SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF MISSISSIPPI 2011-CA-OI040

Transcription

1 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF MISSISSIPPI 2011-CA-OI040 SHEILA DANETTE WELLS APPELLANT VS. FRANK PRICE and PHIL PRICE d/b/a PRICE CONSTRUCTIOCOMPANY CANTON SHEET METAL AND ROOFING APPELLEES INTEVENOR REPLY BRIEF OF APPELLEE, FRANK PRICE and PHIL PRICE d/b/a PRICE CONSTRUCTION COMPANY On Appeal from the Circuit Court of Amite County, Mississippi No. 07-CV-050J Jeffrey L. Hall BRYAN NELSON, P.A. MSBARNo." P.O. Drawer Hattiesburg, MS (601) Fax (601) Attorneys for Appellee Oral Argument is not Requested

2 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF MISSISSIPPI 2011-CA-OI040 SHEILA DANETTE WILLS APPELLANT VS. FRANK PRICE and PHIL PRICE d/b/a PRICE CONSTRUCTION COMPANY CANTON SHEET METAL AND ROOFING APPELLEES INTEVENOR CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualifications or recusal. 1. Sheila Dannette Wells Appellant 2. Frank Price and Phil Price d/b/a Price Construction Company Frank Price Appellee 3. Canton Sheet Metal and Roofing Intevenor 4. Donna M. Meehan Attorney for Appellant 5. Michael D. Simmons Attorney for Appellant 6. Jeffrey L. Hall Attorney for Appellee, ii

3 7. Wiley Jay Barbour, Jr. Attorney for Intevenor 8. John Gordan Roach Former Attorney for Appellee 9. Honorable Forrest A. Johnson Amite County, Mississippi Circuit Court Judge..,. JE '--" Attorney of Record for Appellee iii

4 TABLE OF CONTENTS TABLE OF CONTENTS... iv TABLE OF AUTHORITIES... v STATEMENT OF THE ISSUES Whether the Trial Court erred in its ruling of June 16, 2010, in assessing the Appellant Sheila Danette Wells, (hereinafter "Wells"), with forty percent (40%) and the Appellee, Frank Price and Phil Prie d/b/a Price Construction Company, (hereinafter collectively, "Price"), sixty percent (60%) of the cost incurred in replacing the existing roof structure on the subject proeprty with a standing seam roof installed by Canton Sheet Metal and Roofing, Intervenor, to this Appeal... 1 STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT....4 ARGUMENT... 4 A. Standard for Review... 4 B. The WellslPrice Constrct is not at issue in this Appeal and therefore not subject to review... 5 C. The Trial Court properly assessed Wells with forty percent (40%) of the Cost of the rof replacement per the Canton 16, 2010, Order CONCLUSION... 8 IV

5 TABLE OF AUTHORITIES Cases Ezell v. Williams 724So.2d 396,397 (Miss. 1998)... 4 Jackson Public School Dist. v. Smith 875 So.2d 1100,1102 (Miss. Ct. App. 2004)....4, 5 Mississippi Real Estate Appraiswer Licensing and Certification Board v. Schroeder, 980 So.2d 275 (MS Ct. App. 2007)... 6 Parmley v. 84 Lumber Co., 911So.2d 569 (Miss. Ct. App. 2005)... 8 Taylor v. State, 754 So.2d 598,601 MS Ct. App. 2000)... 6 Rules Miss. R. App. Proc. 28 (a)(3)... 5 v

6 STATEMENT OF THE ISSUES The sole and only issue before this Court is whether the Trial Court erred in its ruling of June 16,2010 in assessing the Appellant, Sheila Danette Wells, (hereinafter "Wells"), with forty percent (40%) and the Appellee, Frank Price and Phil Price d/b/a Price Construction Company, (hereinafter collectively, "Price"), sixty percent (60%) of the cost incurred in replacing the existing roof structure on the subject property with a standing seam roof installed by Canton Sheet Metal and Roofing, Intevenor, to this Appeal. STATEMENT OF THE CASE (A) Lower Court Proceedings: The instant Cause of Action commenced in the Circuit Court of Amite County, Mississippi, on or about April 19, 2007 wherein Frank Price and Phil Price, d/b/a Price Construction Company (hereinafter collectively referred to as "Price") filed an action against Sheila Danette Wells (hereinafter referred to as "Wells") for breach of contract and other relief. In the subject contract, Price was to remodel the Wells home located in Amite County, Mississippi. The Cause of Action was originally filed in 2004 in Amite County Chancery Court but was subsequently transferred to Circuit Court. After extensive litigation, discovery, and motion practice, the trial on the merits began in January, After three (3) days of testimony, the parties agreed to continue the matter until further notice until such time that certain issues could be resolved between them. The parties continued to litigate the issues surrounding the remodeling and construction ofthe Wells' home. Wells continued to complain about the workmanship specifically associated with the roof installed on the home. Eventually, on August 24, 2009 a hearing was held to 1

7 resolve the pending issues relating to the installation of the roof. On September 17, 2009 the Court entered an Order appointing Canton Sheet Metal & Roofing (hereinafter "Canton") to make "all necessary examinations, repairs and/or replacements as stated above" to the roof previously installed by Price. R.E On or about October 8, 2009, Canton made an inspection of the home and expressed its findings only to Counsel for Wells. Price was never made aware of any meetings nor was he ever made aware of any inspection by Canton. More importantly, Price was never made aware of any recommendation regarding replacement or any associated costs thereto. Canton notified Counsel for Wells that he recommended that the entire roof be replaced with a standing seam roof. Almost immediately thereafter, Counsel for Wells authorized unilaterally that the existing corrugated roof be replaced with a standing seam roof at a significant cost. Specifically, the cost for the replacement of the roof totaled $41, plus applicable sales tax. Price was not aware of this development until February 22, 2010, several months after the roof was replaced. Price objected to the payment of any Canton invoice. Thereafter, Price filed a Motion for Clarification on April 1,2010. (R and R. E ). On June 16,2010, the Court affirmed its September 17,2009 Order appointing Canton to perform the necessary repairs. The Court further ordered that Canton was merely to perform necessary roof repairs to the roof and that a replacement of the roof was outside the Court's intentions. (T-8). Further, the Court ordered that Price pay sixty percent (60%).of the cost charged by Canton and assessed Wells with forty percent (40%) of the costs. Thereafter, Wells filed a Motion for Reconsideration. (R.E.I07-163). On January 24, 2011, a hearing was held on Wells' Motion to Reconsider and, after argument by counsel, the Court took under advisement all argument and ordered that the trial resume on June 6,

8 Price, as ordered by the Court, promptly paid his sixty percent (60%) portion of the outstanding indebtedness. Canton received said payment and released Price from any further obligation. On June 6, 2011, the bench trial between Wells and Price resumed where the earlier trial in 2008 had left off. Following several days of testimony, the Court rendered a Decision, Order, and Final Judgment upon Bench Trial (hereinafter referred to as "Final Judgment"). (R ; R.E. 6-7). The Court, in its Final Judgment, ruled that the contract price of the subject property was $342, and that Well had only paid $294, of the contract. The Court further ruled that Wells remained responsible for this outstanding indebtedness owed to Price per the original contract. However, the Court further found that Well is entitled to certain credits and offsets and that the forty percent (40%) total previously ordered by the Court was part of those credits and offsets. Therefore, the Court then denied Wells Motion to Reconsider and that each party was to pay their own attorneys' fees. On June 21, 2011, the Court further clarified that Wells was still responsible for the payments of her forty percent (40%) portion of the outstanding indebtedness owed to Canton. No such payment has been made by Wells. 3

9 SUMMARY OF THE ARGUMENT Appellant, Sheila Danette Wells, in her brief, seeks interpretation by this Court of the underlying contract between Price and Wells. However, the Appellant specifically narrows this issue to simply whether the Court erred when it taxed Danette Wells forty percent (40%) of the necessary roof replacement on her home by Canton Sheet Metal and Roofing after it had ordered Price to bear all costs incurred to make all necessary repairs and replacements and do all things necessary to insure Wells roofwas water tight and that all good workman like industry standards. As such, there should be no issue regarding the enforcement, validity and/or interpretation of the underlying contract between the parties. Therefore, the sole issue in this Appeal is whether the Court erred in assessing to Wells forty percent (40%) of the Canton Sheet Metal Roofing charges in its Order of September 17, ARUGUMENT (A) Standard/or Review In the instant litigation, the finder of fact was the Circuit Judge. This Court has held that, absent manifest error, the findings and rulings made by the Circuit Judge will not be disturbed. Jackson Public School Dist. v. Smith, 875 So. 2d 1100, 1102 (Miss.Ct.App. 2004) (citing Ezell v. Williams, 724 So. 2d 396, 397 (Miss. 1998». Specifically, in Ezell, this Court held: Our familiar standard of review requires that when a trial judge sits without a jury, this Court will not disturb his factual determinations where there is substantial evidence in the record to support those findings. Put another way, this Court ought and generally will affirm a trial court sitting without a jury on a question of fact unless, based upon substantial evidence, the court must be manifestly wrong. This Court must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings of fact. 4

10 Jackson Public School Dist. v. Smith, 875 So. 2d 1100, 1102 (Miss. Ct. App. 2004). Because the Appellant has narrowed the issue surrounding alleged error as to the entry of a single order, this is not a de novo review matter. As discussed infra, the interpretation of the contract that existed between Wells and Price is not at issue. (B) Tlte WellslPrice Contract is not at issue in tltis Appeal and tlterefore not subject to review. In her brief, the Appellant urges this Court to interpret and review the underlying contract between Wells and Price. In fact, Wells devotes a substantial portion of her Brief to this issue. However, Wells narrowed the scope of the issue by stating as follows, to wit: "Statement of the Issue: Whether the lower court erred when it taxed Danet!e Wills with 40% of the necessary roof replacement and repairs made to her home by Canton Sheet Metal & Roofing after it ordered Price Construction Company to bear all costs and expenses incurred by Canton Sheet Metal & Roofing to make all "necessary repairs, replacements and to do all things necessary to ensure Wells' roof was watertight and met all good workmanlike industry standards" on September 17, 2009." (See Appellants Brief, p. 1) The Mississippi Rules of Appellant Procedure are very clear when addressing specific issues brought before the Court for review. The relevant rule is found in Rule 28(3) which reads as follows: Statements of Issues. A statement shall identify the issue presented for review. No separate assignment of errors shall be filed. Each issue presented for review shall be separately numbered in the statement. No issue not distinctly identified shall be argued by counsel, except upon request of the court, but the court may, at its option, notice plain error not identified or distinctly specified. Wells simply brings before this Court the issue of whether or not she should be taxed with the forty percent (40%) cost of the roof. As such, interpretation as to the validity of the 5

11 contract by and between the parties is not before this Court and therefore should not be considered. Even if this Court were to determine that there was some sort of error in interpretation and/or validity of the original contract between Wells and Price, this Court could only do so if it finds "Plain Error." "Plain Error" gives this Appellate Court the authority to recognize a plain error not identified or distinctly specified in the Appellant's Brief. The "Plain Error Doctrine" includes anything that seriously affects the fairness, integrity, or public reputation of judicial proceedings. (Mississippi Real Estate Appraiser Licensing and Certification Board v. Schroeder; 980 So. 2d 275 (MS Ct. App. 2007) citing Taylor v. State, 754 So. 2d 598, 601 (MS Ct. App. 2000). The applicable test to determine plain error is whether an error deviates from the legal rule, whether that error is plain, clear or obvious, and whether the error is prejudicial in its affect of the outcome of the Trial Court proceedings. (Id., emphasis added) There is simply no error here. The Trial Court made a specific finding of the fact regarding the damages owed by each party to the other. In fact, the Trial Court found that Wells failed to pay Price $47, pursuant to the contract of which Wells appears to be complaining. (R ; R.E. 6-7). The Court made specific finding that Wells is entitled to full credit and offset for any sum owed to Price. To that end, Wells received a substantial benefit by the Court's ruling. Therefore, the Court's taxing forty percent (40%) of the cost of the roof replacement was proper in circumstances and there exists no "Plain Error Standard" as imposed by this Court. (C) The Trial Court properly assessed Wells with forty percent (40%) of the Cost of the roofreplacement per the Canton 16, 2010, Order. The facts which lead up to the entry of this Order are clear. During the litigation, Wells constantly complained of the workmanship ofthe roof that was existing on the house for several 6

12 years. The Court had previously ordered Price to repair the existing roof per the recommendation Building Inspector David Battaglia. (R ; R.E ) Wells was not satisfied with these repairs and subsequently petitioned the Court for an Order to allow a third party to investigate and/or repair the existing roof structure. On September 17, 2009, Canton Sheet Metal was appointed by the Court to make these necessary roof repairs and Price was to pay all costs associated therein. Sometime in early October, 2009 Canton conducted its inspection and made certain recommendations to Wells' Counsel only. At a hearing held January 24, 2011, Wells' Counsel advised that she had previously submitted a proposal to Price's Counsel via only on or about October 8, Price's Counsel never received an transmission regarding any recommendation and/or estimate to replace the roof.. (T. 12). More importantly, Price's counsel never received any follow up hard copy and/or telefax transmission of the proposal made by Canton. Wells' Counsel, unilaterally, advised Canton to proceed with its recommendation which involved replacement of the roof. At the January 24,2011, hearing, the Trial Court sternly addressed this issue by stating that roof replacement was completely outside the scope of the intent of the September 17, 2009, Order. (T-6). The Court continued. "That's true but let me say this, I was shocked when I heard about the whole roof being replaced because it was never, ever, ever indicated or discussed or anything up until this point. I was all about repairing what was there and what needed to be done" (T-8.) Wells' Counsel engaged the roof replacement without notice to Price. By so doing, Wells is obligated to pay her respective share of the roof per the September 17, 2009 Order. In Mississippi, an attorney is presumed to bind the client in a contract. Specifically, this Court has held that an attorney is presumed to speak for and bind his client. Parmley v. 84 Lumber Co., 911 So. 2d 569 (Miss. Ct. App. 2005). The roof replacement was very expensive and taxing Price for this unilateral decision would not be proper. The lower Court agreed and apportioned 7

13 the costs between the parties As such, Wells must be held responsible to pay the share of the replaced roof. CONCLUSION Based upon the foregoing argument and case law, the Court of Appeals should affirm the judgment entered by the Trial Court in this cause. This the & day of Februaryj :fwxuitted, BY:\~~_. -===_ ~y L. Hall, MSB... BRYAN NELSON P.A. Post Office Drawer Hattiesburg, MS Phone: (601) 261-4lO0 Fax: (601) 261-4lO6 Web: 8

14 CERTIFICATE OF SERVICE I, the undersigned attorney of record for Appellee, do hereby certify that I have this date sent a true and correct copy of the foregoing pleading by u.s. Mail, postage pre-paid, to the following: Honorable Forrest Al Johnson Circuit Court Judge c/o Amite County Circuit Clerk Post Office Box 312 Liberty, MS Circuit Court Judge John Gordon Roach, Jr., Esquire Roach & McMillan Post Office Box 506 McComb, MS Former Attorney for Appellee Donna M. Meehan, Esquire and Mike Simmons, Esquire Cosmich & Simmons, PLLC 101 South Congress Street Jackson, MS Attorney for Appellant Jay Barbour, Esquire Henry, Barbour, Decell & Bridgforth, Ltd Post Office Box East Jefferson Street Yazoo City, MS Attorney for Intevenor THIS THE JL day of February, A.D