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08/18/95 CHARLIE MCGEE AND SALLY A. JONES MCGEE v.

August 18, 1995

CHARLIE MCGEE AND SALLY A. JONES MCGEE
v.
HERBERT CLARK, SR.



Appeal from Marengo Circuit Court. (CV-93-110). Eddie Hardaway, Jr., TRIAL JUDGE.

Released for Publication February 20, 1996.

Wright, Retired Appellate Judge. All the Judges concur.

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

Herbert Clark, Sr., filed a complaint against Mr. and Mrs. Charlie McGee, requesting that he be awarded $26,370.59. That amount was the alleged last payment owed to Clark for his efforts in constructing the McGees' new home. The McGees counterclaimed, asserting that Clark breached the construction contract. Following a jury trial, a verdict was returned in favor of Clark in the amount of $31,400. The McGees filed a "Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for New Trial," asserting that the verdict was excessive and was not supported by the evidence. The trial court denied the motion. The McGees appeal.

The sole issue on appeal is whether the trial court erred in denying the McGees' post-judgment motion based on the excessiveness of the jury's verdict.

In October 1992 the McGees hired Clark, a general contractor, to construct a new home. The construction contract provided that in exchange for the construction of the home, the McGees would pay Clark the sum of $90,690.79. This amount was to be paid in four installments, as the work progressed. The last installment was to be $22,672.

Clark began construction of the home in February 1993. During construction, Clark deviated from the blueprints and the specifications provided by the McGees. Some of the deviations were at the request of the McGees, while others were allegedly made without their knowledge. As a result of the deviations and the McGees' dissatisfaction with Clark's work, the McGees withheld the final installment payment of $22,672.

Clark testified that in addition to the last installment, the McGees also owed him $9,131.92. That amount included $5,395.33 for vinyl siding and $3,736.59 for additional labor and materials used to satisfy the McGees' requested deviations. The jury's verdict conformed to Clark's accounting.

The McGees assert that the verdict was excessive. They insist that the jury erroneously considered the cost of the vinyl siding in computing the award and that the jury failed to consider a $6,233 credit owed to them under the terms of the contract.

"The party claiming damages has the burden of establishing the existence of and amount of those damages by competent evidence. The award of damages cannot be made upon speculation, and the plaintiff has the burden of offering evidence tending to show to the required degree, the amount of damages allegedly suffered."

Johnson v. Harrison, 404 So. 2d 337, 340 (Ala. 1981) (citations omitted).

The evidence concerning whether the cost of the vinyl siding was included in the contract price was disputed. The McGees insisted that the cost of the siding was included in the contract price. Clark testified that the McGees' decision to use vinyl siding was a deviation from the original contract. His specifications provided that wood siding was to be used. The wood siding was in place prior to the time that the McGees requested that vinyl siding be used.

The jury found that the cost of the vinyl siding was not included in the contract price, but was an additional amount owed by the McGees. Due to the conflicting nature of the evidence, we will not substitute our judgment for that of ...


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