CASE No CA-00930

Transcription

1 E-Filed Document Mar :51: CA Pages: 28 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE No CA IS-CA A-1 A-I FIRE SPRINKLER CONTRACTORS, LLC d/b/a A-1 A-I FIRE SPRINKLER, LLC, WAYNE MARISCO and SANDY MARISCO APPELLANTS/DEFENDANTS ApPELLANTS/DEFENDANTS BELOW Versus B.W. SULLIVAN BUILDING CONTRACTOR, INC. APPELLEEIPLA!NTIFF ApPELLEEIPLAINTIFF BELOW BRIEF OF THE APPELLEE Appeal from the Circuit Court of Pearl River County, Mississippi Civil Acton No H Honorable Prentiss G. Harrell, Presiding COUNSEL: Carey R. Varnado (MSB # 6593) cvarnado@mpvlaw.com Brian R. Bledsoe (MSB # ) bbledsoe@mpvlaw.com MONTAGUE, PITTMAN & VARNADO, P.A. 525 Main Street Post Office Drawer 1975 Hattiesburg, Mississippi Telephone: Facsimile: ORAL ARGUMENT NOT REQUESTED

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI A-1 FIRE SPRINKLER CONTRACTORS, LLC d/b/a A-1 FIRE SPRINKLER, LLC, WAYNE MARISCO and SANDY MARISCO vs. B.W. SULLIVAN BUILDING CONTRACTOR, INC. APPELLANTS CASE NO CA APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record for Appellee 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 disqualification or recusal: I. A-1 Fire Sprinkler Contractors, LLC, Appellant; 2. A-1 Fire Sprinkler, LLC, Appellant; 3. Wayne P. Marisco, Appellant; 4. Sandy Marisco, Appellant; 5. B.W. Sullivan Building Contractor, LLC, Appellee; 6. Montague, Pittman & Varnado, P.A. (Cary R. Varnado, Esq. and Brian R. Bledsoe, Esq.), Trial and Appellate Counsel for Plaintiff-Appellee; 7. Tom P. Calhoun, III, Esq., Trial Counsel for Defendant-Appellant; 8. Jernigan Copeland & Anderson, PLLC (H. Richard Davis, Jr., Esq.), Counsel for Appellant; and 9. Honorable Prentiss G. Harrell, Circuit Court Judge, Pearl River County, Mississippi. Respectfully submitted, this the 23'd day of March, Isl Brian R. Bledsoe Brian R. Bledsoe (Miss. Bar No )

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv STATEMENT OF THE ISSUES...! STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS....4 SUMMARY OF THE ARGUMENT... 9 ARGUMENT A. The "Volunteer Rule"... IO 1. This Court should refuse to consider A I's arguments regarding the "volunteer rule" on the ground that the issue was not raised in the trial court, but for the first time on appeal... IO 2. The application of the volunteer rule is precluded by BWS's uncontradicted evidence at trial that the overpayment to Al was involuntary and made under duress a. BWS presented ample, uncontradicted evidence that supports its assertion that it made the overpayment under duress b. The evidence presented by BWS supports the finding that it made the overpayment under duress Whether BWS made the overpayment to Al under duress is a question of fact decided by the trial court in a bench trial, and the trial court did not commit "manifest error" in not barring BWS's recovery based on the volunteer rule B. The subcontract between Al and BWS is unambiguous and includes the plans and specifications which set out the subcontract work ii

4 I. The trial court properly applied governing rules of contract interpretation The trial court properly held that the plans and specifications were part of the subcontract between Al and BWS Marisco's failure to read the plan specifications has no effect on the case C. The trial court properly rendered judgment against Al Fire Sprinkler, LLC CONCLUSION CERTIFICATE OF SERVICE iii

5 TABLE OF AUTHORITIES CASES: Anderson v. La Vere, 136 So. 3d 404 (Miss. 2014) Armstrong v. Miss. Farm Bureau Cas. Ins. Co., 66 So. 3d 188 (Miss. App. 2011) Bryant v. Cameron, 473 So.2d 174 (Miss.1985)... 11, 19 Bushing v. Griffin, 542 So. 2d 860 (Miss. 1989) Chassaniol v. Bank of Kilmichael, 626 So. 2d 127 (Miss. 1993) ~ CityofVicksburgv. Butler, 56 Miss. 72 (1878)... 12, 13, 14 Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So. 2d 400 (Miss. 1997) Epperson v. SouthBank, 93 So. 3d 10 (Miss. 2012) Flagstar Bank, FSB v. Danos, 46 So. 3d 298 (Miss. 2010) Genesis Ins. Co. v. Wausau Ins. Cos., 343 F.3d 733 (5th Cir. 2003) Glantz Contracting Co. v. General Elec. Co., 379 So.2d 912 (Miss. 1980)....15, 16 Hicks v. Bridges, 580 So. 2d 743 (Miss. 1991) McDaniel Bros. Constr. Co., Inc. v. Burk-Hallman Co., 175 So. 2d 603 (Miss. 1965) Morris v. Macione, 546 So. 2d 969 (Miss. 1989) New Orleans & NE. R. Co. v. Louisiana Const. & Imp. Co., 33 So. 51 (La. 1902) Paradise Corp. v. Amerihost Dev., Inc., 848 So. 2d 177 (Miss. 2003) Purvis v. Barnes, 791 So. 2d 199 (Miss. 2001) Radich v. Hutchins, 95 U.S. 210 (1877) Roberts v. Robertson, 100 So. 2d 586 (Miss. 1958) Ross v. City of Geneva, 357 N.E.2d 829 (Ill. App. 1976) IV

6 Stanley v. Mississippi State Pilots of Gulfport, Inc., 951 So. 2d 535 (Miss. 2006) Swift & Courtney & Beecher Co. v. US., 111 U.S. 28 (1884) University of Mississippi Med Center v. Pounders, 970 So. 2d 141 (Miss. 2007) Wells v. Price, 102 So. 3d 1250 (Miss. App. 2012)....17, 18 OTHER AUTHORITIES: 25 Am. Jur. 2d Duress and Undue Influence 35 (Feb. 2016) Am. Jur. 2d Restitution and Implied Contracts 97 (Feb. 2016) Am. Jur. 2d Restitution and Implied Contracts 105 (Feb. 2016) Am. Jur. 2d Restitution and Implied Contracts 106 (Feb. 2016)...15 v

7 STATEMENT OF THE ISSUES Pursuant to Rule 28(c) of the Mississippi Rules of Appellate Procedure, Appellee B.W. Sullivan Building Contractor, Inc. ("BWS")1 makes the following statement of the issues: A. Regarding the "volunteer rule": 1. Whether this Court should refuse to consider the Appellants' (collectively, "Al") argument regarding the "volunteer payment doctrine" on the ground that the issue was not presented in the trial court, and is argued for the first time in this appeal. 2. Notwithstanding the above, whether the application of the volunteer rule is precluded by BWS's uncontradicted evidence at trial that it made the overpayment involuntarily and under duress. 3. Because the issue of whether BWS made the overpayment under duress is a question of fact to be decided by the trial court in a bench trial, whether the trial court committed "manifest error" in not barring BWS's recovery based on the volunteer rule. B. Whether the trial court erred in ruling that the subcontract between Al Fire Sprinkler Contractors, LLC ("Contractors") and BWS is unambiguous and includes the plans and specifications which set out the subcontract work. C. Whether the trial court erred in rendering judgment against Al Fire Sprinkler, LLC ("Sprinkler"), the successor company to Contractors, which breached its subcontract with BWS. For ease of reference, except where otherwise indicated, the abbreviations set out at page 2 of the Brief of the Appellants are used here. 1

8 STATEMENT OF THE CASE This case anses from a dispute over the scope of the $220,000 subcontract (the "subcontract") between and Contractors and BWS, the general contractor on a $6.5 million project (the "project"). BWS asserted that the subcontract included the plans and specifications expressly referred to in the subcontract; Contractors contended that it did not. As the project completion date drew near, in order to avoid the imposition of liquidated damages and collect the final $1 million it was owed by the owner ("MMD"), BWS was forced to pay $32,045 (the "overpayment"), in addition to the $220,000 subcontract sum, to other contractors to perform the work identified in the plans and specifications which Contractors was obligated to but did not perform. In the midst of the dispute between BWS and Contractors, Contractors' sole member ("Marisco") dissolved the company and formed a new one called Al Fire Sprinkler Contractors, LLC ("Sprinkler"), in which Marisco and his wife ("Sandy") were the members. BWS subsequently filed suit against Contractors, Sprinkler, Marisco and Sandy to recover the overpayment. During a one-day bench trial, only two witnesses testified: Marisco for Al, and BWS project engineer Edwin Humphrey for BWS. Through Mr. Humphrey, BWS presented evidence to establish that the subcontract included the plans and specifications, and that BWS made the overpayment under duress. Al did not challenge BWS's assertion that it made the overpayment involuntarily and under compulsion. The trial judge interpreted the subcontract to include the work identified in the plans and specifications, and entered judgment in favor of BWS against Sprinkler in the amount of the overpayment. The trial court declined to grant BWS's request to pierce the corporate veil of Contractors and impose personal liability on Marisco and Sandy. Contractors, Sprinkler, 2

9 Marisco and Sandy (collectively referred to as "Al") filed this appeal, challenging the trial court's interpretation of the subcontract and the fact that the judgment was entered against Sprinkler. For the first time on appeal, without raising the issue in the trial court, Al asserts that BWS was precluded from recovering the overpayment by the "voluntary payment" doctrine. 3

10 STATEMENT OF THE FACTS In early 2010, MMD awarded BWS a $6.5 million contract to construct the Combined Arms Collective Training Facility in Perry County, Mississippi (the "project"). (R.E. 0055). The original completion date for the project was in November 2011, but was subsequently extended to February 2, (R.E ). As the general contractor, BWS was subject to liquidated damages of $1, per day if it did not complete the project by February 2, (R.E. 0056). Among many other things, the project called for the installation of a fire protection system, the requirements of which were set out in detailed plan specifications (the "plan specifications") prepared by the projects' architects, JBHM Architects. (R.E. 0048, and Trial Exhibit "6", R.E ). The plan specifications are divided into four (4) sections: 1. Section Electric Fire Pump and Accessories with Prefabricated Enclosure (R.E ); 2. Section Clean-Agent Extinguishing Systems (R.E ); 3. Section Wet Pipe Fire Suppression Sprinklers (R.E ); and 4. Section Cast in Place Concrete Water Storage Tank (R.E ). On May 18, 2010, Contractors submitted a bid to BWS to perform the fire protection work on the project for a total of $220,000. (Trial Exhibit "l", R.E ). On its second page, Contractors' bid proposal lists certain excluded items, including "Any and all concert work." (R.E. 0144) (The parties stipulated that word "concert" was a typographical error intended to be "concrete"). Contractors' bid referenced the Fire Protection Drawings prepared by JBHM Architects (R.E. 0143). 4

11 On August 9, 2010, BWS and Contractors entered into a contract which called for Contractors to be paid $220,000 to "[f]urnish and install all fire sprinkler systems and fire pump/house as per plans specifications and addend urns [sic] as prepared by JBHM Architects." (Trial Exhibit "l", R.E. 0142). In addition to the plain language in the subcontract, BWS presented testimony from the project engineer, Mr. Humphrey, who testified that the plan specifications were in fact part of the subcontract between BWS and Contractors, and that the plan specifications included the "clean agent system" and "cast in place concrete water storage tank." (R.E. 0048, 0058, 0067, 0089). According to Mr. Humphrey, "Both were clearly and fully stated on both the plans and specifications." (R.E. 0089). Mr. Humphrey testified: The contract... states "to furnish and install all fire sprinkler systems," plural, "and fire pump house according to plan specifications and addendums as provided by JBHM," which [Marisco] had previously looked at and based his price on. (R.E ). On cross-examination, when questioned about Contractors' bid proposal, Mr. Humphreys testified: [O]n page 1, he specifically states "and will provide a 10,000-gallon water storage tank as per the plans and specifications." The plans and specifications very clearly state that it is a cast in place concrete water storage tank. It is noted in the specifications, and it's noted several times on the fire protection drawing, as well. (R.E. 0075; see also R.E ("[Contractors' bid also states that it's for all fire protection systems per FPl and FP2, and it specifically also states a 10,000-gallon water tank.")). As conclusively and clearly shown above by the project documents (Trial Exhibit "6", R.E ) and the testimony, the plan specifications prepared by JBHM Architects include a "clean agent system" and "cast in place concrete water storage tank." However, when it came time to do the work, Contractors took the position that it was not responsible for these items. (R.E , 0121). The project completion deadline was drawing near, and BWS had to complete the project by that date to avoid liquidated damages and to get paid the final $1 million 5

12 it was owed on the project. Therefore, BWS was forced to pay a company called ADS to do the concrete form work for the concrete water storage tank, and a company called VFP to install the clean agent system, in addition to the money BWS paid Contractors under the subcontract. (R.E. 0064; Trial Exhibit "2", R.E. 0145; Trial Exhibit "3", R.E ; Trial Exhibit "4", R.E ). According to the testimony of Mr. Humphrey, BWS had no other choice: [T]he clean agent system is a part of the total fire protection system for this project. There was a wet pipe sprinkler system, the clean agent system, the fire pump house, and the water storage tank. All these systems have to work in concert with one another, and they have to be tested, inspected, and approved by the state fire marshal, the project managers for the military department. We were approaching that testing deadline. So in order to put the last pieces of the puzzle together, so to speak, VFP had to come complete [Contractors'] work. We ultimately had no option but to do what we did. Q: And in addition to the $1,000 a day liquidated damages which would have started two weeks and three days after the last check, how much was still owed to B.W. Sullivan at the time of that last check on the contract? A: At this point in time, approximately one million dollars. Q: Would that one million dollars have been paid had you not written that check to VFP as requested? A: No, sir. It would not. (R.E. 0068; see also R.E ). When asked to explain what would happen to BWS if it did not pay VFP and ADS to perform the work to install the clean agent system and water tank, Mr. Humphrey testified, "We would be in breach of contract. We would not meet our completion date, and thus be charged liquidated damages." (R.E. 0066). Marisco himself testified that VFP was a sub-subcontractor of Contractors on the fire protection system. (R.E. 0124). BWS also ended up paying a company called Hydro Technologies $60,000 to install the fire pump house for the project. (R.E. 0069). In all, BWS was forced to pay a total of $252,045 6

13 to complete the fire protection system that Contractors had contracted to perform for $220,000, constituting an overpayment of$32,045. (R.E. 0129; Trial Exhibit "2", R.E. 0145). After BWS demanded that Contractors perform the work under its subcontract, and during the time it was forced to pay VFP and ADS to do that work instead of Contractors, Marisco dissolved Contractors and formed Sprinkler the very next day, changing the name of the company by deleting the word "Contractors." (R.E ). Neither Contractors nor Sprinkler has bylaws, an operating agreement, or any corporate records such as minutes of meetings. (R.E ). Sprinkler and Contractors both do fire protection work, and Sprinkler uses the same tools and equipment that Contractors used before its dissolution. (R.E ). After reviewing the contract documents and listening to a substantial portion of the testimony, the trial court stated, "I think I've got enough on whether we have a contract.... I've heard a lot of information this morning on this issue of contract formation or not." (R.E ). By the end of the trial, the trial court was ready to rule, and did, as follows: Now, we've heard enough. This Court is - I've read the entire file. I've heard this matter, both cases. It is a contractual matter, and then, it is a matter of liability.... I've been in the Defendant's position where I did not adequately, properly review the contract, and it was to my peril. But when you put yourself in an arena of hard, contractual matters, you have to suffer the consequences when you did not review it adequately and sufficiently... [Y]ou do have to look at four comers of the contract, and you do have to read them, and you can't piecemeal it.... This was a $220,000 contract entered into by people with capacity [and] with mutual assent. I've heard sufficient information that it is a valid contract and that... $32,045 were added to the 220. Thus, the main contractor paid this much dollars [sic] to either the sub or his sub-subs, assigns, whatever verbiage you want to use. A sub or a contractor does have a principal responsibility to review the architectural plans and specs and be in conformity therewith. The issue here of the cleaning system and the tank have taken an awful lot of testimony and conversation, and it's hard law, but I do find that Mr. Marisco through one of his LLCs did have responsibility. 7

14 Thus, there is a liability for the $32,045, and I will enter a judgment for that amount at 6 percent. I will not allow attorney fees or any punitives. The big issue is who am I going to give the judgment to. LLC 1 was administratively dissolved best I can determine on December the 9 1 h. LLC 2, Sprinkler, took over on And the only distinction is Contractor versus Sprinkler name, or noun, and Ms. Marisco, or Sandy, was a member of No. 2 and not 1. LLC 1 has been administratively dissolved, and we will - LLC 2 took over... I will give a judgment against LLC 2 in the principal amount of $32,045 at 6 percent interest. (R.E ) (emphasis added). The Judgment in the amount of $32,045 against Al Fire Sprinkler, LLC was entered on May 27, (R.E. 0004). This appeal ensued. 8

15 SUMMARY OF THE ARGUMENT The trial court's judgment of May 27, 2015 should be affirmed in all respects. Al's first "question presented" regarding the "volunteer rule" should not be considered at all by this Court because the issue was not presented to the trial court for its consideration, and is raised for the first time on appeal. Even if the Court does consider the issue, the uncontradicted evidence presented at trial by B WS establishes that it made the overpayment to A I under duress. Moreover, whether BWS made the overpayment under duress is a question of fact which can be reversed only if the trial court committed manifest error, which is clearly absent here. The primary issue at trial was whether the subcontract between Al and BWS included the clean agent system and the water storage tank. These items were clearly included in the plan specifications prepared by JBHM Architects, which were just as clearly referred to by and incorporated into the contract. The trial court did not err in ruling that the subcontract between Al and BWS is unambiguous, and that it included the plans and specifications which set out the subcontract work for which A 1 was responsible. Finally, the trial court properly rendered judgment against Al Fire Sprinkler, LLC. Sprinkler was the successor company to Contractors, employing the same people, using the same tools and equipment, and otherwise being a mere continuation of Contractors, which the trial court found to have breached the subcontract with BWS. 9

16 ARGUMENT A. The "Volunteer Rule. " 2 Al's statement of the first "question presented" is erroneously presented: "Does the 'volunteer doctrine' or voluntary payment rule preclude the general contractor from recovering any funds voluntarily paid?" (Emphasis added). Al's characterization ofbws's overpayment as "voluntary" is not only contradicted by BWS's evidence at trial; Al did not raise the volunteer rule before the trial court, and should therefore not be permitted to raise it here for the first time on appeal. Ironically, therefore, Al's first "question presented" in favor of reversal should not be considered at all by this Court. But even if the Court were to do so, Al's argument is without merit because application of the rule is precluded by the uncontradicted evidence presented by BWS at trial. 1. This Court should refuse to consider Al's arguments regarding the "volunteer rule" on the ground that the issue was uot raised in the trial court, but for the first time on appeal. Al did not present the issue of whether the volunteer rule applies to bar BWS's recovery of the overpayment to the trial court. In the entire course of litigation, A I did not file a motion with the trial court raising the issue. At trial, BWS's corporate representative testified that BWS was compelled to make the overpayment, and expressly identified the factors that forced BWS to do so. Yet, counsel for Al did not ask him a single question challenging his testimony. The trial court provided A I's attorney repeated opportunities to "say anything else" (R.E ), "say anything? Ask anything else? (R.E. 0053), and telling him with regard to his questioning, "I don't want to deny you anything, Mr. Calhoun, or your client" (R.E. 95), and "I want you to have your day in court." (R.E ). Nevertheless, counsel for Al never once argued for the 2 The rule variously called the "voluntary payment rule," "voluntary payment doctrine," "volunteer doctrine," etc., is referred to herein as the "volunteer rule." 10

17 application of the rule or against BWS' contention that it made the overpayment under duress. Indeed, the word "volunteer" does not appear anywhere in the trial transcript, or in the entire record - until now, on appeal, in the Appellants' Brief. The Mississippi Supreme Court has repeatedly held that it "will not consider issues raised for the first time on appeal." See, e.g., Anderson v. La Vere, 136 So. 3d 404, 410 (Miss. 2014); Flag.star Bank, FSB v. Danos, 46 So. 3d 298, 311 (Miss. 2010) (citations omitted). "The law is well settled in Mississippi that appellate courts will not put trial courts in error for issues not first presented to the trial court for resolution, and that issues not presented in the trial court cannot be first argued on appeal." Purvis v. Barnes, 791 So. 2d 199, 202 (Miss. 2001) (citing Chassaniol v. Bank of Kilmichael, 626 So. 2d 127, (Miss. 1993)). In this case, because Al failed to present any argument regarding the volunteer rule to the trial court, this Court should refuse to consider the issue here, for the first time on appeal. 2. The application of the volunteer rule is precluded by BWS's uncontradicted evidence at trial that the overpayment to Al was involuntary and made under duress. Despite the fact that Al failed to present or argue the issue to the trial court, BWS addresses the propriety vel non of the application of the volunteer rule out of an abundance of caution, as it is well established that if a trial court "fails to make findings on issues of fact, th[ e Mississippi Supreme] Court assumes that the issues were resolved in favor of the appellee. Bryant v. Cameron, 473 So.2d 174, 179 (Miss.1985). Even if the Court does consider the volunteer rule, it should find A I's argument in favor of its application to be without merit. As the name implies, the fundamental prerequisite for the application of the volunteer rule is that the payment at issue be voluntary. The rule establishes that "a voluntary payment cannot be recovered back and a voluntary payment within the meaning of this rule is a payment 11

18 made without compulsion, fraud, mistake of fact, or agreement to repay a demand which the payor does not owe, and which is not enforceable against him, instead of invoking the remedy or defense which the law affords against such demand. Genesis Ins. Co. v. Wausau Ins. Cos., 343 F.3d 733, 736 (S'h Cir. 2003) (emphasis added) (citing McDaniel Bros. Constr. Co., Inc. v. Burk- Hallman Co., 175 So. 2d 603, 605 (Miss. 1965)). a. BWS presented ample, uncontradicted evidence that supports its assertion that it made the overpayment under duress. First, Al is simply wrong in asserting that "[t]here was no evidence presented at trial that BWS was under any legal or other compulsion to pay [$32,045]"; that BWS made the overpayment "without any legally cognizable duress"; that "BWS never presented any evidence that it was forced to 'overpay' the funds under the subcontract"; and that "[t]here is insufficient record evidence to support any contention that BWS was coerced into overpaying under the subcontract." See Brief of Appellants, pp. 4, 5, 8, 9. Similarly, Al is mistaken in stating, "The only coercion or duress addressed at trial by BWS was the potential imposition of liquidated damages if the project were not completed on time." Id., p. 11. Mr. Humphrey clearly and repeatedly testified that BWS was not only facing liquidated damages, but also that it would not be paid the final $1 million it was owed on the project if it did not complete it one time. Significantly, Al did not challenge any of Mr. Humphrey's testimony, not did it present any contradictory evidence at trial. b. The evidence presented by BWS supports the finding that it made the overpayment under duress. Second, A I misapplies the standard governing the determination of whether a payment is voluntary or involuntary. Al cites City of Vicksburg v. Butler, 56 Miss. 72 (1878), for the proposition that: "[C]ompulsion or duress which will make a payment involuntary, is, that 'there 12

19 must be actual or threatened exercise of power possessed, or believed to be possessed, by the person exacting or receiving the payment, on the person or property of another, for which the other has no other means of immediate relief than by making payment." Id at 74 (cites omitted) (emphasis in original). Al accurately quotes the language above from the opinion in City of Vicksburg v. Butler, and the stated rule is still good law today. But by omitting other parts of the City a/vicksburg v. Butler opinion, and by failing to mention the facts of the cited U.S. Supreme Court case it quotes, Al erroneously argues that BWS's overpayment was voluntary and not made under duress. In City of Vicksburg v. Butler, the city tax collector demanded that Butler's business pay a tax that Butler correctly contended to be illegal. Id. at 75. After receiving repeated demands by the tax collector, coupled with threats to "shut up [Butler's] shop" if he did not comply, Butler paid the disputed tax, and subsequently sued the City of Vicksburg to recover the amount he had paid. Id. at 72, 75. The Mississippi Supreme Court articulated the issue presented as: "When is a payment involuntary and compulsory, in the sense that may be recovered back?" Id. at 73. The Court explained: It is not necessary for the payer to wait until his person has been arrested, or his property seized, before he makes the payment. He may anticipate the extreme course that the officer is compelled by his authority to take, and pay to avoid that alternative. That principle disposes of this case. Butler, in his testimony, states that the collector pressed him for the money, - called several times. The firm objected to the tax as illegal, and paid because of a threat to shut up their shop. The... money was paid to avoid the extreme measures which might have been taken against them. 13

20 Id. at 75. Accordingly, the Court held that Butler's payment was not voluntary, and therefore, the volunteer rule did not preclude him from recovery of the payment. Id at 73, The compulsion necessary to establish an involuntary payment that may be recovered back need not amount to the duress necessary to the avoidance of a contract, nor is fraud or bad faith on the part of the payee an essential element or condition. See 66 Am. Jur. 2d Restitution and Implied Contracts 97 (Feb. 2016) (citations omitted). Rather, "[ d]uress," for purposes of a claim that payment was made involuntarily and should be recovered, is shown where, by reason of the peculiar facts, a reasonably prudent person finds that, in order to... protect business interests, it is necessary to make a payment of money that the person does not owe and that in equity and i r I 3 The City of Vicksburg v. Butler opinion quotes Radich v. Hutchins, 95 U.S. 210 (1877), a U.S. Supreme Court case in which the plaintiff wanted to export his cotton from Texas during the Civil War. However, the plaintiff was told by Confederate government officers that, by Confederate law, he would not be issued a permit to export the cotton unless he first sold onehalf of the cotton he wished to export to the CSA at a significant discount. Id. at , 214. The plaintiff agreed to do so, but on the stipulation that he later be allowed to repurchase the cotton he had delivered at "such sum as the [Confederate officers] might demand." Id. at 211. The plaintiff subsequently repurchased the cotton by paying the Confederate officers over $13,000, and was consequently issued a permit to export that cotton, as well. Id. After the Civil War, the plaintiff sued the officers to recover the $13,000 he had paid them on the ground that the payment "was illegally and oppressively exacted." Id. The lower court rejected the plaintiffs argument dismissed his case. On appeal, the Supreme Court affirmed, holding that the plaintiff was barred from recovering his $13,000 payment because it was "voluntary." Id. at 211, 214. The Court found that the plaintiff "entered voluntarily upon the negotiation with the defendants, and subsequently paid the redemption money without any constraint which would in law change the voluntary character of the payment." Id. at 213. The standard set forth in Radich (quoted by City of Vicksburg v. Butler and Al in its Appellants' Brief) for determining whether a payment is voluntary is still valid today. It is the application of the standard to the facts which compels a different result here. Nothing like the facts in Radich are present in the instant case. As an aside, while the Supreme Court's appears to have properly applied the quoted standard to the facts in Radich, it cannot escape notice that the language and tone in the Court's opinion reflect bitter post-civil War sentiments. See, e.g., Radich, 95 U.S. at 213 ("The sale of the cotton was to the Confederate States; the money paid and goods delivered for its redemption were for the benefit of those States, to assist them in their war against the government and authority of the United States. The money paid and the goods delivered constituted, therefore, nothing less than a direct contribution to the support of the insurgents: they gave aid and comfort to the enemy. No demand arising out of such a transaction can have any standing in the courts of the Union."). 14

21 good conscience the receiver should not claim or retain, and no adequate opportunity is afforded the payor to effectively resist the demand. Id. (citations omitted); Id. 105 (fear of "serious business loss" constitutes duress); Id. 106 (payment made "to prevent an injury to business" is involuntary, entitling party to recovery); see also Ross v. City of Geneva, 357 N.E.2d 829, 836 (Ill. App. 1976) ("[W]here money is paid under pressure of severe statutory penalties or disastrous effect to business, it is held that the payment is involuntary and that the money may be recovered."). 4 For example, in Glantz Contracting Co. v. General Elec. Co., 379 So.2d 912 (Miss. 1980), the general contractor (GE) overpaid its subcontractor (Glantz) for Court was faced with the question of whether a prime contractor's overpayments to a subcontractor were "voluntary." The contract between GE and Glantz included an amount to be paid for Glantz's home office administrative and operating expenses, even though such overhead was not directly attributable to its work at the Space Center. After paying Glantz such amounts, GE sued to recoup them. Id. at 914. Glantz argued that GE's recovery of its overpayments was barred by the volunteer rule. After reciting the definition of "voluntary payment" set out above, the Court stated that "business necessity" could be a sufficient "compulsion" for the payments, and noted, among other things, that there was significant pressure on the contractors to complete the project on time. Id. at 918. The Court held that the volunteer payment doctrine was not applicable to the GE - Glantz 4 It has long been held that where the only alternative is "to submit to an illegal exaction or discontinue business[, such] circumstances evidencing pressure or duress under which money or other value is parted with have never been regarded as embraced within the rule of voluntary acts within the meaning of the maxim 'Valenti non fit injuria. "' New Orleans & NE. R. Co. v. Louisiana Const. & Imp. Co., 33 So. 51, 55 (La. 1902) (citing Swift & Courtney & Beecher Co. v. US., 111 U.S. 28, (1884)). 15

22 contract, and that the trial court committed no error in ruling that GE had not waived its rights to recoup the overpayments under the volunteer rule. As conclusively shown above, BWS presented clear, uncontradicted evidenct that it made the overpayment under duress. 3. Whether BWS made the overpayment to Al under duress is a question of fact decided by the trial court in a bench trial, and the trial court did not commit "manifest error" in not barring BWS's recovery based on the volunteer rule. Whether a party's over-payment was made voluntarily or under duress is a question of fact. Glantz Contracting Co. v. General Electric Co., 379 So. 2d 912, (Miss. 1980) ("[T]he determination of whether payments are made on a voluntary basis depends on the facts of the particular case and whether such facts indicate an intent on the part of the payor to waive his rights."); Armstrong v. Miss. Farm Bureau Cas. Ins. Co., 66 So. 3d 188, 192 (Miss. App. 2011) (holding that waiver is question of fact) (citations omitted). 5 Where, as here, a circuit judge conducts a bench trial, his "findings of fact are afforded deferential treatment... [ and] are not to be disturbed unless manifestly wrong or clearly erroneous." University of Mississippi Med Center v. Pounders, 970 So. 2d 141, 147 (Miss. 2007) (citations omitted). Al's failure to present argument to the trial court regarding the volunteer rule prevented the trial court from ruling on the issue. That aside, the fact that the trial court did not bar BWS's recovery based on the volunteer rule does not constitute manifest error. See 25 Am. Jur. 2d Duress and Undue Influence 35 (Feb. 2016) ("[W]hether duress exists in a particular transaction is usually a matter of fact. Thus, ordinarily, in a case involving duress, the following matters are questions of fact: whether statements were such as to deprive a person of the exercise of his or her free will and thus constitute duress, whether a party acted as a reasonably prudent person in yielding to duress, and whether a person charging duress acted as a reasonably prudent person in parting with consideration under duress, in view of an alleged reasonable alternative."). 16

23 B. The subcontract between Al and BWS is unambiguous and includes the plans and specifications which set out the subcontract work. Notwithstanding Al's emphasis on the volunteer rule, the trial court's interpretation and application of the subcontract between Al and BWS is the pivotal issue on appeal. Here, as with regard to the first "question presented," Al's characterization of its second argument for reversal is inaccurate: "Did the Circuit Court err in holding that the subcontract included the work specifically excluded in the bid?" (Emphasis added). The problem with the second "question presented" is that the scope of the subcontract did include the work which Al contends its bid excluded as a matter of basic contract law. That is, the subcontract work was not excluded in Al's bid. 1. The trial court properly applied governing rules of contract interpretation. The rules for interpreting contracts are well established. First, the court is to determine whether the contract is ambiguous; if it is not, then it must be enforced as written, and parol evidence will not be considered. Epperson v. SouthBank, 93 So. 3d 10, 16 (Miss. 2012) ( citations omitted). The trial court expressly found that the subcontract was unambiguous. The fact that Al disagreed about the plain provisions of the subcontract does not create ambiguity. "The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law." Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So. 2d 400, 404 (Miss. 1997). 2. The trial court properly held that the plans and specifications were part of the subcontract between Al and BWS. With regard to construction contracts such as the one at issue in this case, "where a 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." Wells v. Price, 17

24 102 So. 3d 1250, 1257 (Miss. App. 2012) (quoting Roberts v. Robertson, 100 So. 2d 586, 588 (Miss. 1958)). In this case, the trial court followed Mississippi law in interpreting the scope of the contract between BWS and Al to include the plans and specifications. The clear and irrefutable evidence presented - both documentary and by the testimony of Mr. Humphrey - mandated the trial court's finding. 3. Marisco's failure to read the plan specifications has no effect on the case. At trial, Mr. Marisco testified that he did not actually read the plan specifications before he submitted Contractors' bid. (R.E. 0099). However, this does not change the outcome of this case. As this Court has held many times, to permit a party to admit that he signed his contract but deny that it expresses the agreement he made would destroy the value of all contracts. Bushing v. Griffin, 542 So. 2d 860, 865 (Miss. 1989); see Hicks v. Bridges, 580 So. 2d 743, 756 (Miss. 1991) (holding that one "cannot avoid a signed, written contract on grounds that he did not read it"). C. The trial court properly rendered judgment against Al Fire Sprinkler, LLC. A 1 's last "question presented" asks whether "the trial court err[ ed] in rendering judgment against a party not properly named in the Complaint and not a party to the contract which was allegedly breached?" Contractors entered into the subcontract with BWS. However, the evidence showed that after BWS demanded that Contractors perform the work under its subcontract, and during the time it was forced to pay VFP and ADS to do that work instead of Contractors, Marisco dissolved Contractors and formed Sprinkler the very next day, changing the name of the company by deleting the word "Contractors." (R.E ). Neither Contractors nor Sprinkler has bylaws, an operating agreement, or any corporate records such as minutes of meetings. (R.E ). Finally, Sprinkler and Contractors both do fire protection 18

25 work, and Sprinkler uses the same tools and equipment that Contractors used before its dissolution. (R.E ). Although the trial court did not make overly specific findings of fact regarding this issue, his ruling on the record makes clear that he considered this evidence in granting the judgment against Sprinkler. (R.E. 0136). Where a trial court "fails to make findings on issues of fact, this Court assumes that the issues were resolved in favor of the appellee. Bryant v. Cameron, 473 So.2d 174, 179 (Miss.1985). There is ample factual evidence in the record for doing so here, and well established law to support the trial court's ruling based on those facts. Time and again, the Mississippi Supreme Court has disapproved of corporate assetstripping as a debt-avoidance measure. See Morris v. Macione, 546 So. 2d 969, 971 (Miss. 1989) ("A corporate obligor and those who control it may not with impunity dissolve the corporation in a debt avoidance maneuver and cause its assets to be transferred to a new successor corporation. This is so whether the debt arises in contract, quasi-contract, or tort."); Stanley v. Mississippi State Pilots of Gulfport, Inc., 951 So. 2d 535, 539 (Miss. 2006) (same). In Morris, the creditor was permitted to hold his judgment against the dissolved corporation, the successor corporation, the successor corporation's shareholders, and any future successor. Morris, 546 So. 2d at In Stanley, the creditor was permitted to maintain his judgment against the successor corporation and its directors. Stanley, 951 So. 2d at 537. Additionally, where, as here, the recipient of assets is a company or corporation and "it is unclear from the record whether the value of the transferred assets would equal the amount of the judgment, it is necessary to discuss the alternative doctrine of 'continuity of enterprise."' Stanley, 951 So. 2d at 539. In such circumstances, the finder of fact is to determine whether to hold the successor corporation liable after considering the following factors: 19

26 (I) whether only one corporation remains after the transfer of assets; (2) identity of stock, shareholders, and directors between the two corporations; (3) retaining the same employees; ( 4) retaining the same supervisory personnel; ( 5) retaining the same business facilities in the same physical location; ( 6) offering the same services; (7) retaining the same name; (8) continuity of assets; (9) continuity of general business operations; and (10) whether the successor holds itself out as the continuation of the previous enterprise. Id. at 540 ( citation omitted). The continuity of enterprise doctrine deals "with cases that concern liability as it relates to debts owed by the predecessor when the successor takes on the identity of the predecessor company in every way except taking responsibility for the predecessor's debts." Paradise Corp. v. Amerihost Dev., Inc., 848 So. 2d 177, (Miss. 2003). As shown above, all of the factors above are present in this case. Indeed, the only thing that changed between Contractors and Sprinkler is the removal of one word: Contractors. This Court should affirm the trial court's determination that the Judgment should be borne by the successor company to Al Fire Sprinkler Contractors, LLC-Al Fire Sprinkler, LLC. CONCLUSION Al's argument regarding the "volunteer rule" should not be considered by this Court because the issue was not presented to the trial court for its consideration, and is raised for the first time on appeal. Even if the Court does consider the issue, the uncontradicted evidence presented at trial by BWS establishes that it made the overpayment to Al under duress. Also, whether BWS made the overpayment under duress is a question of fact which can be reversed only if the trial court committed manifest error, which is clearly absent here. The clear and conclusive evidence presented at trial established that the subcontract between Al and BWS included the clean agent system and the water storage tank. These items were clearly included in the plan specifications prepared by JBHM Architects, which are, in turn, expressly referred to by and incorporated into the contract. The trial court did not err in ruling 20

27 that the subcontract between Al and BWS is unambiguous, and that it included the plans and specifications which set out the subcontract work for which A 1 was responsible. Finally, the trial court properly rendered judgment against Al Fire Sprinkler, LLC. Sprinkler was the successor company to Contractors, employing the same people, using the same tools and equipment, and otherwise being a mere continuation of Contractors, which the trial court found to have breached the subcontract with BWS. BWS respectfully requests that this Court affirm the trial court's judgment of May 27, 2015 in all respects. Dated this, the 23rd day March, B.W. SULLIVAN BUILDING CONTRACTOR, INC., APPELLEE By: Isl Brian R. Bledsoe Brian R. Bledsoe COUNSEL: Carey R. Varnado (MSB # 6593) cvamado@mpvlaw.com Brian R. Bledsoe (MSB # ) bbledsoe@mpvlaw.com MONTAGUE, PITTMAN & VARNADO, P.A. Post Office Drawer 1975 Hattiesburg, Mississippi Telephone: Facsimile:

28 CERTIFICATE OF SERVICE I hereby certify that I have this day electronically filed the foregoing with the Clerk of the Court using the MEC System which sent notification of such filing to the following counsel of record: H. Richard David, Jr., Esq. Jernigan Copeland & Anderson, PLLC Post Office Box 2598 Ridgeland, Mississippi rdavis@jcalawfirm.com I have also served a true and correct copy of same by U.S. Mail, postage pre-paid, on the following non-mec participant: Honorable Prentiss G. Harrell Circuit Court Judge Post Office Box 488 Purvis, Mississippi This the 23rd day of March, /s/ Brian R. Bledsoe Brian R. Bledsoe 22