Section 14 Remedies

• Library: Consumer Law and Practice 2010

A homeowner does not have to permit the contractor to cure problems with the work unless the home improvement contract provides for cure.See Dynacon Builders v. Janowitz, 892 S.W.2d 807 (Mo. App. W.D. 1995); Miller v. Bakken, 978 S.W.2d 518 (Mo. App. W.D. 1998). But a homeowner who prevents the contractor from completing the work on a construction project has breached the contract. Erney v. Freeman, 84 S.W.3d 529, 535 (Mo. App. S.D. 2002). If a breach is not material, the nonbreaching party may not cancel the contract, but must pursue other remedies. Id.

When a contract is breached, the injured party is entitled to be placed in the position the injured party would have been in had the contract been performed. Williams v. Hubbard, 789 S.W.2d 810, 812 (Mo. App. W.D. 1990). The prevailing party is not entitled to a windfall. Farning v. Brendal, 150 S.W.3d 384 (Mo. App. W.D. 2004). The proper measure of damages for shoddy work or defective installation is the cost of repair or diminution in value. Id. One court upheld a verdict based on the lesser of the cost of repair or diminution in value.Gillham v. LaRue, 136 S.W.3d 852, 855 (Mo. App. S.D. 2004). If a court finds defective but substantial compliance, the consumer is entitled to have the recovery of the unpaid funds to the contractor reduced by the sum that would reasonably be required to remedy the defects and make the structure conform to the plans and specifications.Ken Cucchi Constr.,...