v. CAUSE NUMBER: 2010-TS-00020

Similar documents
IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI WILLIAM M. MILEY, JR.

IN THE SUPREME COURT OF MISSISSIPPI NO.2011-CA-01274

APPEAL FROM THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI, FIRST JUDICIAL DISTRICT, CAUSE NO.: A

APPEAL FROM THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI, FIRST JUDICIAL DISTRICT, CAUSE NO.: A

THOMAS P. DORE, ET AL., SUBSTITUTE TRUSTEES. Wright, Arthur, Salmon, James P. (Retired, Specially Assigned),

REPLY BRIEF OF APPELLANT

BRIEF OF THE APPELLANT

E-Filed Document Apr :32: TS Pages: 10 IN THE SUPREME COURT OF MISSISSIPPI REGINA DIANE WEATHERS

SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI. No CP-018S2 JOAN HANKINS RICKMAN

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAUSE NO CA APPEAL FROM THE CIRCUIT COURT OF ATTALA COUNTY, MISSISSIPPI

IN THE SUPREME COURT OF MISSISSIPPI

APPELLANT S RESPONSE TO APPELLEE S MOTION FOR REHEARING

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY BRIEF OF APPELLANT C.D.

IN THE SUPREME COURT OF MISSISSIPPI 2013 CA STRIBLING INVESTMENTS, LLC. Appellant VS. MIKE ROZIER CONSTRUCTION COMPANY, INC.

IN THE SUPREME COURT OF MISSISSIPPI CASE NO CA COA

IN THE SUPREME COURT OF MISSISSIPPI JACKSON COUNTY BOARD OF SUPERVISORS

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA-01555

BRIEF OF APPELLANT APPEAL FROM THE DECISION OF THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM v. Case No. 5D

BRIEF OF THE APPELLANT

FINAL ORDER AFFIRMING TRIAL COURT. the trial court s Final Judgment entered July 16, 2014, in favor of Appellee, Emergency

IN THE SUPREME COURT OF MISSISSIPPI CASE NO IA SCT

REPLY BRIEF OF APPELLANT

By:!J.~ PILED. MOTIONt OCT 1 g 2016 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CP COA APPELLANT WALTERPOOLE,JR.

UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND. No September Term, 2015 SABIR A. RAHMAN. JACOB GEESING et al.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT July Term 2013

RAY CULLENS IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI APPELLANT NO KA-0854-COA APPELLEE BRIEF OF THE APPELLANT

IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI REPLY BRIEF OF APPELLANT, STEVE RUTH

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Petitioner Z Financial, LLC, appeals both the trial court s granting of equitable

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI FILED MAY Of nee of the Clerk Suprorne Court Court of Appalll..

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CAUSE NO IA PEGGY ANN THORNTON, as Widow of GREGORY THORNTON, DECEASED

BRIEF OF THE APPELLANT

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE NO CA CITY OF JACKSON, MISSISSIPPI APPELLANT

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS. Division I Opinion by JUDGE KAPELKE* Taubman and Bernard, JJ., concur. Announced February 3, 2011

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON June 16, 2010 Session

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI KEITH DURAN SANDERS STATE OF MISSISSIPPI NO KA-0062S-COA

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE APRIL 4, 2002 Session

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY. Court of Appeals No. L Trial Court No.

Appellant, CASE NO.: CVA

OF FLORIDA. ** Appellant, ** vs. CASE NO. 3D ** LOWER TRIBUNAL NO TRIPP CONSTRUCTION, INC., ** Appellee. **

CHRISTOPHER L. KINSLER Lawrenceville, GA Associate Assistant Attorney General 150 E. Gay St. 16 th Floor Columbus, Ohio 43215

IN THE COURT OF APPEALS OF GEORGIA

IN THE SUPREME COURT OF MISSISSIPPI ~f:p 0 I PLAINTIFF APPELLAN]COURTOFAPP~S cpt APPEAL FROM THE CIRCUIT COURT OF ALCORN COUNTY, MISSISSIPPI

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY. Trial Court No. CVI Appellant Decided: April 23, 2010 * * * * *

Third District Court of Appeal State of Florida

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT. Plaintiff-Appellee, : No. 11AP-266 v. : (C.P.C. No. 05CR )

BRIEF OF THE APPELLANT

UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND. No September Term, 2015 ARTHUR LAMAR RODGERS STATE OF MARYLAND

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth Of Kentucky Court of Appeals

DOCKET NO. AP ) ) ) ) ORDER ) ) ) ) ) This case arises out of a Forcible Entry and Detainer Action that Appellee Rowell, LLC

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI BRIEF OF APPELLEE

SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2008-TS-01454

STATE OF MICHIGAN SIXTEENTH JUDICIAL CIRCUIT COURT. Case No AE OPINION AND ORDER

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MISSISSIPPI COURT OF APPEALS 2014-CA COA STATE OF MISSISSIPPI MOTION FOR REHEARING

J cj g f NUMBER 2007 CA 1493

ARKANSAS COURT OF APPEALS

No. 44,995-WCA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * Versus * * * * * Ryan E. Gatti, Workers Compensation Judge * * * * *

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs January 14, 2009

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI FILED JUL OFFICE OF THE CLERK SUPREME COURT COURT OF APPEALS. BRIEF FOR Appellant BY:

REPLY BRIEF OF APPELLANT

BRIEF OF THE APPELLANT

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

BRIEF OF THE APPELLANT

No. 45,945-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * Versus * * * * *

2015 IL App (5th) U NO IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

RESPONSE TO MOTION FOR REHEARING FILED ON BEHALF OF HOWARD INDUSTRIES, INC.

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT. Clay O. Burris, : (REGULAR CALENDAR) D E C I S I O N. Rendered on November 19, 2013

Commonwealth of Kentucky Court of Appeals

CASE NO. 1D Roy W. Jordan, Jr., of Roy W. Jordan, Jr., P.A., West Palm Beach, for Appellant.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. v. Case No. 5D

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM v. Case No. 5D

NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT **********

IN THE SUPREME COURT OF MISSISSIPPI CONTINENTAL CASUALTY COMPANY. v. No CA ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY

ARKANSAS COURT OF APPEALS

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE SUPREME COURT OF THE STATE OF OREGON

Appealed from the Office of Workers Compensation District 6. Livingston LA. Judgment Rendered February Attorney for.

STATE OF MICHIGAN COURT OF APPEALS

No CR No CR. FREDDY GONZALEZ, Appellant. vs. THE STATE OF TEXAS, Appellee APPELLANT S BRIEF

BRIEF OF THE APPELLANT

Court of Appeals of Ohio

IN THE COURT OF APPEALS OF INDIANA

The appellee, Kettler Brothers, Inc., is a builder which has. been in the business of building and selling residential townhouses

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Circuit Court for Queen Anne s County Case No. C-17CR UNREPORTED

IN THE SUPREME COURT OF MISSISSIPPI MISSISSIPPI DEPARTMENT OF REVENUE V. NO CA HOTEL AND RESTAURANT SUPPLY MOTION FOR REHEARING

No. 47,320-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * Versus * * * * * * * * * *

STAND-UP MRI OF ORLANDO, CASE NO.: CVA

Third District Court of Appeal State of Florida

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TROY ANTHONY WILLIAMS STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT. Plaintiff-Appellee, : No. 15AP-776 v. : (M.C. No CRB 11939)

IN THE SUPREME COURT OF FLORIDA CASE NO.: SC THIRD DCA CASE NO.: 3D06-458

Transcription:

IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CHARITY HOHM-WHALEY PLAINTIFF-APPELLANT v. CAUSE NUMBER: 2010-TS-00020 FREDDIE PARSON DBA PARSON CONSTRUCTION COMPANY DEFENDANT-APPELLEE Appeal From the Circuit Court of Warren County, Mississippi BRIEF OF PLAINTIFF-APPELLANT CHARITY HOHM-WHALEY NO ORAL AGRUMENT B. RAY THE~ II MSBAR#~ P.O. BOX 545 MAGEE, MS 39111 PHONE: (601) 849-9551 FAX: (601) 849-9557

IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CHARITY HOHM-WHALEY PLAINTIFF-APPELLANT V. CAUSE NUMBER: 2010-TS-00020 FREDDIE PARSON DBA PARSON CONSTRUCTION COMPANY DEFENDANT-APPELLEES CERTIFICATE OF INTERESTED PERSONS I, B. Ray Therrell, II, Attorney for Charity Hohm-Whaley, hereby certifies that the following listed persons have an interest in the outcome of this case. Charity Hohm Whaley... Appellant 822 Main Street Vicksburg, Mississippi 39183 Freddie Parson... Appelllee Parson Construction Company 539 Hugo Street Vicksburg, Mississippi 39183 B. Ray Therrell, II, (MSB No. 99958)... Attorney of Record for Appellant Mississippi Employment Security Commission Post Office Box 1699 Jackson, Mississippi 39215-1699 Wren Way... Attorney of Record for Appellee P.O. Box 1113 Vicksburg, Mississippi 39183 Honorable Isadore W. Patrick Warren County Circuit Court Judge P.O. Box 351 Vicksburg, Mississippi 39183 Dated this the 27th day of August, 2010. ~/1/V B.Ra;ri1eITeilj~. Attorney of Record for Appellant

TABLE OF CONTENTS PAGE Certificate of Interested Persons Table of Contents ii Table of Cases III Introduction 1 Statement of Issue 1 Statement of the Case Summary of the Argument 3 Argument 5 Conclusion 7 Certificate of Service 8 ii

TABLE OF CASES CASES PAGE NO. Gerodetti v. Broadacres, 363 So. 2d 265 (Miss. 1978) Theobald v. Nosser, 752 So. 2d 1036 Wright v. Stevens, 445 So. 2d 791 (Miss. 1984) 6 5 6 iii

STATEMENT OF ISSUES I. Whether the Warren County Circuit Court erred in granting the Appellant a Judgment not Withstanding the Verdict or granting a new,trial. 2. Whether the County Court of Warren County erred in not considering the all the evidence presented regarding the breach of contract by the Ap~pellee when awarded the judgment for the Appellant. STATEMENT OF THE CASE On November 12,2003, Charity Hohm-Whaley (also hereafter referred to as "Appellant") entered into a contract with Freddie Parson d/b/a Parson Constn,1ction Company (also hereafter referred to as Appellee) to perform services to a histon'c guest house located at the Appellant's home. Under the terms of the contract, da,ted November 12,2003, the Appellee was to perform three main tasks: 1. Renovation of the windows on the guest house; 2. Repair/replacement of the roof of the guest house along with cornice work matching the windows of the building; and 3. Brick and masonry work on the exterior and interior of the window facing. (Vol. 1, p. 8). The original contract price was $13,000.00. The Appellant was to tender a down payment of $9,000.00 with an additional $2,000.00 when the roof and cornice material were delivered and $2,000.00 at the finish of the renovation. (Vol.,1, p. ill) (Vol. 2, p. 5). This renovation was required to be completed in order for the Appellant to retain her home owner's insurance. (Vol. 2, p. 7). The guest house

being renovated is approximately 170 years old. Therefore, certain specifications must be met in order to have the renovation approved. Vol. 2, p. 7-9, 67). The work was to be completed by December 20,2003. In fact, the Appellant refinanced her house in order to have the work done. (Vol. 2, p. 7). She paid a down payment of$9,000.00 and an additional payment of $2,000.00 of the contract price, totaling $11,000.00. Appellee replaced the roof and performed some masonry work. However, the windows for the building were never bought or installed, and much of the work performed was defective and incomplete. On October 5, 2006, the Appellant filed a Complaint against the Appellee for breach of contract, tortuous breach of contract, and a breach of duty of good faith and fair dealing under the terms of the contract, executed on November 12,2003. (Vol. I, p. 5-3). A hearing was held on July 11,2007, before Honorable John S. Price, Jr., County Court Judge for Warren County, Mississippi. (Vol. 2, p. 2-\35). On July 18, 2007, the County Court awarded the Appellant the amount of$i,500.00, plus interest. (Vol. I, p. \3). Counsel for the Appellant, Eugene A. Perrier, filed a Motion for a judgment notwithstanding the verdict (J.N.O.V.), and/or new trial on July 26, 2007. ( Vol. I, p. 14-16). On January 23, 2008, this motion was denied. (Vol. I, p. 29). On February 22, 2008, present counsel for the Appellant, B. Ray Therrell, II, filed an appeal of the denial to motion to grant the Appellant a J.N.O.V. and lor new trial to the Warren County Circuit Court. (Vol. I, p. 30-31). On November 23,2009, Judge Isadore Patrick, Warren County Circuit Court Judge, affirmed the decision of 2

the County Court of Warren County and the denial of the Motion. (Vol. I, p. 38-40). On December 23, 2009, the Appellant filed an appeal to this Honorable Court. SUMMMARY OF THE ARGUMENT This appeal is taken on the Order of the Warren County Circuit Court denying the Appellant a IN.O.V. and new trial in this matter. The Circuit Court's Order affirming the judgment of the County Court of Warren County awarding the Appellant may have ruled upon under the applicable law in this matter, but the Courts' application of the law to the facts of this matter are incorrect. In the present case, the testimony and evidence presented before the County Court showed a clear breach of duty and good faith on the part of the Appellee. At the hearing, the Appellant testified that although a roof was placed on the building, there still was rotten wood present and the roof leaked. In addition, while some masonry work was done, the testimony and evidence reveals that it was never completed. Most important, the windows were never installed on the building. In fact, they the windows were never purchased. It is the contention of the Appellant that by affirming the Judgment of the County Court, the Circuit Court erred by failing to take in consideration the overwhelming evidence supporting the need for not only a new decision, but a new hearing to properly examine the facts to determine proper damages. Although the Courts found the Appellee had breached the contract., the Circuit Court Order and the County Court Judgment essentially sets off the $2,000.00 of the initial contract price and gives credit to the Appellee without the Appellee asserting any such claim or 3

defense. In fact, the record tends to indicate that the County Court also essentially raised the defense of inability to perform the contract without the Appellee raising or pleading such defense. While it is understandable that the Courts want to place the Appellant in a position she would have been in before the breach, the application of the law does not remedy the Appellant's situation given the entire facts of this matter. Furthermore, the Courts failed to consider the lack of evidence of how and where the $11,000.00 paid on the contract was spent, or where the additional $3,000.00 the Appellee testified he was holding for the windows calculated into the judgment, especially, given the fact that the windows were not purchased or installed. Even if the Courts felt the Appellee had performed part ofthe contract, the fact remains that no windows were ever installed or even delivered to the Appellant's residence. The Appellant paid $11,000.00 on the $13,000.00 contract and had a reasonable expectation of having windows placed in the guest house, or at the very least, delivery of the windows to her property or a reasonable refund of the money she had already tendered pursuant to the contract. 4

ARGUMENT 1. Whether the Warren County Circuit Court erred in granting the Appellant a Judgment not Withstanding the Verdict or granting a new trial. 2. Whether the County Court of Warren County erred in not considering the all the evidence presented regarding the breach of contract by the Appellee when awarded the judgment for the Appellant. (Since the Circuit Court Order mirrors the Judgment of the County Court of Warren County, Counsel for the Appellant has combined both issues into the Argument.) In the present case, it is clear the Appellee breached the contract for renovation of the out building located on the Appellant's Vicksburg property. However, what is in dispute is the damages awarded to the Appellant in the amount of $1,500.00. The Circuit Court cites Theobald v. Nosser, 752 So. 2d 1036 (Miss. 1999), stating its purpose is to place the injured party in the same position as if the breach had not occurred. In affirming the order and not granting a new trial, Circuit Court erred by failing to take in consideration the overwhelming evidence supporting the need for not only a new decision, but a new hearing to properly examine the facts to determine proper damages. The appellant paid $11,000.00 of the contract price. (Vol. 2, p. 5, 68). 5

Under the terms of the contract, dated November 12,2003, the Appellee was to perform three main tasks: 4. Renovation ofthe windows on the guest house; 5. Repair/replacement of the roof of the guest house along with cornice work matching the windows of the building; and 6. Brick and masonry work on the exterior and interior of the window facing. (Vol. I, p. 8). The roof was completed before the December 20, 2003 deadline. (Vol. 2, p. 9-10). The Appellee then did some work around the exterior windows frames, but never fully completed the work. (Vol. 2, p. 12, 17). The windows were never installed or purchased. (Vol. 2, p. 12,14,71). The Appellee argued that he never installed the windows because he had received an initial quote of $1,600.00 for the windows, but was later given a much higher quote of$5,350.00 from Vicksburg Woodworks. (Vol. 2, p. 74). However, the Appellee made no attempt to find new windows or negotiate the price. Hl~ further testified that he had set aside $3,000.00 of the $11,000.00 to pay for the windows. (Vol. 2, p. 84). Under Wright v. Stevens, 445 So. 2d 791 (Miss. 1984), the measure of damages is the difference in the contract price and the cost of completing or performing the contract. Moreover, the constructing of a building or renovation in "violation of the contract" is difference from damages for not completing the contract. Wright v. Stevens, 445 So. 2d 791 (Miss. 184). "The measure of damages for defective performance of a contract is generally the costs to the injureq party in bringing the subject to the contract within contract's specifications." Gerodetti v. Broadacres, 363 So. 2d 265 (Miss. 1978). Based on these rulings, the Circuit.Court 6

affirmed the County Court because they reasoned the Appellant could have the work completed for 3,500.00. (Vol. I, p. 39). What the Courts fail to take into consideration is the lack of evidence of how and where the $ I 1,000.00 paid on the contract was spent, or where the additional $3,000.00 the Appellee testified he was holding for the windows calculated into the judgment, especially, given the fact that the windows were not purchased or installed. It is the contention of the Appellant that the cited cases would properly apply to this matter, but would show that the Appellant would be unable to replace the windows based on the Courts' decisions. Furthermore, the remaining $2,000.00 under the contract was to be paid upon completion of the contract. The Circuit Court Order and the County Court Judgment essentially sets off this $2,000.00 of the initial contract price and gives credit to the Appellee without questioning the giving any Appellee asserting any such claim or defense. The issue is not whether the Appellee breached the contract, but what damages the Appellant is entitled to receive because of his breach. The Appellee failed to show he did everything in his power to complete the contract. The Appellant is entitled to recover from the Mr. Wren has the burden to show he was willing, yet nothing in the Record would indicates any such readiness or willingness to accept suitable work based on his experience and qualifications. CONCLUSION In the instant case, the Appellant is entitled to a judgment based on the measure of work performed by the Appellee and an amount sufficient to allow her to replace the windows that were not installed. The judgment for $ I,500.00 ignores the 7

testimony and evidence of this matter; and thus, this Honorable Court should reverse and the decision in this matter, and award proper damages to the Appellant. Respectfully submitted this the 13 th day of February 2002. CHARITY HOHM-WHALEY 'f,~,,~j B. RAY TH RRELL, II CERTIFICATE OF SERVICE I, B. Ray Therrell, II, Attorney for the Mississippi Employment Security Commission, hereby certify that I have this day mailed, postage prepaid, and a true and correct copy of the foregoing to the Honorable Wren Way, P.O. Box 1113, Vicksburg, Mississippi 39183, and Honorable Isadore W. Patrick, Warren County Circuit Court Judge, P.O. Box 351, Vicksburg, Mississippi 39183. This the 27th day of August, 2010. ~~ B. RAY THERRELL, II B.RAYTHE~ MSBARNO._ P.O. BOX 545 MAGEE, MS 39111 PHONE: (601) 849-9551 FAX: (601) 849-9557 8