One Bluff Drive, LLC v. K.A.P., Inc.

330 Ga.App. 45

766 S.E.2d 508

ONE BLUFF DRIVE, LLC et al.

v.K.A.P., INC.

No. A14A1165.

Court of Appeals of Georgia.

Nov. 21, 2014.

McCorkle & Johnson, Mathew M. McCoy, Savannah, Catherine M. Bolger, Tawny Danielle Mack, for appellant.

Malcolm Mackenzie III, Savannah, Winer, Shearouse, Weitz, Greenberg & Shawe, George Parsons Milmine II, for appellee.

Opinion

BRANCH, Judge.

A jury returned an award of $400,000 to a contractor on its claims against certain homeowners for failure to pay the contractor in full for a major house renovation; the jury also awarded $112,221 of attorney fees for bad faith, stubborn litigiousness or causing the contractor unnecessary trouble and expense. Following the denial of the homeowners' motion for new trial, the homeowners appeal. The homeowners do not challenge the sufficiency of the evidence. Instead, they contend the trial court erred by charging the jury on quantum meruit and by denying their two motions that attempted to limit the contractor's possible damages. For the reasons stated below, we affirm.

On appeal following a jury verdict and judgment, this Court “must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.” Harris v. Tutt, 306 Ga.App. 377, 378(1), 702 S.E.2d 707 (2010) (citation and punctuation omitted).

So construed, the evidence presented at trial relevant to the claims on appeal shows that in 2006, K.A.P., Inc. (“KAP”), a general contractor, through its owner/president, John Kicklighter, entered into an agreement with One Bluff Drive, LLC and its sole member, Kenneth R. Hardigan, to supervise the construction of improvements to the bottom floor of Hardigan's residence located at 1 Bluff Drive in Savannah. After KAP commenced work, Hardigan fired the architect, hired a replacement, and significantly revised the scope of the project, including adding the second floor to the scope. In response, KAP prepared a two-page, “Main Summary Base Bid” showing a $1,092,943 estimated cost to complete the project as of September 5, 2007; the detail supporting documents were attached thereto.

The Base Bid document is a table of values for the different aspects of the project; it does not contain any contractual provisions or a projected completion date. It was an estimate based on information that was limited at the time because Hardigan had changed architects and the second architect had yet to prepare specifications or a schedule for completion. KAP presented the Base Bid to Hardigan that evening, and the parties added a “ contingency” of $107,057 to bring the total estimate to $1.2 million; it was understood, however, that any changes to the scope of the project reflected in the Base Bid would change the cost of the project. Thus, Kicklighter testified, the project was to be billed on a time and materials basis. In meetings with representatives of KAP, Hardigan acknowledged that he understood the nature of the Base Bid. The Base Bid also reflects that KAP chose not to charge for any overhead or profit; Kicklighter testified that he did so because of his friendship with Hardigan and because the two had worked together on several other projects. The following day, KAP delivered a letter to Hardigan that referenced their meeting on the prior evening “with regards to the budget number we met about last night.” The letter continued, “The 1.2 million budget (worked on a time and material basis) for KAP was based upon the newly acquired renovation drawings from [the second architect].”

After work continued on the project, Hardigan increased the scope of the work “many times,” including changes that required ripping out work already performed. KAP presented evidence that because of additions and changes to the scope of the work, the total cost of time and materials for the project exceeded $1.5 million. Given that the parties stipulated that Hardigan ultimately paid KAP $1,102,479.30, KAP presented evidence that Hardigan owed KAP in excess of $459,000. At one point toward the end of the project, Hardigan contacted KAP and asked, “I need a number from you to complete this house. I don't know what the number is, but could you give me the number that it's going to take to finish this house?” Hardigan intended to borrow additional funds to complete the project based on that number. Based on the information available at that time, KAP projected the remaining costs to be $300,000, and Hardigan sought and obtained an additional loan of $350,000 but did not use it to pay KAP. KAP finished the project, obtained a certificate of occupancy, and submitted the final two invoices totaling $511,243 to Hardigan. Hardigan moved into the house and lived there for three years but never paid KAP the total amount due.

On September 29, 2009, KAP filed suit to foreclose on a lien it filed in May 2009. On December 28, 2010, the appellants moved for partial summary judgment, arguing that KAP's Base Bid represented a fixed-sum contract and, therefore, that the amount of damages KAP could recover was limited to the costs of the extras and changes beyond the scope of the original contract. On June 17, 2011, the trial court denied the motion, rejecting the argument that the parties entered into an agreement as to the maximum amount that could be charged for changes to the Base Bid. On November 14, 2011, the appellants moved in limine to prohibit KAP from introducing evidence of the total costs of the project. The trial court denied the motion. The case was tried before a jury in September 2013.

1. The appellants contend the trial court erred by charging the jury on the law of quantum meruit because KAP never raised a claim under that theory and that KAP was required to plead quantum meruit in a separate count. We hold that the appellants' arguments are baseless as a matter of fact and law.

“A trial court has a duty to charge the jury on the law applicable to issues which are supported by the evidence. If there is even slight evidence on a specific issue, it is not error for the court to charge the jury on the law related to that issue.” Jones v. Sperau, 275 Ga. 213, 214(2), 563 S.E.2d 863 (2002). “Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” Davis v. State, 269 Ga. 276, 279(3), 496 S.E.2d 699 (1998). We therefore review the issue de novo. See Jordan v. State, 322 Ga.App. 252, 256(4)(a), 744 S.E.2d 447 (2013).

The essential elements of a claim of quantum meruit are that the provider performed services valuable to the recipient that were requested by or knowingly accepted by the recipient, that the recipient's receipt of the services without compensating the provider would be unjust, and that the provider expected compensation at the time the services were performed. Hollifield v. Monte Vista Biblical Gardens, 251 Ga.App. 124, 128 –129(2)(a), 553 S.E.2d 662 (2001). See also OCGA § 9–2–7 (“Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.”). And, even if there is an express contract,

if services not contemplated by the original agreement become necessary to achieve the contractual objective and are rendered and accepted, the law implies and enforces performance of a promise to pay for such extra services.

Puritan Mills, Inc. v. Pickering Const. Co., 152 Ga.App. 309, 310(1), 262 S.E.2d 586 (1979) (citations omitted).

In its complaint, which does not contain specific counts, KAP alleged that it entered into a contract to supervise the construction of improvements to Hardigan's residence but that “[t]hroughout the duration of the project, [appellants] ordered several additional improvements and further extensive renovations to be made to the residence”; that appellants “altered the scope of the project”; that “additional labor was required to remove improvements [already] complete[d] or in progress as well as to rebuild according to [appellants'] newly modified designs”; and that “[appellants] also significantly increased the scope of the project.” The complaint also alleges that appellants “were fully aware of any and all changes to the estimates previously provided”; that appellants “approved the changes and agreed to any and all ensuing changes to the originally agreed-upon price”; and that KAP remained uncompensated for the “reasonable value of [its] work.”¹

The Civil Practice Act, which has been effective since September 1, 1967, “abolished ‘issue pleading,’ substituted in lieu thereof ‘notice pleading,’ authorized the pleading of conclusions, and directed that ‘all pleadings shall be so construed so as to do substantial justice.’ ” Nee v. State Farm Fire & Cas. Co., 142 Ga.App. 744, 745, 236 S.E.2d 880 (1977) (citation omitted). Thus, “a complaint is not required to set forth a cause of action, but need only set forth a claim for relief.” Oliver v. Irvin, 230 Ga. 248, 249(1), 196 S.E.2d 429 (1973). See also Webb v. Bank of America, N.A., 328 Ga.App. 62, 761 S.E.2d 485 (2014). Accordingly, it has been held under the CPA that even a two-paragraph complaint that alleged damages arising out of the provision of services but that “contain[ed] no claim for quantum meruit and no details outlining such a claim,” raised “a fair inference” of a claim of quantum meruit. Gosule v. Bestco, Inc., 227 Ga.App. 863, 866(2)(a), 490 S.E.2d 532 (1997). Likewise, a complaint that alleged

that on a given date “plaintiff at the request of the defendant ... performed certain work, labor and services and furnished certain steel materials” etc., and that by reason thereof “defendant agreed to and became obligated to pay plaintiff the sum of $32,507.49” [and] that $32,507.49 “was the reasonable worth and value of the services performed and material furnished,”

was sufficient to raise claims of both breach of contract...