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2008-UP-027 - Bob Brandi Stations v. Q.L. Evans Construction Co.

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Bob Brandi Stations, Inc. and R.E., Inc., Respondents,

v.

Q.L. Evans Construction Co., Lanier Construction Co., Palmetto Construction Co. and Mike Haas, Defendants,

Of Whom Q.L. Evans Construction Co. is the Appellant.


Appeal From Lexington County
 Larry R. Patterson, Circuit Court Judge


Unpublished Opinion No.  2008-UP-027
Submitted January 2, 2008 – Filed January 10, 2008  


AFFIRMED


Brian Carroll Gambrell, of Columbia, for Appellant.

S. Jahue Moore, Jr., and James Edward Bradley, both of West Columbia, for Respondents.

PER CURIAM:  Appellant, Q.L. Evans Construction Company, appeals the trial court’s refusal to reduce the judgment amount due to an alleged failure on the part of Respondents to mitigate their damages.  We affirm.[1]

FACTS

Bob Brandi owns both of the Respondent companies.  Bob Brandi Stations, Inc., operates convenience stores on land and in stores owned by R.E. Stations, Inc..  In 1995, Respondents contracted with Mike Hass and his company, Palmetto Construction Company, to serve as general contractor for the construction of a convenience store.  Haas had functioned as general contractor on several other similar projects for Respondents.   The contract between Respondents and Haas required Haas to supervise the project and to provide a “turn key” finished product.  Haas contracted with Appellant to install and finish concrete driveway areas as part of the project.  Construction of the convenience store began in 1996.

When Appellant’s owner, Evans, arrived at the construction site to start work, he found the soil at the site had not been properly compacted and was too soft.  Evans informed Haas of the problem with the soil and warned him that the concrete would likely fail if installed.[2]  Haas instructed Evans to install the concrete despite the inadequately compacted soil.  Neither Haas nor Evans informed Respondents of the compaction problem.    

The finished concrete surface began showing signs of a major failure in 2000.  Respondents informed Haas of the failure.  Haas blamed the failure on the sealant which had been applied to the concrete and promised to contact a representative from the sealant’s manufacturer.  This never occurred.  Instead, Haas “dropped the ball” by doing nothing to remedy the problems.  Upon realizing the problems with the concrete would not be corrected, Respondents hired a contractor to remedy the problems and initiated this action in 2001. 

This matter came before the trial court for a non-jury trial on January 19, 2006.  By order dated March 16, 2006, the trial court granted judgment for the Respondents against Q.L. Evans; Q.L. Evans Construction Company; Mike Hass; and Palmetto Construction Company jointly and severely in the amount of $154,299.15, which represented the $151,803.36 Respondents spent to repair and replace the concrete and $2,495.79 in lost profits due to business interruptions.  The trial court, in its order, specifically found: “As the soil under the concrete was improperly compacted there is nothing [Respondents] could have done to prevent failure other than to replace the concrete which they did.”  Appellant then filed a motion pursuant Rule 59, SCRCP, based on the failure of the trial court to reduce judgment on behalf of Respondents for failing to mitigate their damages.  The trial court denied this motion and reiterated the fact that Respondents “could not have done anything reasonable to mitigate damages.”  This appeal follows.

STANDARD OF REVIEW

The reasonableness of actions to mitigate damages is ordinarily a question for the finder of fact.  McClary v. Massey Ferguson, Inc., 291 S.C. 506, 511, 354 S.E.2d 405, 408 (Ct. App. 1987).

In an action at law, on appeal of a case tried without a jury, the findings of fact of the judge will not be disturbed upon appeal unless found to be without evidence which reasonably supports the judge’s findings. The rule is the same whether the judge’s findings are made with or without, a reference. The judge’s findings are equivalent to a jury’s findings in a law action.

 Townes Associates, Ltd. v. City of Greenville,  266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976) (citing Chapman v. Allstate Ins. Co., 263 S.C. 565, 211 S.E.2d 876 (1974)).  “In a law case tried without a jury, questions regarding the credibility and the weight of evidence are exclusively for the trial judge.”  Wayne Smith Const. Co., Inc. v. Wolman, Duberstein, and Thompson, 294 S.C. 140, 146, 363 S.E.2d 115, 118 (Ct. App. 1987).   

LAW/ANALYSIS

Appellant argues the trial courted erred by refusing to reduce the judgment amount due to an alleged failure on the part of Respondents to mitigate their damages.  We find no error in the trial court’s ruling on this issue.

“A party injured by the acts of another is required to do those things a person of ordinary prudence would do under the circumstances to mitigate damages; however, the law does not require unreasonable exertion or substantial expense for this to be accomplished.”  Genovese v. Bergeron, 327 S.C. 567, 572, 490 S.E.2d 608, 611 (Ct. App. 1997).  Furthermore, “the law does not require him to unreasonably exert himself or to incur substantial expense to avoid damages.”  Tri-Continental Leasing Corp. v. Stevens, Stevens & Thomas, P.A., 287 S.C. 338, 342, 338 S.E.2d 343, 346 (Ct. App. 1985).  “The party who claims damages should have been minimized has the burden of proving they could reasonably have been avoided or reduced.”  Id.

Appellant argues a reduction was required because Respondent’s witnesses testified that delay between discovery of the problems and remedial action worsened the damage and that Appellant offered to fix problems in 2000 for “a price which was more than $110,000 less than what the Respondent ultimately paid.”  Appellant testified that the problems with the concrete were caused by the defective soil conditions and that only way to fix the problem would be to take the original concrete up and replace it.  Appellant also testified that in July of 2000, before the condition of the concrete worsened to its present state, he offered to fix the concrete for $45,000.00.  This is the only reference in the record to a specific amount the mitigation would have cost Respondents.   In response to questions from the trial court regarding this figure, Appellant stated the figure only included replacing the concrete which was damaged at the time of his inspection in 2000 and additional damage could still have occurred even if Respondent had utilized the services he offered at that time.  Considering this testimony and the fact that Appellant bore the burden of showing Respondents failed to mitigate their damages, we find no error in the trial court’s ruling on this issue.

CONCLUSION

For the reasons stated above, the order of the trial court is

AFFIRMED.

ANDERSON, SHORT, and WILLIAMS JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Installing concrete over soft soil typically results in severe cracking in the finished concrete surface.