CONSTRUCTION CONTRACTORS INVESTMENT CORP v. PRESTON (2020)

E.J.D. Construction Contractors & Investment Corp. (“E.J.D. Construction”) appeals from a final judgment entered in favor of Douglas Preston (“Preston”) and from an order denying its motion for new trial. We affirm.

In 2015, Preston contracted with E.J.D. Construction, a general contractor, to remodel parts of Preston's house and to build additions to the house. During the construction project, Preston's house and personal property sustained water damages. Thereafter, Preston terminated the contract. Preston filed the underlying action, alleging counts for breach of contract and negligence.

Prior to trial, E.J.D. Construction filed an objection to Preston's Exhibit 33, titled “Master Expenses & Water Damage List,” which presented a summary of Preston's claimed damages. On this list, Preston listed the damages as to the negligence count separately from the damages claimed under the breach of contract count. During trial, E.J.D. Construction renewed its objections which it had previously made to the introduction of Exhibit 33. The trial court overruled the objection.

The trial testimony viewed in the light most favorable to Preston reflects as follows: The contract stated that the construction project would be completed within 90 days, but it was not. In September 2015, rainwater entered the house. The damage was caused by E.J.D. Construction's failure to properly place a tarp on portions of the house that were under construction. Despite taking steps to mitigate damages, such as hiring a water remediation company, removing personal property into a storage facility, etc., Preston's real property, including areas not under construction, and personal property were damaged as a result of the water intrusion.

During Preston's testimony, he testified that on September 29, 2015, Giselle Ibanez of CSI Consulting inspected the house and issued an estimate and report, in which she opined that to bring the property to the condition it was in prior to the water intrusion would cost $146,409.61. In addition, over objection, during Preston's testimony, Exhibit 33 was introduced into evidence. Receipts and bank statements were also presented to show each item listed in Exhibit 33. Preston went over the summary, testifying as to the damages. Preston also testified that he was seeking damages totaling $458,408.92. According to Exhibit 33, Preston sought $342,527.22 for negligence damages, which included the $146,409.61 estimate prepared by Ibanez/CSI Consulting, and $82,142.70 for breach of contract damages.

E.J.D. Construction moved for a directed verdict, addressing, in part, certain damages listed in Exhibit 33 relating to the negligence count. The trial court granted the motion for directed verdict, in part, finding that certain claimed damages were not reasonable, foreseeable consequences of the alleged negligence. The trial court instructed Preston's counsel to make sure that those items were taken out of the Exhibit 33 being presented to the jury and to not present any argument to the jury regarding those items. The Master Expenses and Water Damage Exhibit 33 that was sent with the jury during deliberations had those items crossed out.

The jury returned a verdict in favor of Preston totaling $280,153.35 in damages—$193,321.47 for the negligence count and $86,831.88 for the breach of contract count. A final judgment was entered consistent with the jury's verdict.

E.J.D. Construction filed various motions, including a motion for new trial. All motions were denied. E.J.D. Construction's appeal followed.

E.J.D. Construction contends that the trial court abused its discretion by admitting Exhibit 33 into evidence pursuant to section 90.956. We disagree.

Section 90.956 provides as follows:

Summaries.—When it is not convenient to examine in court the contents of voluminous writings, recordings, or photographs, a party may present them in the form of a chart, summary, or calculation by calling a qualified witness. The party intending to use such a summary must give timely written notice of his or her intention to use the summary, proof of which shall be filed with the court, and shall make the summary and the originals or duplicates of the data from which the summary is compiled available for examination or copying, or both, by other parties at a reasonable time and place. A judge may order that they be produced in court.

In arguing that the trial court abused its discretion, E.J.D. Construction argues, among other things, that the summary presented an “unfair picture” and contained legal conclusions, expert opinions, and items unsupported by the documents. Exhibit 33 was a summary of the claimed damages prepared by Preston, which included CSI Consulting's estimate of $146,409.61. E.J.D. Construction appears to take issue with Preston dividing the claimed damages into two categories—negligence and breach of contract—which E.J.D. Construction argues is a legal conclusion. Preston's organization of the summary into two separate categories was for the purpose of organizing which damages pertained to each count. E.J.D. Construction also points to a description in the contract section of the summary referencing “uneven walls.” This portion of the summary merely explained that although E.J.D. Construction had performed the stucco work, the stucco work had to be performed once again because the original stucco work resulted in uneven walls. Thus, the summary does not paint an unfair picture.

Further, E.J.D. Construction argues that the summary contains incorrectly added expenses, pointing to the section of the summary labeled “Extended Living Expenses” under the negligence section of the summary. The total amount reflected on the summary is $3,848.80, but the total amount is in reality was $3,543.64. The difference between the two amounts stems from the trial court's ruling on Preston's motion for directed verdict where the trial court found that certain of the claimed items were not reasonable, foreseeable consequences of the alleged negligence. The trial court ordered Preston to make sure that those items were taken out of the summary the jury would take with it during deliberations. Those items were crossed out by hand, but the total amount was not updated. Prior to the jury receiving the revised summary, E.J.D. Construction did not argue that the total for “Extended Living Expenses” was not revised. Nonetheless, as the individual items were crossed out, the summary was, overall, accurate and not misleading. Finally, contrary to E.J.D. Construction's argument, the trial court did not abuse its discretion by finding that under section 90.403, the probative value of the summary was not substantially outweighed by the danger of undue prejudice. Accordingly, we conclude that the trial court did not abuse its discretion by allowing Preston to introduce the summary into evidence.

The remaining arguments raised by E.J.D. Construction do not merit discussion. Accordingly, we affirm.

Affirmed.

HENDON, J.