MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 3/9/2017

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1 MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 3/9/2017 RYLEE v. PROGRESSIVE GULF INSURANCE CO., NO CA SCT Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Insurance - Loss of consortium claim - "Each person" policy limit HON. RICHARD W. McKENZIE JONES COUNTY CIRCUIT COURT CHUCK McRAE, SETH CLAYTON LITTLE, CHRISTOPHER ANTHONY BAMBACH CECIL MAISON HEIDELBERG, EDWARD C. TAYLOR, KRISTI ROGERS BROWN Justice Maxwell Affirmed. Facts: Analysis: Beth Rylee s husband, Richard Rylee, was injured in a motorcycle accident. After the Rylees received the full each person policy limit for damages resulting from Richard s bodily injury, the Rylees sued their two insurers. They claimed Beth was entitled to her own eachperson policy limit for her separate and distinct loss-of-consortium claim. The circuit court granted summary judgment to the two insurers. The Rylees appeal. The Rylees argue that the circuit court erred in ruling that Beth is not entitled to any additional payments from either insurer, because her loss-of-consortium claim was included in the each person policy limit already received. When the words of an insurance policy are plain and unambiguous, the Court will afford them their plain, ordinary meaning and will apply them as written. Here, both policies specify that policy limit for each person includes any person s claim based on one person s bodily injury. The each-person policy limit is based on the number of persons who suffer bodily injury in the accident, not the number of insureds making claims. Beth was not with Richard during the crash. Richard was the only person who sustained bodily injury in the accident. So Beth s loss-ofconsortium claim falls under the each-person policy limit for Richard s bodily injury. Because the Rylees have already received full policy limits for damages resulting from Richard s bodily injury, the circuit court properly dismissed both insurers on summary judgment. Page 1 of 8

2 SPORE v. STATE, NO CA SCT Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Direct criminal contempt - Miss.R.Prof.Cond Disrespectful conduct HON. JEFF WEILL, SR. HINDS COUNTY CIRCUIT COURT JEFFREY M. GRAVES, DENNIS C. SWEET, III OFFICE OF THE ATTORNEY GENERAL: JOSEPH SCOTT HEMLEBEN Chief Justice Waller Affirmed. Facts: Analysis: Judge Jeff Weill Sr. of the Hinds County Circuit Court held attorney Greg Spore in direct criminal contempt for displaying willful, contemptuous behavior that interfered with the orderly administration of justice. Spore appeals. At the probation revocation hearing, the trial judge asked Spore three different times whether he had finished making his argument. After the third time, Spore stated that he had. Judge Weill then stated that after I pronounce sentence I m not going to hear further argument. Following this exchange, Spore offered additional argument. When he completed this, the judge then asked a fourth time anything further? Spore responded, [n]o Your Honor. Despite multiple cautionary admonitions, Spore did what the judge warned him of, and what he agreed not to do, restarting his argument following the pronouncement of the sentence. The court tried to stop Spore at least five times. Despite these requests to stop arguing and to sit down, Spore continued to speak and did not sit down. It was at this point that the judge found Spore in direct criminal contempt of the court and fined him $100. Spore claimed he needed to make his record and zealously represent his client. However, behavior that tends to bring the court into disrepute or disrespect is criminal contempt. Spore s claim that he needed to make his record lacks merit, as he had ample opportunities to do so. Mississippi Rule of Professional Conduct 3.5 directs a lawyer not to engage in conduct intended to disrupt a tribunal. Spore s announced purpose of diligently representing his client does not excuse conduct that violates Rule 3.5. Spore failed to heed Judge Weill s requests and was clearly disrespectful before the court. DISSENT Justice Kitchens joined by Presiding Justice Dickinson and Justice King Page 2 of 8

3 GROUND CONTROL, LLC v. CAPSCO INDUSTRIES, INC., NO CA SCT Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Contract - Right to appeal - Quantum meruit damages - Law of the case doctrine - Dismissal of contractor - Sub-subcontractor - Joint and several liability - Jury verdict - Breach of contract damages - Section Void contract - Motion for remittitur - Section Pre-judgment interest - Post-judgment interest - Claims against individuals - Abuse of process HON. ROGER T. CLARK HARRISON COUNTY CIRCUIT COURT BLEWETT W. THOMAS RODERICK MARK ALEXANDER, JR., MATTHEW WARD McDADE Justice Maxwell DA: Affirmed; CA: Reversed and rendered in part, reversed and remanded in part. Facts: This case was previously before the Court on interlocutory appeal. In Ground Control, LLC v. Capsco Indus., Inc., 120 So. 3d 365 (Miss. 2013) (Ground Control I), the Court reversed in part. Because it was undisputed that neither sub-subcontractor Ground Control, LLC, (Ground Control) nor subcontractor Capsco Industries, Inc., (Capsco) both Alabama companies had a statutorily required certificate of responsibility to work in this State, the Court agreed that the subcontract was void. But the Court remanded the case to the trial court so Ground Control could pursue the nonbarred claims of unjust enrichment and quantum meruit. Despite the clear directive in Ground Control I, Ground Control immediately moved to supplement its complaint with claims against Capsco and its principal, Christopher Killion, based on equity-based and nonequity-based theories, such as contract, statutory rights, and tort. Operating under the assumption that its prior grant of summary judgment had been reversed in full, the trial court granted Ground Control s motion to supplement its complaint. Capsco responded with a third-party claim for fraud against Ground Control s principal, Frank Beaton. Beaton then asserted third-party counterclaims against Capsco and its officers for abuse of process, tortious interference with business relations, and repayment of a $75,000 construction loan, which Beaton had personally guaranteed. Before trial, several parties moved for summary judgment. Harrah s and Yates s motion was denied, as was Ground Control s. But Beaton s motion for summary judgment on the claims against him personally was granted. So the trial court dismissed Beaton as a third-party defendant. This left Killion as the only individual defendant. At the end of Ground Control s case-in-chief, Killion moved for a directed verdict in his favor individually. The trial court granted this motion, finding Ground Control had failed to present any evidence supporting its claim Killion was individually liable. The trial court also directed a verdict in Yates s and Harrah s favor on Ground Control s statutory-based claims, as well as its claim that it was a third-party beneficiary to the contract between Yates and Harrah s. At the end of trial, the jury found Ground Control was entitled to $862,228. And using the agreed-to form supplied to it, the jury apportioned 95.75% liability ($825,583.31) to Capsco, 4.25% liability ($36,644.69) to Yates, and 0% liability ($0) to Harrah s. Ground Control and Beaton appeal, and Capsco and Yates cross-appeal. Page 3 of 8

4 Analysis: Issue 1: Right to appeal Yates argues that Ground Control forfeited its right to appeal when it garnished $36, from Yates s bank account to satisfy Yates s portion of the judgment. However, when the plaintiff accepted money paid, he may still appeal, where the object of the appeal is simply to have a judgment modified by increasing his demand, as where sufficient damages had not been allowed, or where proper interest had not been allowed. Here, the object of Ground Control s appeal is a larger judgment and pre-judgment interest. So it still may appeal, despite accepting Yates s payment. But, it holds the funds subject to any judgment which is rendered on appeal or possible cross appeal. Issue 2: Quantum meruit damages Ground Control argues that the trial court erred by denying Ground Control a trial on its tort claims against Capsco and Killion that were pled in the Supplemental Complaint. However, Ground Control I was not a blanket reversal of the grants of summary judgment. In Ground Control I, the Court found Ground Control could proceed with its lawsuit under a claim for the value of what it expended in labor and supplies on the project. Despite this clear, narrow holding, the trial court initially proceeded post-remand as if its grants of summary judgment had been reversed in full. But before trial, the trial court properly recognized the limited scope of Ground Control I s mandate and granted Capsco s motion in limine, thereby dismissing the initially granted supplemental claims. The court permitted Ground Control to proceed solely on its claim that it was entitled to recover quantum meruit damages. Under the law-of-the-case doctrine, the trial court was bound to follow Ground Control I s mandate. In addition, the circuit court did not err in granting Harrah s and Yates s motion for a directed verdict on all but Ground Control s quantum meruit claim. Ground Control I s holding about the void subcontract impacted not only sub-subcontractor s claims against Capsco, but also against Yates and Harrah s. In addition, Ground Control s evidence against Yates and Harrah s was clearly lacking. Issue 3: Dismissal of contractor Yates argues that the court should have dismissed the contractor completely through summary judgment, directed verdict, or JNOV. A sub-subcontractor cannot sue on quantum meruit against a primary contractor for work done under an express contract with another person. Thus, Ground Control could not sue general contractor Yates for quantum meruit for work done under the voided (i.e., implied) contract with Capsco. Ground Control presented evidence Yates knew Ground Control was performing the services under the change orders with the reasonable expectation it would be paid for them. But Ground Control presented no evidence it reasonably expected Yates would be the one to pay Ground Control for these services. At trial, Beaton admitted Ground Control worked for Capsco and any payment for its services was going to come from Capsco. Even when viewing Ground Control s evidence favorably, it failed to support its claim that Yates was liable under quantum meruit, because it admitted its services were rendered under the reasonable expectation that they would be paid for by Capsco, and not the person sought to be charged, Yates. Therefore, Yates s motion for a directed verdict on the quantum meruit claim should have been granted. Consequently, Ground Control must repay Yates the $36, it seized prior to the outcome of this appeal. Also, Ground Control offered no testimony that Harrah s knew Ground Control was working on the project or that Ground Control expected Harrah s to pay for it. So the jury s finding of zero liability was not against the overwhelming weight of the Page 4 of 8

5 evidence. Issue 4: Joint and several liability Ground Control argues that the damages award should not have been apportioned between Capsco (95.75%) and Yates (4.25%). Instead, it argues that the jury intended Capsco, Yates, and Harrah s to be jointly and severally liable. This argument is waived, because Ground Control made no objection to the special verdict form during trial. In addition, it fails as a matter of law. A sub-subcontractor can recover only quantum meruit damages from the person to whom it reasonably looked for payment. So by instructing the jury to apportion liability based on who was reasonably expected to pay Ground Control, the trial court provided the jury with an accurate statement of the law. Issue 5: Jury verdict Capsco argues damages awarded to Ground Control should have been limited to restitution damages (the value of the labor and supplies expended on the project) and not expectation damages (what Ground Control would have earned if the subcontract had not been void). Capsco s contention that Ground Control was seeking breach-of-contract damages instead of quantum meruit damages is bolstered by Ground Control s own argument on appeal. In an effort to obtain pre-judgment interest, Ground Control insists its damages claim was liquidated and based on quasi-estoppel, not quantum meruit. However, this argument defies the mandate of Ground Control I, which specifically found that the applicable equitable doctrine for when a contract is void under section is quantum meruit or unjust enrichment, and not quasi-estoppel. Based on the evidence, no reasonable jury could have awarded $825, in quantum meruit damages against Capsco. The jury heard Beaton concede that, after subtracting the half-million dollars in payments Capsco had already tendered to his company, Ground Control s claim for unpaid labor and services was only $199,096. Thus, the jury had no evidentiary basis for finding Capsco liable for more than four times that amount, and the trial court abused its discretion when it denied Capsco s motion for remittitur. Section authorizes a trial court to grant a remittitur when the damages awarded were contrary to the overwhelming weight of credible evidence. On remand, Ground Control and Capsco have two options agree to a $626, remittitur, making the damage award against Capsco $199,096, or proceed to a new trial on quantum meruit damages against Capsco only. Issue 6: Pre-judgment interest Ground Control argues its damages claim was liquidated and based on breach of contract, not quantum meruit. However, the only damages available were for quantum meruit. Where as is the case here there is a bona fide dispute as to whether the plaintiff is entitled to a quantum meruit award and, if so, what amount, then pre-judgment interest is not warranted. Alternatively, Ground Control argues the post-judgment interest it was awarded did not start accruing early enough. Because the judgment was not based on a contract with a set interest rate, the trial court had discretion to set the rate of interest, as well as the date from which interest would accrue. The trial court decided to impose an eight-percent rate from the date of the final judgment. Considering the eleven-month delay between the jury s verdict and the final judgment was almost entirely attributable to Ground Control s voluminous post-trial motions, there was nothing unfair about the trial court s judgment. Thus, if the parties accept the $626, remittitur, Ground Control is not entitled to postjudgment interest before the final judgment date. Page 5 of 8

6 Issue 7: Individual claims The trial court dismissed Capsco officer Killion as an individual defendant. Ground Control argues that Killion used Capsco as his alter ego and, thus, should be personally liable for its debts. But Ground Control fails to cite any applicable case law about piercing the corporate veil to find a corporate officer personally liable. Ground Control presented no evidence that Killion incorporated Capsco to avoid personal liability nor did it show that Capsco was so organized and controlled as to make it a mere instrumentality of Killion. Thus, the trial court properly dismissed Killion as an individual defendant. Beaton argues his constitutional rights were violated when the trial court denied him a jury trial on his pending third-party claims. However, with the exception of his abuse-of-process claim, the claims asserted in Beaton s third-party complaint had been resolved. And, the trial court did not reversibly err by dismissing the abuse-of-process claim. In bringing claims against Beaton individually, Capsco was simply responding to similar claims made by Ground Control against Capsco s officers individually. Page 6 of 8

7 Topics: Shooting into dwelling - Habitual offender status - Section Section Defective indictment - URCCC Sufficiency of evidence Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: MARTIN v. STATE, NO KA SCT HON. LEE SORRELS COLEMAN LOWNDES COUNTY CIRCUIT COURT OFFICE OF THE STATE PUBLIC DEFENDER: MOLLIE MARIE McMILLIN, GEORGE T. HOLMES OFFICE OF THE ATTORNEY GENERAL: KAYLYN HAVRILLA McCLINTON Justice Maxwell Criminal Affirmed in part, reversed in part and remanded. Facts: Analysis: Eugene Martin was convicted of shooting into a dwelling and sentenced as a habitual offender to ten years. He appeals. Issue 1: Habitual offender status Martin argues his sentence is illegal because the prior federal bank-fraud conviction did not result in a sentence of one year or more and does not meet section s requirements for a habitual-offender enhancement. Before Martin s indictment was amended to seek a habitual-offender sentence, he faced a discretionary sentence of up to ten years imprisonment under section But the State sought enhanced punishment. To qualify as a habitual offender under section , the defendant must have two prior felony or federal convictions that resulted in separate prison sentences of one year or more. However, the State proved just one of Martin s prior convictions imposed a prison sentence of one year or more his 1982 burglary conviction. Martin s other cited conviction a 1994 federal bankfraud conviction from California resulted in a sentence of only three months imprisonment, with three years of supervised release. And when Martin violated the terms of that release, he was sentenced to only an additional five months imprisonment. Even with the time tallied together, he was sentenced to less than one year on the federal conviction. Therefore, Martin must be resentenced. Issue 2: Defective indictment Martin argues that his amended indictment is defective, because his indictment was improperly amended and never served on him. The only revision was the State s inclusion of his prior felony convictions to trigger the habitual-offender enhancement. URCCC 7.09 permits amending indictments to charge the defendants as habitual offenders if the defendant has an opportunity to defend and is not unfairly surprised. From the record, it is clear Martin was neither unaware nor surprised by the substantive charge of shooting into a dwelling. He had ample notice and time to contest the habitual-offender amendment. Thus, there is no error. Page 7 of 8

8 Issue 3: Sufficiency of evidence Though Martin argues his conviction is based on insufficient evidence, he fails to mention what element the State failed to prove. There was testimony from the victim and a police investigator. They detailed how Martin fired four shots from a nine-millimeter pistol into the victim s apartment. At every stage, from the shooting, to a photo lineup, and ultimately trial, the victim identified Martin as the shooter. Thus, there was sufficient evidence. Page 8 of 8