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John Evilsizor v. Calaveras Lumber Company

July 10, 2012

JOHN EVILSIZOR, PLAINTIFF AND APPELLANT,
v.
CALAVERAS LUMBER COMPANY, DEFENDANT AND RESPONDENT.



(Super. Ct. No. CV31420)

The opinion of the court was delivered by: Duarte , J.

Evilsizor v. Calaveras Lumber

Co. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff John Evilsizor hired contractor Scott Hunton to remove and replace his aging decks. Hunton installed "SmartDeck" decking, which proved defective. Plaintiff sued, alleging the defective material essentially tore apart the substructure of his decking, which he subsequently paid contractor Rick Lopes over $113,000 to completely rebuild. Hunton and US Plastic Lumber (US Plastic), the SmartDeck manufacturer, declared bankruptcy. An intermediate distributer, California Cascade (Cascade), settled on the eve of trial. The jury awarded plaintiff $6,275.82--the purchase price of the decking--against the local lumber company that sold it, defendant Calaveras Lumber Company.

On appeal, plaintiff heads eight contentions of error. Generally, plaintiff fails in his duty, as the appellant, to make coherent, developed prejudice arguments, and to view the evidence in the light favorable to the verdict.*fn1 As to the claims we address substantively, each lacks merit. Accordingly, we shall affirm the judgment.*fn2

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, a real estate broker since 1975, and manager and part owner of about a thousand apartment units, lived in Danville but also had a house in Arnold.*fn3 By 2002, the decking at the Arnold property was splintering. His son-in-law, Ken Vonderach, helped him get a bid from Hunton to do some "substructure" work and replace the front and rear decks, the staircases and "any of the existing redwood tread area that you'd be walking on," and plaintiff chose brown decking, to match the house. Plaintiff claimed defendant's "decking specialist" recommended SmartDeck over Trex brand. Plaintiff further claimed that Hunton began work on the deck at the end of 2003 or beginning of 2004.*fn4

When Hunton removed the old decking, he revealed "rotted or suspect" substructural components, which he replaced. Hunton did not replace the front deck; that was done by plaintiff and others in 2004, also with SmartDeck, most of which was bought from defendant in 2004.

When plaintiff first noticed problems with the decking, he suspected Hunton had not properly leveled the substructure, and although Hunton returned and made some minor adjustments, the problems grew, including discoloration and warping of the decking, with some boards cracking and popping up. By February 2005, plaintiff had sued Hunton. Later in 2005, plaintiff spoke with defendant's general manager, Eileen Hoover, who said defendant had had "isolated incidents" with brown SmartDeck, the manufacturer had gone bankrupt, and she would offer replacement decking if plaintiff paid the difference in price, but there was no offer to compensate for the labor or alleged substructural damage.

It was not until 2008 that Lopes began replacing the decking; plaintiff attributed the delay to "Lawyers and the court system." Lopes charged $113,065.44, which included substantial repairs to the substructure, but not pickets and railings and not replacing a staircase between deck levels. Plaintiff sought damages for lost use from 2004 to 2008 of $100 per month, as well as compensation for the amount he paid Lopes.

Lonnie Haughton was a construction and building codes consultant, and a licensed general contractor. He had extensive experience with decking. He had taken laboratory and online courses on wood identification and had published articles on wood construction products. He had experience with composite decking made of wood and plastic. The trial court allowed Haughton to testify as an expert on construction, code issues, installation issues, and "the thermal expansion of the SmartDeck product, and the effect of the expansion on Mr. Evilsizor's home."

Haughton inspected the decking on May 13, 2007. The front deck had some damage, "but nothing dramatic." The rear deck showed the "most dramatic decking failure I've ever seen." There were "some construction errors, but the magnitude of the decking failure" was caused by the SmartDeck decking, which "was pushing and damaging" the railing and causing structural damage by expansion. Haughton opined SmartDeck was not approved for use in California. He also testified about a moisture experiment he conducted on some SmartDeck samples, over a period of months, confirming the product swelled "unnaturally wide" which he opined caused damage to the substructure, specifically by pulling beams apart, rotating a joist, and pulling a ledger off the wall, which meant the entire structure had loosened irreparably. Haughton summarized his opinion, stating "the cause of the movement and damage to the . . . substructure was swelling of SmartDeck boards due to water absorption."

Although Haughton opined certain construction errors by Hunton were "incidental," he also testified that one post was not properly supported, "a major construction error." Hunton did not properly use the "Shadoe Track" system for attaching the decking, the decking did not have "mid-span blocking," and joist hangers were missing. But Haughton believed the improper decking installation may have resulted in less structural damage, because when deck boards "popped" out, they relieved pressure. Haughton testified Hunton did not obtain a permit, and he installed three posts "into the dirt" in violation of code.*fn5 Had the decking been replaced earlier, less structural damage would have occurred. The front deck, built with materials purchased in 2004, did not have the same "deformities" as the rear deck. The deck Lopes built was superior, in that it was "engineered" and used pressure-treated wood for the substructure and clear heart redwood.

Lopes testified he had been a general contractor for 16 years and had been a union carpenter for 17 years before then, having grown up in the construction business. He had been building residential decks for 30 years. He inspected the decking in July 2007, but it was not until he removed the decking that he could see the substructural damage, which included joists pulled away from the ledger, and the ledger pulled away from the wall, which "amazed" Lopes. This required a complete rebuild, which was done with clear heart redwood, which is more expensive than composite decking, and with pressure-treated lumber, some in larger sizes and in different places than previously. Further, the job had to be engineered, and required a building permit. The result was a larger deck, but it lacked two sets of stairs. Contrary to plaintiff's testimony, Lopes testified he also replaced the front deck.

Gregory Cole, a construction consultant and estimator who worked for the same company as Haughton, testified that he reached an estimate of $95,324, lower than Lopes' estimate, but he explained that Lopes had to stop work and rebid once he tore the decking off, including obtaining engineered plans, and that increased Lopes's charges, which were reasonable. Cole had never been to the property, but relied on photographs, a video, and the depositions of two contractors who also provided estimates. The lifespan of the deck Lopes built would be 20 to 30 years.

Richard Rose, one of Cascade's owners, testified defendant was Cascade's largest purchaser of SmartDeck. In August 2002, defendant sent back a load of brown SmartDeck, and the paperwork indicated "poor quality" as the reason, and there were sporadic claims about a color variation, until Cascade stopped carrying it in May 2003, due to numerous complaints, and the decking was eventually recalled.

Eileen Hoover, defendant's general manager, testified that the brown SmartDeck had some color matching problems, but defendant did not learn it was a defective product until 2003. Two homeowners were offered replacement material and labor costs by the manufacturer, through Cascade, but the manufacturer went bankrupt in 2004. The decking would swell and split. Although Hoover knew of "isolated" problems with a new formula used to make the decking, she had been assured the manufacturer had changed back to the prior formula, and she had no reason to doubt that. She had heard the company had replaced hardwood in the formula with soft yellow pine, then switched back.

After Hunton reported a claim, Hoover and Michael Fullaway went to plaintiff's house on May 6, 2005. The front deck looked fine, but the rear deck revealed defective decking, to the point where it was unsafe. In a letter she sent on May 18, 2005, Hoover offered to replace the defective brown SmartDeck with gray SmartDeck, because brown SmartDeck was no longer available, or with the more-expensive Trex, if plaintiff would pay the difference in cost, and she proposed to credit plaintiff $6,275.82. The offer included deck screws and a disposal fee for the old material, but did not cover labor costs, because the manufacturer had filed bankruptcy.*fn6 This was the same offer defendant made to other customers. Hoover also advised Hunton to see if his insurance would cover the labor, but Hunton declared bankruptcy.

Fullaway, the owner and son of defendant's founder, heard about color match problems with SmartDeck in 2002, but did not hear of more serious problems until spring or summer of 2003, which began as reports of minor cracking. About 30 to 35 claims were made. Plaintiff's deck was different: "I have never seen a deck like Mr. Evilsizor's. Most people called and said the color's a little off, there's minor cracking, there's a little bit of swelling in some places. We went out to the deck and said okay, got a bad decking, we'll fix it. I've never seen anything like that. Nobody left a deck to this extent." He did not see the deck until May 2005, after Hunton called about it. The front deck was fine. In part, the problem with the rear deck was deficient construction by Hunton. Defendant did not employ a "decking specialist."*fn7 As a local company, defendant would never knowingly sell defective goods, and did not do so in this case. Lopes had told Fullaway the SmartDeck had not caused plaintiff's structural damage.

A videotape of Hunton's deposition was played for the jury. In part, Hunton stated he had recommended SmartDeck to Evilsizor. He, too, had never seen decking fail so dramatically, "it almost looked like a bad piece of fruit where it had just swollen and ruptured."*fn8

Alan Phillips, a construction defect expert and licensed general contractor, inspected the deck in July 2007 and February 2008. The rear decking failed, but not in a way that damaged the substructure, and Hunton had not installed the decking correctly. Although decking was "pulling away from the deck, [it] is not pulling the deck assembly with it. This condition was there prior to any decking being installed and, in fact, was an attempt by the original contractor to try and shore up that condition prior to installing the decking." Rolled or twisted joists were not caused by the decking, but probably due to the lack of rim joists and lack of mid-span blocking, which would have kept everything "stable." The front deck had loose boards that had been installed incorrectly, but "the material didn't seem to fail anywhere near the same way as the decking material on the rear deck." The deck had been installed originally 20 or 30 years before, and Hunton did not properly address parts that had deteriorated over that time. Phillips' estimate for the rear deck was $18,741.

The jury was instructed on negligence, products liability, implied warranty, and false representations and concealment. In an interrogative verdict,*fn9 the jury found plaintiff and Hunton had been negligent, plaintiff did not buy the decking (impliedly finding that Hunton bought it), and defendant did not make any false or negligent representations or conceal information causing plaintiff harm. The general verdict awarded plaintiff $6,275.82. The 12-member jury was polled as to the general verdict, and the vote was unanimous.*fn10

DISCUSSION

I

Expert Witness Rulings

Plaintiff contends the trial court improperly reversed itself on an in limine ruling and excluded testimony by Haughton about the nature of the defect, when it first manifested itself, ...


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