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FLOM v. STAHLY9/17/1997
[569 NW2d Page 137]
This controversy revolves around alleged defects in a Plymouth County house sold by defendants Thomas L. Stahly and Kathleen E. Stahly to plaintiffs Douglas E. Flom and Linda A. Flom.
In defendants' appeal we must determine whether, in a judgment awarding damages to plaintiffs for defendants' alleged breach of express warranty, the district court erred in: (1) finding a breach of express warranty in connection with defendants' sale of real estate to plaintiffs; (2) finding that the alleged breach proximately caused the damages alleged by plaintiffs; (3) concluding that the comparative fault doctrine did not apply in this situation; and (4) finding plaintiffs proved the amount of damages.
We also must decide, on plaintiffs' cross-appeal, whether the court erred in: (1) failing to apply the theory of implied warranty; (2) precluding testimony of a witness for plaintiffs; and (3) refusing to award prefiling interest.
We conclude that the district court committed no reversible error and thus affirm its judgment.
I. Background facts and proceedings. In 1981 Thomas Stahly, a physician, began constructing a large southwestern-style adobe home on an eighty-acre parcel of land he and his wife, Kathleen, had purchased in 1979. The Stahlys planned to live in the house with their five children. Although Dr. Stahly had an interest in southwestern-style architecture and had read extensively on the subject, he had no previous construction training or experience. According to Dr. Stahly, the construction of the house was his "new hobby" and an "experiment." Dr. Stahly did much of the construction himself but hired craftspeople and laborers for some of the work on the home. The Stahlys moved to West Virginia in 1982, before the house was completed, but returned to Plymouth County for a few weeks each year to continue working on the house. The house was otherwise unoccupied.
In April 1991, Douglas Flom, a Sioux City attorney, and his wife, Linda, saw a newspaper advertisement regarding the house and [569 NW2d Page 138]
became interested in the property. After the Floms made an initial visit to the house with a friend of the Stahlys, the Stahlys wrote to Floms and enclosed written materials about the house. These written materials described various aspects of the house and included the following statements regarding the exterior walls and heating system: "The whole outside wall is actually stuccoed double block walls" and " ound, graded insulated [heating] ducts were placed under the floors and 2 to 4 inches of concrete poured around these ducts when the floors were poured." The written materials indicated that the house was approximately 85% finished.
The Floms also visited the property several times while the Stahlys were present. Dr. Stahly walked through the house with Douglas Flom, pointing out certain features and describing some problems he had encountered during his construction of the house. Dr. Stahly gave the Floms numerous photographic slides which showed different stages of the construction.
In addition to their own visits, the Floms had eight or nine construction professionals inspect accessible areas of the house. As a result, the Stahlys subtracted $5,000 from the purchase price because of discovered electrical problems. Based on the opinions of the inspectors, the Floms estimated it would cost $75,000 — $100,000 to finish the house, although one inspector felt it would cost $250,000 to complete the project.
In May 1991 the Stahlys and Floms executed a written contract for the purchase by Floms of the home and 23 acres of land. The Floms received, and later exerc
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