Bellagio Pools v. Marino

903 S.E.2d 295

BELLAGIO POOLS, LLC

v.MARINO et al.

A24A0220

Court of Appeals of Georgia.

June 14, 2024

Ashley Linn Hughes, Atlanta, for Appellant.

David J. Kolmel Esq., for Appellee.

McFadden, Presiding Judge.

Bellagio Pools, LLC brought this action for breach of contract and other claims against its customers, Jesus Marino and Erika Torres, seeking to recover money owed for a swimming pool that Bellagio Pools had installed on their property. Alleging that Bellagio Pools had performed substandard work, Marino and Torres counterclaimed for negligent construction, among other claims. After a bench trial, the trial court ruled that neither side was entitled to recover on any of their claims.

On appeal, Bellagio Pools argues that the trial court erred in ruling against it on its breach of contract claim. Because the trial court based that ruling on factual findings which are unsupported by the record, we reverse the judgment on that claim and remand the case for further proceedings.

Bellagio Pools also enumerates as error the trial court’s purported ruling that expert opinion testimony was not needed "to determine whether [Marino’s and Torres’] claim for negligent construction should be granted." But the trial court did not make any such ruling in connection with the negligent construction claim. In addition, the trial court’s judgment on that claim favored Bellagio Pools. So this claim of error does not provide a separate ground for reversal.

1. Facts and procedural history

[1–3] On an appeal from an entry of judgment following a bench trial, we apply a de novo standard of review to any questions of law decided by the trial court, but will defer to any factual findings made by that court if there is any evidence to sustain them. Nevertheless, if the trial court makes a finding of fact which is unsupported by the record, that finding cannot be upheld, and [usually] any judgment based upon such a finding must be reversed.

Emson Investment Properties v. JHJ Jodeco 65, 349 Ga. App. 644, 644-645, 824 S.E.2d 113 (2019) (citation and punctuation omitted). However, "a clearly erroneous factual finding does not always require reversing a trial court’s judgment[,]" such as "when the trial court’s ultimate legal conclusions are correct based on the evidence presented." Martin v. Fulton County Bd. of Registration & Elections, 307 Ga. 193, 226 (3) (c), 835 S.E.2d 245 (2019).

It is undisputed that the parties entered into a contract for Bellagio Pools to construct a pool for Marino and Torres, although the copy of the contract contained in the appellate record is illegible. Bellagio Pools later sued Marino and Torres, alleging that it had fully performed its obligations under the contract but Marino and Torres refused to pay an outstanding balance owed under it. Bellagio Pools also asserted claims for action on account, quantum meruit, and attorney fees, and it filed a materialman’s lien against the property.

In their answer, Marino and Torres alleged that Bellagio Pools had performed sub- standard work and "failed to perform certain obligations under the contract," and they asserted counterclaims for breach of contract, negligent construction, and slander of title.

The trial court stayed proceedings so that the parties could pursue resolution under Georgia’s Right to Repair Act, OCGA §§ 8-2-35 et seq., and Bellagio Pools offered to make five specific repairs to the pool, including fixing a gas leak. When Marino and Torres did not timely respond to the offer, the trial court ruled that the offer was "deemed accepted" under the Act, see OCGA § 8-2-38 (m), and ordered Marino and Torres to give Bellagio Pools access to make the five repairs.

At a subsequent bench trial, the parties disputed whether Bellagio Pools had successfully completed those repairs. As to the gas leak, Bellagio Pools’ owner, Joe Martinez, testified that it appeared "a rodent had bitten the cables that operate the system," that the wires were "cut up," and that "the tape that was in the line [had] ripped…. " He stated that Bellagio Pools repaired the leak by "just tying it up and that’s it. That’s all we needed." When asked, "[a]ll you needed to do was just put a piece of electrical tape around it," Martinez replied, "Uh-huh. Not electrical tape. Teflon tape." Torres testified that she was not present when Bellagio Pools repaired the gas leak and that "all [she] saw was … the tape that was put around the wires[,]" which did not fix the problem. No other witness testified.

The trial court ruled that neither side was entitled to recover on any of their claims or counterclaims. He found that Bellagio Pools had failed to fix the gas leak and that this constituted a breach of the parties’ contract that excused Marino and Torres from paying the amount still owed under it. Specifically as to Bellagio Pools’ breach-of-contract claim, the trial court held:

Plaintiff did not establish by a preponderance of the evidence that it is entitled to damages as against Defendants on its breach of contract claim. Defendants established that Plaintiff breached the parties’ contract by correcting a leak in a gas line with duct tape. The Court, as finder-of-fact, does not need expert testimony to determine that fixing a gas leak with duct tape is substandard in new construction, constituting ordinary negligence.

Despite concluding that Bellagio Pools had breached the contract in this manner, the trial court ruled against Marino and Torres on their breach-of-contract counterclaim on the ground that they had not proved damages. The trial court made no findings of fact about any of the other claims of substandard work asserted by Marino and Torres or about any of the other repairs performed by Bellagio Pools.

2. Bellagio Pools’ breach-of-contract claim

Two of Bellagio Pools’ three enumerations of error challenge the trial court’s judgment against it on its claim for breach of contract. As detailed above, that judgment rested on the trial court’s finding that Bellagio Pools itself had "breached the parties’ contract by correcting a leak in a gas line with duct tape," which the...