It has been a while since I last posted here at Construction Law Musings. Life, law practice, and “blogger’s block” have taken their toll on the posting schedule. Hopefully this will be one of several upcoming posts now that the litigation schedule has lightened a bit over the summer.
Today’s post is about damages. Specifically damage to a homeowner’s roof and her legal damages therefor. That last is of course a sentence that only a construction attorney (or other litigator) could possibly craft and have it make sense. Now, on with the case. . .In Hardesty Construction, Inc. v. Weedon, the facts are as follows:
Ms. Weedon had hail damage to the roof of her home. She hired Hardesty Construction to repair and replace the roof. After the first roof was installed and failed inspection, a second roof was installed. The issue was that the first roof had a warranty and the second roof, installed similarly to the first (and allegedly with the same construction issues according to Ms. Weedon’s expert), was not provided with the promised warranty. As one may expect, Weedon sued Hardesty and Hardesty Construction for fraudulent inducement and breach of contract. At trial, Weedon testified, without objection, that her home was worth $40,000 less because of Hardesty Construction’s work, which was based partially on quotes Weedon received to fix the roof. The Circuit Court granted Hardesty Construction’s motion to strike Weedon’s fraudulent inducement claim, but not her other claims. A jury awarded Weedon $30,253.30 on her breach of contract claim. Hardesty Construction appealed, arguing the Circuit Court erred in (a) allowing the jury to consider Weedon’s valuation testimony because it was not based on her personal knowledge and (b) denying its motion to strike based on insufficient evidence as to damages. Weedon assigned cross-error in the Circuit Court’s decision to grant the motion to strike her fraudulent inducement claim against Samual Hardesty.
After a review of the record, the Virginia Court of Appeals affirmed the Circuit Court on all assignments of error before it. It held that Hardesty Construction had waived its hearsay/personal knowledge objection through its failure to object at the time of the testimony by Ms. Weedon, and that Ms. Weedon’s generalized testimony was enought for the jury to come up with a reduction in value of her home due to the faulty work and that her introduction of other contracts and evidence of this reduction was sufficient if not ideal. In doing so, the Court stated: “Proof with mathematical precision is not required, but there must be at least sufficient evidence to permit an intelligent and probable estimate of the amount of damage.” and concluded that Ms. Weedon had done just enough. Finally, the Court denied Ms. Weedon’s appeal of the Circuit Court’s grant of the motion to strike as to the fraudulent inducement claim because she failed to bring Samuel Hardesty into the appeal.
The takeaways? 1. Always preserve your objections and name the proper people in your appeals, and 2. While Ms. Weedon was able to use hearsay and some general damages evidence to win the day here, a better practice would be to have more direct and precise evidence of damages. Doing “just enough” can put you on shaky ground, much like you may dodge a default, but that does not make it a best practice. Litigation is expensive, be sure to use those expenses to put your best case forward.
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