SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF MISSISSIPPI 2011-CA CANTON SHEET METAL AND ROOFING

Transcription

1 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF MISSISSIPPI 2011-CA SHELIA DANETTE WELLS APPELLANT v. FRANK PRICE and APPELLEE PIDL PRICE d/b/a PRICE CONSTRUCTION COMPANY CANTON SHEET METAL AND ROOFING INTEVENOR APPEAL FROM THE CIRCUIT COURT OF AMITE COUNTY, MISSISSIPPI BRIEF OF APPELLANT. SHELIA DANETTE WELLS Donna M. Meehan (MSB ~ Michael D. Simmons (MSB ~ COSMICH & SIMMONS, PLLC 101 South Congress Street Jackson, Mississippi Telephone Facsimile ATTORNEYS FOR APPELLANT

2 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF MISSISSIPPI 2011-CA SHELIA DANETTE WELLS APPELLANT v. FRANK PRICE and APPELLEE PIDL PRICE d/b/a PRICE CONSTRUCTION COMPANY CANTON SHEET METAL AND ROOFING INTEVENOR BRIEF OF APPELLANT, SHELIA DANETTE WELLS Donna M. Meehan (MSB_ Michael D. Simmons (MSB Ii j COSMICH & SIMMONS, PLLC 101 South Congress Street Jackson, Mississippi Telephone Facsimile ATTORNEYS FOR APPELLANT ORAL ARGUMENT IS NOT REQUESTED

3 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF MISSISSIPPI 2011-CA-OI040 SHELIA DANETTE WELLS APPELLANT v. FRANK PRICE and PHIL PRICE d/b/a PRICE CONSTRUCTION COMPANY APPELLEE and CANTON SHEET METAL AND ROOFING INTEVENOR CERTIFICATE OF INTERESTED PARTIES 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 Judges of the Court of Appeals may evaluate possible disqualifications or recusal. 1. Shelia 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. Mike Simmons, attorney for Appellant 6. Wiley Jay Barbour, Jr., attorney for Intervenor 7. Jeff Hall, attorney for Frank Price and Phil Price d/b/a Price Construction 1

4 Company 8. John Gordan Roach, former attorney for Frank Price and Phil Price d/b/a Price Construction Company 9. Honorable Forrest Johnson, Amite County Mississippi, Circuit Court Judge Respectfully submitted, onna M. Meefian (MSB # ) ATTORNEY FOR APPELLANT 11

5 STATEMENT REGARDING ORAL ARGUMENT Danette Wells does not believe oral argument will assist this Court's review of the circuit court's ruling requiring Wells to share a portion of the costs for the roof system installed by Canton Sheet Metal & Roofing. There is no dispute that Wells entered a contract with Price Construction that required Price Construction to install a standing seam metal roof. There is no dispute that Price Construction failed to install a standing seam metal roof and installed a cheaper panel roof instead. There is no dispute that the circuit court ordered Price Construction to make all repairs to make Wells' roof watertight and to perform the repair work in a good workmanlike manner bearing all costs and expenses associated for such repairs. There is no dispute Price Construction failed to comply with the Court's order causing the court to issue a second order concerning the roof. There is no dispute that the circuit court appointed Canton Sheet Metal & Roofing to make all "necessary repairs, replacements and to do all things necessary" to ensure Wells' roof was satisfactory, watertight and met all good workmanlike industry standards and ordered Price Construction to bear all costs and expenses associated with said roof work incurred by Canton Sheet Metal & Roofing. There is no dispute that Canton Sheet Metal & Roofing advised that due to the design of Wells' home, a metal corrugated screw down roof would not ensure the roof to be watertight and that a standing seam metal roof (as specified in the architect's plans) was required and that the information was forwarded to Price Construction, to include a proposal 11l

6 reflecting the costs for the roof. None of these material facts are disputed. Instead, the lower court, upon Price Construction's complaint concerning the costs for the roof it should have initially installed, changed its ruling and did so based on a mistaken assumption that Wells received a windfall when Canton Sheet Metal & Roofing installed the proper roof. Under this appeal record, Wells request the Court to rule on the appeal without requiring oral argument. IV

7 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... '"... i STATEMENT REGARDING ORAL ARGUMENT... iii TABLE OF CONTENTS... v TABLE OF AUTHORITIES... vii STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 2 A. Nature of the Appeal... 2 B. Proceedings in the lower court... 2 C. Standard of Review... 7 D. Summary of Facts... 8 SUMMARY OF THE ARGUMENT ARGUMENT A PRICE CONSTRUCTION CONTRACTED TO INSTALL A STANDING SEAM METAL ROOF ON WELLS' HOME AND FAILED TO DO SO B. PRICE CONSTRUCTION BREACHED ITS CONTRACTUAL OBLIGATION TO WELLS AND THE LOWER COURT ERRED WHEN IT FAILED TO UPHOLD THE CLEAR, PLAIN AND UNAMBIGUOUS TERMS OF THE WELLS- PRICE CONSTRUCTION CONTRACT C. WHEN CANTON SHEET METAL & ROOFING INSTALLED THE STANDING SEAM METAL ROOF, WELLS FINALLY RECEIVED THE BENEFIT OF THE CONTRACT SHE ENTERED INTO WITH PRICE CONSTRUCTION AND THAT WHICH WELLS COMPENSATED PRICE TO PERFORM FULLY v

8 D. ASSIGNING WELLS ANY PORTION OF THE CANTON SHEET METAL & ROOFING INVOICE IS UNJUST, INEQUITABLE AND IMPOSES A FINANCIAL OBLIGATION UPON HER WITHOUT NOTICE OR OPPORTUNITY TO ELECT TO RECEIVE THE GOODS SHE NOW IS REQUIRED TO PAY CONCLUSION CERTIFICATE OF SERVICE VI

9 TABLE OF AUTHORITIES CASES Ammons v. Cordova Floors, Inc., 904 So. 2d 185 (Miss. Ct. App 2005)... 8 Anderson v. Kimbrough, 741 So. 2d 1041 (Miss Ct. App. 1999)... 7 Citizens Nat'l Bankv. L.L. Glascock. Inc., 243 So.2d 67 (Miss.l971) G. B. "Boots" Smith Corp. v. Cobb, 860 So. 2d 774 (Miss. 2003)... 8 Gilmore Co. v. Garrett, 582 So. 2d 387 (Miss. 1991) Glantz Contracting Co. v. General Elec. Co., 379 So. 2d 912 (Miss. 1980) Hunt v. Coker, 741 So.2d 1011 (Miss. Ct. App.l999) fliinois Cent. RR. v. Travis, 808 So. 2d 928 (Miss. 2002)... 8 Mississippi State Highway Comm'n v. Patterson Enterprises, Ltd., 627 So. 2d 261 (Miss. 1993).. 16 Parkerson v. Smith, 817 So. 2d 529 (Miss. 2002) Pursue Energy Corp. v. Perkins, 558 So.2d 349 (Miss.1990) Roberts v. Robertson, 100 So.2d 586 (Miss.l958)... 14,15 Rotenberry v. Hooker, 864 So.2d 266 (Miss.2003) Starcher v. Byrne, 687 So. 2d 737 (Miss. 1997) Wilson v. Greyhound Bus Lines, Inc., 830 So. 2d 1151(Miss. 2002)... 7 OTHER AUTHORITIES 75AAMJUR.2DTRIAL 791 (1991) vii

10 STATEMENT OF THE ISSUE Whether the lower court erred when it taxed Danette Wells 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 & Roofmg 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,

11 STATEMENT OF THE CASE A. Nature of the Appeal Shelia Danette Wells (Wells) appeals from the Decision, Order and Final Judgment Upon Bench Trial dated June 10,2011 (R. at ; R.E at 6-7) and June 21, 2011 Clarification (R. at 318; R.E. at 8), which Orders Wells to pay Forty Percent (40%) of the costs incurred by Canton Sheet Metal & Roofing to repair and replace the roof on her home initially installed by Price Construction Company (Price}-the same which the lower court ordered Frank Price and Phil Price and Price Construction to pay in full because Price breached its construction contract with Wells by installing the wrong roof system, per the parties contract, and did so in a negligent manner causing extraordinary water intrusion in Wells' home Wells appeals from these same Orders. B. Proceedings in the lower courts Price Construction filed their breach of contract Complaint in the Chancery Court of Amite County, seeking damages in the amount of$108, and other costs, claiming that Wells owed Price this amount for work performed outside of the contract and without approved change orders, as required by the contract, on January 16,2004. (R. at 1-2; R.E. at 9-10) Wells filed a counterclaim, inter alia, based on the poor workmanship with which Price completed the renovations and construction of her home as well as a breach of contract claim based on Price's failure to abide by the terms of the contract it drafted and presented to Wells. (R. at 8-34; R.E. at 11-37) On April 13, 2007, the case was properly transferred to the Circuit Court of Amite County. On January 30, 2008, a bench trial commenced before the Honorable Forrest A. Johnson. After three (3) days of testimony, and the day before Wells was to present her case-in-chief, Price's counsel suggested that the trial be suspended for the purposes of trying to amicably resolve the 2

12 parties dispute which included Price's commitment to make the necessary repairs to Wells' home. (R. at 52-55, (P.l, ~ 2); R.E. at 38-41) However, after Price failed to make the necessary and promised repairs, Wells was forced to bring the matter before the lower court and did so on February 17,2009. At that time, the lower court entered an Order appointing independent contract David Battaglia to inspect Wells' home, issue a report of his findings and recommendations for proper repair. (R. at 52-55; R.E. at 38-41) Once the Battaglia inspection and report was completed, on April 28, 2009, the lower court adopted the Battaglia report as the court's fmding offacts and ordered Price Construction to "rectify all construction defects and perform all repairs noted in the Battaglia Report bearing all expenses and associated costs to perform the repairs. (R. at 56-59; R.E ). Notably, the Battaglia Report found: A.) Exterior: Roof: Specifications called for a standing seam metal roof, however, Contractor installed corrugated metal roof panels on the main house and adjacent garage/cottage which is a significant difference in respects to price and quality. The issue at hand is the repair of the existing roofing system. At the time of my inspection, I observed several places where screws were rusting and backing out on the roof. I am sure that these were some of the areas where water entered the dwelling below. The attic insulation must be replaced or treated with a mildewcide or some other product to ensure no mold develops. I observed several areas on the interior where there were stains from the water intrusion. These will need to be treated with some sort of stain blocker and repainted to match. The roof repairs must ensure that the roof is watertight and there should be no evidence, interior or exterior to the house, of water intrusion once the repairs have been completed. The foam ridge vent inserts are coming loose allover the roof and must be replaced. These are designed to prevent birds and animals from going up inside the ridges. They are supposed to be self sealing but several have come loose. One of the main advantages of a metal roof is the long life span. Most metal roofs 3

13 Important: of this type carry up to a Life time warranty or at least a 3040 year warranty when properly installed. The builder should provide something in writing from the roofing contractor and manufacturer which reflects the roof warranty, once the repairs are completed. The repairs to the metal roof will have to be specified by the original metal fabrication manufacturer representative and a written report of the findings and repair method should be provided and signed off by the representative to ensure the Warranty is honored over the long run. (R. at , specifically 210; R.E at 46-79). Price failed to comply with the Court's order, failed to contact the manufacturer, failed to warrant the roof and failed to make it watertight. Due to the failure of Price Construction to comply with the Court's April 28, 2009 Order, Wells was forced to bring the matter back before the lower court and did so on August 24,2009. This time the only issue before the lower court was the roofing issue. At that time the lower court ordered the parties to propose two (2) independent roofers to make the necessary repairs so that the Court could select a competent independent company to resolve this sole issue. On September 17, 2009, the lower court entered an Order that provided: 1....the Court appoints Canton Sheet Metal & Roofmg. to make all necessary repairs. replacements and to do all things necessary to ensure Defendant/Counter-Plaintiff's roof is satisfactory, watertight and meets all good workmanlike industry standards. 2. All costs and expenses associated with said roof work incurred by Canton Sheet Metal & Roofing will be billed to and promptly paid by Frank Price and/or Phil Price and/or Price Construction Company. IT IS THEREFORE ORDERED that Page Smith of Canton Sheet Metal & Roofing 1105 East Peace Street, Canton Mississippi

14 will as early as practicably possible commence any and all necessary examinations, repairs and/or replacements as stated above. 3. IrIS FURTHER ORDERED that Frank Price and/or Phil Price and/or Price Constructions Company will be billed and promptly pay all costs and expenses associated with said roof work incurred by Canton Sheet Metal & Roofing within ten (10) days of such billing. (R. at 60-61; R.E ) After maidng an inspection of the existing roof installed by Price Construction, Page Smith of Canton Sheet Metal & Roofing determined that the existing roof could not be repaired to insure it would be watertight and warranted, he recommended that the existing metal roof and shingles be removed down to the deck so a new ice and water shield and a new standing seam roof system be installed. (R. at 137; R.E. 82) According to Canton Sheet Metal & Roofing, due to the design of Wells' home a screw down roof, such as what Price installed, would not allow for a watertight roof. (R. at 137; R.E. 82) In this same correspondence, Canton Sheet Metal & Roofing attached its proposal for the work reflecting a charge of $41, plus tax. (R. at 138; R.E.83) This correspondence, along with the proposal, was promptly sent to counsel for Price to provide all the necessary information. (R. at 139; R.E. 84). On Friday, January 8, 2010, Canton Sheet Metal & Roofing sent in its first invoice requesting payment of $18, (R. at 141; R.E. 85) This invoice was forwarded to counsel for Price the following Monday, January 11, 2010, requesting payment within the 10 days as required by the Court. (R. at 140; R.E. 86) As is perfectly clear, the invoice reflected the total roof price $41, Canton Sheet Metal & Roofing completed the job as required and submitted its [mal invoice for payment pursuant to the lower court's September 17,2009 Order. After Canton Sheet Metal & Roofing made repeated demands for payment with none forthcoming, Price filed its Motion to 5

15 ClarifY! on March 21, 2010, seeking relief from its court ordered payment obligations for the roofing system installed by Canton Sheet Metal & Roofing. (R. at 62-68; R.E ). On June 16, 2010, six months after the installation of the roof, the lower court held a telephonic hearing on Price's Motion for Clarification and stated it intended to order Price to pay 60%, plus taxes on the Canton invoice within ten (l0) days from the date the court entered the Order, which was June 16,2010. (R. at ; R.E ). In addition, during the June 16,2010 telephonic conference, the Court opined that: "It appears that Ms. Wells is getting a windfall to me, because she wasn't originally supposed to get a standing seam roof."2 As a result of the lower court's erroneous belief, Judge Johnson ordered Wells to pay the remaining 40% of the Canton invoice. (R. at ; R.E ) On June 30, 2010, Wells filed her Motion to Reconsider as it concerned the lower court's Order requiring Wells to pay 40% of Canton Sheet Metal & Roofing's invoice. (R. at ; R.E ) The lower court reserved ruling on the Wells' Motion to Reconsider until the conclusion of the trial. On June 6-7, 2011, the parties resumed and concluded the bench trial that originally commenced three years earlier on January 30, On June 10, 2011, the lower court issued its Decision, Order and Final Judgement Upon Bench Trial and held: Among many of the incorrect statements in Price's Motion to ClarifY includes its belief that counsel for Wells 'directed' Canton to install the roof, when it is clear that the installation was based upon the design of the home, the expert opinion of the appointed roofer and the directive to make the home watertight. 2 As is plainly clear by the Price-Wells contract, which incorporated the Troyer Plans, Price was required to install a standing seam metal roof. (R at 28-29,251 (Division 7); R.E. at 96-98). 6

16 The court finds that Wells is entitled to credits and offsets that negate any remaining amounts owed to Price for the construction and the work performed. 3 This includes the 40% portion of the Canton Sheet Metal & Roofing bill the court previously ordered Wells to pay. The court declines to reconsider or amend said previous order of June 16, 2010, which remains in full force and effect, for split payment of the bill, which according to the evidence is on the high side for what the work should have costs, but is considering same in negating the remaining unpaid contract amounts and any further payments owed to Price. (R ; R.E. 6-7). Thereafter, on June 21, 2011, upon a request for clarification concerning Wells' obligation to Canton Sheet Metal & Roofing, the court wrote: By way of clarification, the previous order was not amended and remains in full force and effect, that means that Wells is still ordered to pay 40% of the Canton Sheet Metal & Roofing bill; in the court's fmal ruling in Well's favor on Price's claim for payments for the remaining contract balance and "extras" Wells was given consideration for certain credits and offsets, which included this: Wells is still responsible for the 40% of the Canton bill as previously ordered and not changed. (R. at 318; R.E. 8). C. Standard of Review "The existence of a contract and its terms are questions of fact to be resolved by the fact-finder, whether a jury, or a judge in a bench-tria\." Ammons v. Cordova Floors, Inc., 904 So. 2d 185, (Miss. Ct. App 2005) citing Anderson v. Kimbrough, 741 So. 2d 1041, 1045 (Miss Ct. App. 1999). Our supreme court has held, "[A] circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor," and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence. Ammons v. Cordova Floors, Inc., 904 So. 2d at citing Wilson v. Greyhound Bus Lines, Inc., 830 So. 2d 3 However, as obvious by the Court's Decision, Order and Final Judgment the Court made no findings as to the validity of any of Price's claims for additional monies. 7

17 1151,1155 (Miss. 2002) (citing Illinois Cent. R.R. v. Travis, 808 So. 2d 928, 931 (Miss. 2002» (overruled on other grounds). However, questions concerning the construction of contracts, are questions of law that are reviewed de novo. Ammons, at 189 citing G. B. "Boots" Smith Corp. v. Cobb, 860 So. 2d 774, 777 (Miss. 2003). D. Summary of the Facts Wells sought to have her grandmother's home remodeled, upgraded, expanded and modernized. In her efforts to achieve this goal, Ms. Wells commissioned Wayne Troyer, AlA and Nicolas S. Musso, AlA to draw up the architectural plans (Troyer Plans). These plans dictated how the home was to be built/remodeled, with what materials, features and requirements based on the design and age of the existing home. Included in the Troyer Plans, a Material and System Outline Specifications package (Spec Package) was provided, which further outlined the specifications for Wells' home. (R. at ; R.E ). Specifically, as it concerns the issue presented here on appeal, the Troyer Plans and Spec Package required that a standing seam metal roofbe installed on Wells home for "moisture protection". (R. at 195 (Division 7); R.E. 158). In March, 2003, Wells approached Phil Price of Price Construction with the Troyer Plans and the Spec Package to get an estimate on the construction of her home. Phil and Frank Price, both with Price Construction, inspected Wells' existing structure, studied the Troyer Plans and Spec Package and subsequently presented Ms. Wells with a proposal to perform the construction and remodelingjob. Wells accepted Price Construction's proposal, which specifically incorporated the Troyer Plans and Spec Package in the contract Price drafted, and signed the same on April 9, Notwithstanding the express and unambiguous requirements in the Troyer Plans and Spec Package, along with the express and unambiguous language with which Price Construction 8

18 incorporated the Troyer Plans, Price failed to install the standing seam roof as required. Instead, Price installed a cheap metal panel roof and did so in such an unprofessional manner that Wells house leaked throughout. Price was given an opportunity to fix, repair and otherwise make Wells' roof watertight and failed. On February 17, 2009, the lower court appointed David Battaglia, licensed home builder and contractor, to inspect and report his [mdings to the court. Battaglia found: Roof: Specifications called for a standing seam metal roof, however, Contractor installed corrugated metal roof panels on the main house and adjacent garage/cottage which is a significant difference in respects to price and quality. The issue at hand is the repair of the existing roofing system. At the time of my inspection, I observed several places where screws were rusting and backing out on the roof. I am sure that these were some of the areas where water entered the dwelling below. The attic insulation must be replaced or treated with a mildewcide or some other product to ensure no mold develops. I observed several areas on the interior where there were stains from the water intrusion. These will need to be treated with some sort of stain blocker and repainted to match. The roof repairs must ensure that the roof is watertight and there should be no evidence, interior or exterior to the house, of water intrusion once the repairs have been completed. The foam ridge vent inserts are coming loose all over the roof and must be replaced. These are designed to prevent birds and animals from going up inside the ridges. They are supposed to be self sealing but several have come loose. One of the main advantages of a metal roof is the long life span. Most metal roofs of this type carry up to a Life time warranty or at least a 30/40 year warranty when properly installed. The builder should provide something in writing from the roofing contractor and manufacturer which reflects the roof warranty, once the repairs are completed. Important: The repairs to the metal roof will have to be specified by the original metal fabrication manufacturer representative and a written report of the findings and repair method should be provided and signed offby the representative to ensure the Warranty is honored over the long run. 9

19 (R. at , specifically 210); R.E , specifically 72). On April 28, 2009, the lower court adopted Battaglia's findings and report as the court's findings offact. (R. at 56-59; R.E ) Rather than Price following the instructions recommended by Battaglia and ordered by the Court, Prices' effort to repair Wells' roof began and concluded with the removal of the old screws and replacing them with larger screws, which only made the leaks and the water intrusion appreciably greater. Wells was forced to bring the issue before the Court and did so on August 24, This time the only issue before the Court was the roofing issue. At that time the Court ordered the parties to propose two (2) independent roofers to make the necessary repairs so the Court could select a competent company to resolve this issue. On September 17,2009, this Court entered an Order that provided:... the Court appoints Canton Sheet Metal & Roofmg, to make all necessary repairs. replacements and to do all things necessary to ensure Defendant/Counter-Plaintiffs roof is satisfactory, watertight and meets all good workmanlike industry standards. All costs and expenses associated with said roof work incurred by Canton Sheet Metal & Roofing will be billed to and promptly paid by Frank Price and/or Phil Price and/or Price Construction Company. IT IS THEREFORE ORDERED that Page Smith of Canton Sheet Metal & Roofing 1105 East Peace Street, Canton Mississippi will as early as practicably possible commence any and all necessary examinations, repairs and/or replacements as stated above. IT IS FURTHER ORDERED that Frank Price and/or Phil Price and/or Price Constructions Company will be billed and promptly pay all costs and expenses associated with said roof work incurred by Canton Sheet Metal & 10

20 (R. at 60-61; RE.80-81). Roofing within ten (10) days of such billing. After making his initial inspection, on October 8, 2009, Page Smith of Canton Sheet Metal and Roofing sent the following correspondence: Ms. Meehan, I made an inspection of Ms. Wells' roof and determined that I can not repair and insure that it would be watertight and warranted by my company. It is my recommendation that the existing metal roof and shingles be removed down to the deck. I will then install new ice and water shield and a new standing seam roof system. I would not be comfortable installing a screw down roofbecause, due to the design of the house, there are some areas that would not allow for a watertight roof. (R. at 137; RE. 82). Canton Sheet Metal & Roofing also attached a proposal reflecting the cost for the proposed work. (R. at 138; R.E. 83). This correspondence, the explanation along with the proposal, was immediately forwarded to counsel for Price Construction for comments, input or objection. (R. at 139; R.E.84) On Friday, January 8, 2010, Canton Sheet Metal sent in its first invoice requesting payment of$18, This invoice was forwarded to counsel for Price the following Monday, January II, 20 I 0, requesting payment within the 10 days required by the Court. As is perfectly clear, the invoice reflects the total roof price $41, (R. at ; R.E ). Canton Sheet Metal & Roofing completed the job as required and submitted its invoice. After Canton Sheet Metal & Roofing made repeated demands for payment with none forthcoming, Price filed its Motion to Clarify. (R at 62-68; RE ) On June 8, 2010, the lower held a telephonic hearing and ordered Price to pay 60%, plus taxes on the Canton invoice within ten (10) days from the date the court entered the Order, which was June 16,2010. In addition, during the June 8, 2010 telephonic conference, the Court stated: 11

21 "It appears that Ms. Wells is getting a windfall to me, because she wasn't originally supposed to get a standing seam roof." Based on this erroneous belief, the lower court ordered that Wells should be required to pay the remaining 40% of the Canton invoice CR. at ; R.E ), despite the fact that the contract Price drafted and presented to Wells for the work required that Price Construction install a standing seam metal roof and despite the fact that Wells had already paid for the standing seam metal roof through payments and bank draws during the construction. 12

22 SUMMARY OF THE ARGUMENT The circuit court erred when it disregarded the provision of the contract between Price Construction and Wells that required Price Construction to install a standing seam metal roof on Wells' home. The circuit court erred when it opined that Wells received a "windfall" when Canton Sheet Metal & Roofing installed a standing seam metal roof because, as per the contract between Price Construction and Wells, Price Construction explicitly contracted to install a standing seam metal roof as called for in the Troyer Plans that Price Construction incorporated and made part of the contract it drafted. The circuit court erred when it taxed Wells with 40% of the cost for the standing seam metal roof system Canton Sheet Metal & Roofing installed on her home after it ordered Price Construction to pay 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 is satisfactory, watertight and meets all good workmanlike industry standards." 13

23 ARGUMENT The existence of a contract is a question of fact that is to be determined by a jury, or a trial judge when a trial is conducted without a jury. Hunt v. Coker, 741 So.2d loll, 1014 (Miss.Ct.App.1999) (citing 75A AMJUR.2D TRIAL 791 (1991)). The elements of a valid contract are (I) two or more contracting parties; (2) consideration; (3) an agreement that is sufficiently definite; (4) parties with the legal capacity to make a contract; (5) mutual assent; and (6) no legal prohibition precluding contract formation. Rotenberry v. Hooker, 864 So.2d 266, 270 (Miss.2003). "An instrument that is clear, definite, explicit, harmonious in all its provisions, and is free from ambiguity" will be enforced. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss. 1990). A. PRICE CONSTRUCTION CONTRACTED TO INSTALL A STANDING SEAM METAL ROOF ON WELLS' HOME AND FAILED TO DO SO. The central question in this case, and perhaps the one question that will resolve this case fully, is whether the standing seam metal roof requirement was part of the work to be performed by Price Construction under the written contract. This Court should find that it was. As evidenced by the contract, incorporating the Troyer Plans, drafted and presented to Wells by Price Construction, Price Construction contracted to purchase and install a standing seam metal roof on Wells' home and the addition it contracted to build. It is undisputed the Price failed to adhere to the terms of the contract and installed a cheap, inferior roofmg system and did so in a substandard marmer, so that it leaked throughout Wells' home. It is generally held that where a building contract refers to plans and specifications and so makes them a part of it, the contract is to be construed as to its terms and scope together with the plans and specifications. Roberts v. Robertson, 100 So.2d 586, 588 (Miss.1958). In Roberts, the 14

24 dispute centered around whether the subcontractor was required under the subcontract to insulate the pipes, and the Mississippi Supreme Court determined that there was such a duty based on the incorporation by reference of the plans and specifications of the general contract. Roberts, 100 So.2d at 588. provided: In the instant case, relevant to the issue on appeal, Price Construction's contract specifically THE REMODELING AND NEW ADDITION TO WELLS' HOME ON MIXON ROAD AS TO PLANS [sic] GIVEN TO US BY DENETTE [sic] WELLS DRAWN BY WAYNE TROYER, AIA NICHOLAS S. MUSSO, AIA *** WE PROPOSE hereby to furnish material and labor - complete in accordance with above specifications for the sum of TWO HUNDRED SIXTY EIGHT THOUSAND FIVE HUNDRED FIFTY TWO & NO/lOO- *** The contract further provided: All material is guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders and will become an extra charge over and above the estimate. (R. at 28-29; R.E )(emphasis added). The Troyer Plans incorporated in the Price Construction contract specified: Roofing Division 7 Moisture Protection 2 layers, 151b. Non-perforated asphalt saturated roofing felt 24 guage galvanized flashing 6 n half round gutters Standing seam metal roofing 15

25 (R. at 195; R.E. 158)(emphasis added). The Troyer Plans along with the Price Construction contract are clear, unambiguous and required Price Construction to install a standing seam metal roof on Wells' home and addition for moisture protection. Interestingly enough, upon the circuit court's appointment of Canton Sheet Metal & Roofing, Page Smith concluded that he could not repair the existing roof and, due to the design of Wells' home, a screw down roof (such as Price installed) would not permit a watertight roof-which is precisely the reason the Troyer Plans called for a standing seam roof. B. PRICE CONSTRUCTION BREACHED ITS CONTRACTUAL OBLIGATION TO WELLS AND THE LOWER COURT ERRED WHEN IT FAILED TO UPHOLD THE CLEAR, PLAIN AND UNAMBIGUOUS TERMS OF THE WELLS- PRICE CONSTRUCTION CONTRACT. "Questions concerning the construction of contracts are questions oflaw that are committed to the court rather than questions of fact committed to the fact finder." Parkerson v. Smith, 817 So. 2d 529, 532 (Miss. 2002) quoting Mississippi State Highway Comm'n v. Patterson Enterprises, Ltd., 627 So. 2d 261, 263 (Miss. 1993). The standard of review for questions oflaw is de novo. Starcher v. Byrne, 687 So. 2d 737, 739 (Miss. 1997). On April 9, 2003, Price Construction presented Wells with a proposal to remodel and build an addition to her existing home. As shown, Price Construction incorporated the Troyer Plans and Specifications, guaranteed the all material used would be as specified and dictated the price for the work at $268,552.00'. Wells accepted the Price Construction's proposal and terms and provided, In all, it is undisputed that Wells, either directly or through her construction loan, paid Price Construction $294, It is further undisputed that despite the fact Price Construction itemized costs for certain items such as the lights and appliances totaling $28, (R at 29; R.E. 97), that Wells made those purchases from her own personal and separate funds. 16

26 Price Construction with the Troyer Plans, which required Price Construction to install a standing seam roof system for moisture protection. Price Construction's failure to install the proper roof system was a material breach of the contract it presented to Wells. The lower court erred in finding that Wells received a "windfall" after specifically appointing Cariton Sheet Metal & Roofing to repair, replace and do all things necessary to make Wells' roof watertight, upon Price Construction's failure to do the same. "Courts do not have the power to make contracts where none exist, nor to modify, add to, or subtract from the terms of one in existence." Glantz Contracting Co. v. General Elec. Co., 379 So. 2d 912, 916 (Miss. 1980); Citizens Nat'l Bank v. L.L. Glascock, Inc., 243 So.2d 67, 70 (Miss.1971). Here, the circuit court erred when it completely nullified the explicit specifications Price Construction incorporated in the contract it drafted requiring the installation of a standing seam metal roof. Moreover, as shown, the court afforded Price Construction opportunity to make the roof watertight and it failed. Price Construction had the opportunity to make and control the repairs, but took short cuts again and caused additional problems and additional water intrusion-which is why the circuit court appointed an expert roofing company to resolve this issue. Based on the foregoing, Wells contracted for a standing seam roof, Price failed to install a standing seam roof, Price failed to make the court-ordered repairs and supply any type of warranty, as court ordered. Based on all these failures, the circuit court properly appointed an expert in the industry to do what Price Construction failed to do. Upon finding that the circuit court erred in assigning any portion of the Canton Sheet Metal & Roofing invoice to Wells, this Court should reverse the ruling in that regard and properly tax Price Construction with the cost of the entire roof it was paid to install but failed. 17

27 C. WHEN CANTON SHEET METAL & ROOFING INSTALLED THE STANDING SEAM METAL ROOF, WELLS FINALLY RECEIVED THE BENEFIT OF THE CONTRACT SHE ENTERED INTO WITH PRICE CONSTRUCTION AND THAT WHICH WELLS COMPENSATED PRICE TO PERFORM FULLY. As shown above, Price Construction contracted to remodel Wells existing horne and to build a new addition using the architectural plans drawn specifically for the design of her existing horne. Having failed to abide by the specifications and after efforts to allow Price Construction to remedy the deficiencies proved futile, Wells sought judicial assistance through the lower court. On September 21, 2009, the lower court ordered as follows: After consideration of the parties' submissions, the Court appoints Canton Sheet Metal & Roofing to make all necessary repairs. replacements and to do all things necessary to ensure Defendant/Counter-Plaintiff's roofis satisfactory, watertight and meets all good workmanlike industry standards. All costs and expenses associated with said roof work incurred by Canton Sheet Metal & Roofing will be billed to and promptly paid by Frank Price and/or Phil Price and/or Price Construction Company. IT IS THEREFORE ORDERED that Page Smith of Canton Sheet Metal & Roofing 1105 East Peace Street, Canton Mississippi will as early as practicably possible commence any and all necessary examinations, repairs and/or replacements as stated above. IT IS FURTHER ORDERED that Frank Price and/or Phil Price and/or Price Constructions Company will be billed and promptly pay all costs and expenses associated with said roof work incurred by Canton Sheet Metal & Roofing within ten (10) days of such billing. At no time did the lower court place a dollar amount or any limitations or restrictions on to how Canton Sheet Metal & Roofing was to accomplish the task of making Wells' roof watertight. At no time did the lower court imply that Price Construction was to approve Canton Sheet Metal & Roofing's plan to make the roof watertight. At no time between September, 2009 (when the 18

28 lower court appointed Canton Sheet Metal & Roofmg) and March, 2010 (when Price filed its Motion to Clarify) did Price Construction seek "clarification" or attempt to impose any type of limits upon Canton Sheet Metal & Roofing in making Wells' roof watertight. Instead, Price Construction did nothing and Canton Sheet Metal & Roofing accepted the appointed task in good faith and exercised all good workmanship and expertise following the court's order. As shown above, on October 8, 2009, Page Smith of Canton Sheet Metal wrote: I made an inspection of Ms. Wells' roof and determined that I can not repair and insure that it would be watertight and warranted by my company. It is my recommendation that the existing metal roof and shingles be removed down to the deck. I will then install new ice and water shield and a new standing seam roof system. I would not be comfortable installing a screw down roofbecause, due to the design of the house, there are some areas that would not allow for a watertight roof. In the same correspondence, Smith attached a proposal for the labor, equipment and material necessary to comply with the circuit court's order, which included the final price of $41, plus tax. This correspondence was immediately forwarded to Price Construction's counsel, along with Canton Sheet Metal's proposal. At no time were there any objections, comments, efforts to circumvent or interfere with the proposed work. Having no objections, two (2) months later in December, 2009 Canton Sheet Metal & Roofing installed the standing seam metal roof as proposed and forwarded its invoice which was forwarded to Price Construction for payment in accordance with the circuit court's order. By and through Canton Sheet Metal & Roofmg, Wells fmally received what she bargained for and what she had paid for through her payments to Price Construction. In turn, the circuit court correctly ordered Price Construction to pay Canton Sheet Metal & Roofmg the monies it received from Wells for goods and services never performed. The circuit court's September, 2009 order was correct, just and forced Price Construction 19

29 to meet its contractual obligations. With all due respect to the learned circuit court judge, Wells did not receive a "windfall" with the installation of the proper roof, finally Wells received what she should have received six years earlier when Price Construction initially installed the roof. D. ASSIGNING WELLS ANY PORTION OF THE CANTON SHEET METAL & ROOFING INVOICE IS UNJUST, INEQUITABLE AND IMPOSES A FINANCIAL OBLIGATION UPON HER WITHOUT NOTICE OR OPPORTUNITY TO ELECT TO RECEIVE THE GOODS SHE NOW IS REQUIRED TO PAY. Without question, the specifications required Price Construction to install a standing seam metal roof on her home. Wells compensated Price Construction to install the standing seam metal roof as required by the Troyer specifications and in accordance with the contract Price Construction drafted. To force Wells to incur additional expense and debt that the circuit court ordered another pay, after the fact, is unjust and unfair. Had Wells known she was going to taxed to share the expense of a roof she already paid for once, Wells undoubtable would have sought other relief. Certainly, an innocent purchaser should not be forced to sustain a heavy financial loss when the builder, through his own negligence or his own failure to construct the house in a workmanlike manner, caused the defect. Gilmore Co. v. Garrett, 582 So. 2d387, 391 (Miss. 1991). Nonetheless, this is precisely what the circuit court's order imposing Wells to bear 40% of the Canton Sheet Metal & Roofing invoice does. When the circuit court ordered Price Construction to bear all costs and expenses incurred to Canton Sheet Metal & Roofmg to make Wells' roof watertight, it properly held Price Construction liable and accountable for the inferior, non-compliant roof it installed poorly and the same which caused additional damage due to massive water intrusion. When the circuit court amended its order and taxed Wells with 40% of the $41, cost incurred by Canton Sheet Metal & Roofing to install the specified roof, it rewarded Price Construction for its 20

30 inferior work, cutting comers by using inferior products and required Wells to pay another $17, plus for a roof she already paid for once, the circuit court essentially held Wells partially responsible for Price Construction's defective work. This is not the law in Mississippi and this Court should reverse the circuit court's order and find Price Construction liable and responsible for. all remedial, repair and replacement work Canton was required to perform. 21

31 CONCLUSION For the reasons stated herein, this Court should reverse the findings and order of the lower court as to Wells' obligation to share costs of the standing seam roof. Respectfully Submitted, (MSB of Her Attorneys OF COUNSEL: Michael D. Sinunons (MSB -. Cosmich & Sinunons, PLLC 101 South Congress Street Post Office Box ( ) Jackson, Mississippi Telephone: Facsimile:

32 CERTIFICATE OF SERVICE I certify that I have this day mailed by United States mail, postage prepaid, the original and three copies of this Brief of Appellant Shelia Danette Wells, to Honorable Betty W. Soften, Clerk of the Supreme Court of the State of Mississippi, P.O. Box 249, Jackson, Mississippi, , and a copy of the same brief to the following via U.S. Mail: Jeffrey L. Hall BRYAN NELSON, P A PO Box Hattiesburg, MS John Gordon Roach, Jr. Roach & McMillan Post Office Box 506 McComb, MS Jay Barbour, Esq. Henry, Barbour, DeCell & Bridgforth, Ltd Post Office Box East Jefferson Street Yazoo City, MS Honorable Forrest Al Johnson Circuit Court Judge c/o Amite County Circuit Clerk Post Office Box 312 Liberty, MS This the /J!day of November,