, a garage wall
collapsed and had to be rebuilt.
Moersfelder made a claim for the damage to her insurance company. Her insurance company paid Hoppe Builders
the entire $1,600 directly, and Moersfelder suffered no out-of-pocket loss.[2] The trial court found that Hoppe Builders
was negligent in construction of the wall, and it ordered Hoppe Builders to
reimburse her $1,600 because she had paid the premiums for the insurance
coverage.
The contract between the
parties provided in part:
The Buyer shall, prior to commencement of the
work and until full payment is made to Builder, keep the building insured by
Contractors Multiple Perils all risk coverage against loss or damage by fire,
windstorm, and all other hazards, including vandalism, theft, and basement
collapse, naming the Builder as additional insured and loss payee....
(Emphasis
added.) The interpretation of a
contract is a question of law that we review de novo. Edwards v. Petrone, 160 Wis.2d
255, 258, 465 N.W.2d 847, 848 (Ct. App. 1990).
The contract
specifically provided that loss or damage by all other hazards were to be
covered by Moersfelder's insurance, with Hoppe Builders as a loss payee. The plain language of the contract did not
limit coverage for hazards only to basement collapse, but merely listed
that event as an example of a covered item.
The contract also provided that the cost of “excavation cave-in corrections”
would be borne by Moersfelder. The
insurance required by the contract was to cover just such a risk. Hoppe Builders, as loss payee, was entitled
to the proceeds as reimbursement to it for repairing the collapse. Thus, contrary to Moersfelder's argument,
the collateral source rule does not apply.
See W. G. Slugg Seed & Fertilizer, Inc. v. Paulsen
Lumber, Inc., 62 Wis.2d 220, 228, 214 N.W.2d 413, 417 (1974)
(subsequent collateral recovery by plaintiff will not reduce amount of
defendant's liability). We conclude
that the trial court erred in awarding Moersfelder damages of $1,600, equal to
the insurance payment to Hoppe Builders.
2. Basement
dry wall.
The house plans provided
that the basement of the home would be unfinished with five-eighths-inch
styrofoam insulation on the walls. When
Hoppe Builders applied for the building permit, the inspector required it to
use one-inch styrofoam on the exposed basement walls to meet the energy code. When the building inspector made his final
inspection of the basement, he required Moersfelder to cover that foam
insulation with dry wall. The trial
court found that the required dry wall was “occasioned by the use of an
efficient insulation system.
[Moersfelder] was unaware of the increase in cost, but does reap the
benefit of its installation.
[Moersfelder] should be awarded 50 percent of that cost, to wit, the sum
of $2,630.”
The contract between
Moersfelder and Hoppe Builders provided:
“Any changes, alterations, or extras from the plans or specifications,
which may be required by any public body or inspector, which increases costs,
shall constitute an extra and shall be paid by Buyer, and shall not require
written approval from Buyer.” As noted
above, we review the interpretation of a contract de novo. Petrone, 160 Wis.2d at 258,
465 N.W.2d at 848.
Moersfelder does not
dispute that building codes require the dry wall, but argues that Hoppe
Builders was negligent in its choice of basement insulation. Her expert testified that if Hoppe Builders
had used another type of insulation, the dry wall would not have been
required. However, Gary Hoppe's
testimony is undisputed that the building inspector required the thicker
insulation and then the dry wall over it.
Neither party argues that the costs associated with the dry wall were
not an “extra.” Under the terms of the
contract, Moersfelder must bear the cost of the dry wall mandated by the
building inspector, and we reverse the trial court's award of $2,630 to Moersfelder.[3]
C. Allegedly
excessive award for negligent construction.
Hoppe Builders argues
that the trial court's award of $19,643 in damages was “disproportional to
contract amount [sic] and there was no showing as to actual loss of
value to Moersfelder.”[4] Hoppe Builders does not, however, argue that
any specific portion of the award was excessive. An appellate court will not consider arguments “broadly stated
but never specifically argued.” Fritz
v. McGrath, 146 Wis.2d 681, 686, 431 N.W.2d 751, 753 (Ct. App. 1988). We decline to address this issue.
D. Trial
court's finding of fact as to plumbing location.
Hoppe Builders argues
that the trial court incorrectly awarded Moersfelder the cost of relocating
basement plumbing. The trial court
found: “[Hoppe Builders] did not locate plumbing according to contract and
plans, and in fact stated that it was not measured, resulting in an improperly
positioned bathroom. The cost of
relocation of said plumbing is in the sum of $2,870.”
In all actions tried upon the facts without a
jury or with an advisory jury, the court shall find the ultimate facts and
state separately its conclusions of law thereon.... Findings 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.
Rule 805.17(2), Stats. How much
weight to give testimony is a matter for the trial court to consider. See State ex rel. T.R.S., 125
Wis.2d at 401, 373 N.W.2d at 56. We
affirm on this issue.
Moersfelder testified
that the location of the basement plumbing was “at least 12 inches” off from
the location in the blueprints. She
testified that this error would make her bathroom shorter by twelve inches and
that “every time you'd open up the door it would hit against the
whirlpool.” Gary Hoppe explained:
“[T]here is no accurate measurements [sic] on the prints where each item
goes. There's dimensions [sic]
on there, but they're not accurate dimensions.
It's a future room.” When he was
asked whether the basement arrangement accurately reflected the plans, he
replied: “I don't know that because I
didn't measure all the total dimensions....
I never ever had an accurate measurement, it was a presumed
measurement.” Although Hoppe Builders
points out that Gary Hoppe did measure the plumbing placement and found it
adequate, it fails to note that this measurement occurred after the
plumbing was installed, after Moersfelder had expressed concerns to him about
the plumbing location.
The trial court's
finding indicates that it chose to credit Moersfelder's testimony more than
Gary Hoppe's, and it is not clearly erroneous.
Conclusion
We reverse the trial
court's award to Moersfelder of $1,600 for the garage wall collapse and $2,630
for dry wall installation. We affirm
the judgment of the trial court in all other respects.
By the Court.—Judgment
affirmed in part and reversed in part.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The parties later signed a note lending $15,000 of this amount to Moersfelder. At the time of trial, Moersfelder still owed $3,000 on this note.
[2] As Hoppe Builders points out, the trial court erred in finding that Moersfelder paid the insurance proceeds to Hoppe Builders.