Source: http://stlrecord.com/, May 17, 2017
By: Sam Knef
A dispute between a homebuilder and engineering firm over who was to blame for a newly constructed home being condemned shortly after the owners moved in has been decided by the Missouri Court of Appeals Eastern District.
In a decision handed down May 9, the appeals panel upheld a St. Charles County Circuit jury verdict holding C.B. Engineering Inc. of Union responsible for the condition of the Lake St. Louis home at 115 Place de Yeager because it failed to test the compaction rate of at least one layer of fill below grade upon which the home’s foundation was laid. The $615,000 home slid down the rear slope of the property, according to court documents.
The engineering firm faced cross-claims brought by Beris Construction LLC of Wentzville, which discovered in litigation brought by homeowners Carl and Jessica Eisenmann that, even though C.B. Engineering provided a certification letter to the city’s building department indicating testing was completed and ensuring the bearing capacity of the subgrade, it actually did not test or observe a layer of soil between 6 feet and 7 feet below grade.
According to the ruling, the certification letter stated that “the materials placed under observation met or exceeded the minimum compaction requirements and are suitable for support of the residential construction.”
Three months before the Eisenmanns were to close on the house, they had noticed cracking and leaking in the basement. As a result, the builder had a retaining wall installed, the ruling states.
The ruling also says that the engineer who was consulted for the retaining wall had not been aware of any problems related to slope failure when he was asked to design and install it, and he therefore did not perform any additional soil stability or global stability analysis of the area.
Later, the Eisenmanns observed more cracks, and those were sealed, the ruling states. The prospective buyers demanded an additional warranty addressing settling and cracking of the foundation, which they received shortly after closing on the house on June 22, 2012.
“On October 5, 2012, Plaintiffs’ home was condemned by the City, as it was determined the house was unsound and no longer suitable for habitation,” the ruling states.
The following month, the Eisenmanns sued Beris Construction and its principal Richard Podhorn. Those claims were settled a few days before trial for $515,000. Beris also settled its cross-claims against subcontractors for a total of $80,000.
In the subsequent cross-claims trial, jurors awarded $51,500 to Beris, finding C.B. Engineering professionally negligent.
While judges on the appeals panel, Robert Clayton III, Mary Hoff and Lisa Page, affirmed the trial court’s decision by Circuit Judge Nancy Schneider in most respects, it found she erred in allowing a jury instruction that provided for the subtraction of any damages from Beris’s total award if the jury found the Eisenmanns failed to mitigate their damages, “and in accepting the inconsistent verdicts that resulted.”
The appeals court found that allowing that jury instruction prejudiced Beris.
It “confused the jury and misdirected it to consider Plaintiffs’ failure to mitigate their damages in determining Respondent’s damages,” the ruling states. “Although neither party objected to the verdicts as being inconsistent and thus could not raise that issue on appeal, we find the verdicts – by awarding Respondent $51,500 (only 10% of its $515,000 settlement with Plaintiffs) but finding Appellant 100% at fault for Respondent’s injury – are inconsistent as they cannot reasonably be construed as a definite finding in favor of either party.”