Estes v. Bradley
| Docket Number: | 2004-CA-02124-COA Linked Case(s): 2004-CA-02124-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-12-2006 Opinion Author: SOUTHWICK, J. Holding: REVERSED AND REMANDED IN PART; DISMISSED IN PART |
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| Additional Case Information: |
Topic: Contract - Personal jurisdiction - M.R.C.P. 12 (h)(1) - Section 13-3-57 - M.R.C.P. 12(b)(2) & (6) - Statute of repose - Section 15-1-41 - Concealment - Section 15-1-67 - Findings of fact - M.R.C.P. 52(a) - M.R.A.P. 28 (a)(3) - Interlocutory order - M.R.C.P. 54(b) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Summary Judgment or Dismissal Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 12-02-2004 Appealed from: Alcorn County Circuit Court Judge: Paul S. Funderburk Disposition: SUMMARY JUDGMENT OR DISMISSAL. Case Number: CV03-350(F)(A) |
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| Consolidated: Consolidated with 2005-CA-01264-COA Joe Schicke and Jean Schicke v. Jerome Schmidt and Bonita Schmidt; Alcorn Circuit Court; LC Case #: CV03-350 (F)A; Ruling Date: 05/25/2005; Ruling Judge: Paul Funderburk | ||
| Party Name: | Attorney Name: | |||
| Appellant: | BILLY ESTES AND PHILLYS ESTES |
PHIL R. HINTON |
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| Appellee: | DANIEL BRADLEY, JEROME BONITA SCHMIDT | JOHN A. FERRELL, DONALD RAY DOWNS, WILLIAM WAYNE SMITH |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contract - Personal jurisdiction - M.R.C.P. 12 (h)(1) - Section 13-3-57 - M.R.C.P. 12(b)(2) & (6) - Statute of repose - Section 15-1-41 - Concealment - Section 15-1-67 - Findings of fact - M.R.C.P. 52(a) - M.R.A.P. 28 (a)(3) - Interlocutory order - M.R.C.P. 54(b) |
| Summary of the Facts: | Jerome and Bonita Schmidt purchased a lot in Corinth and contracted with Daniel Bradley to construct a house on the lot which was completed in 1994. In 1996, the Schmidts discovered that a brick above a window on the north side of the house had become loose. They asked Bradley to repair the problem. In February or December 1996, Bradley went to the Schmidts’ home, dug up the foundation, poured concrete and placed concrete piers below the house. Later, Schmidt discovered a crack about one-quarter of an inch in width in the floor of the house’s game room. The Schmidts again called Bradley, and Bradley made repairs. In 1997, the home was sold to Caterpillar, Inc., Jerome Schmidt’s employer. The Schmidts executed what in essence was a blank warranty deed and special power of attorney naming an agent to execute documents in connection with the eventual sale of the home. This document was dated on October 17, 1997. In 1998, Joe and Jean Schicke purchased the home. Their names were inserted into the warranty deed earlier signed by the Schmidts. The Schickes received a “homeowner’s disclosure statement” – executed by the Schmidts on October 9, 1997 – in which the Schmidts denied knowledge of any defects in the foundation, slabs, or floors of the house. In 2001, Billy Estes contracted to purchase the home from the Schickes. Billy and Phillys Estes are the plaintiffs. Attached to the contract was a “seller’s disclosure statement” in which the Schickes asserted that they were unaware of any prior repairs made to the foundation of the home. They also stated that the house’s foundation was not in need of repair. Later, with the aid of engineers, the Esteses discovered a number of defects in the foundation which they allege were known to the Schickes but not disclosed. The Esteses filed suit naming as defendants their sellers, the Schickes; the original owners, the Schmidts; and the builder, Bradley. The Schickes (second owners) cross-claimed against their sellers, the Schmidts, for indemnification. The Schmidts made a cross-claim against the builder for indemnification. The court granted summary judgment against the claims by the present owners, the Esteses, against the builder Bradley. The court entered an order of dismissal against the claims brought by the second and third owners, the Schickes and the Esteses, against the original owners, the Schmidts. The court granted the builder Bradley summary judgment against the claim brought by the Schmidts, who had contracted with Bradley for the construction of the home. The Esteses and the Schickes are properly before the Court on their challenges to the dismissal of their claims against the original owner, the Schmidts. The Esteses also have validly presented their appeal that entering summary judgment on their claims against the builder Bradley was error. |
| Summary of Opinion Analysis: | Issue 1: Personal jurisdiction The Schmidts are now residents of Illinois. They properly raised the absence of personal jurisdiction in their first responsive pleading as required by M.R.C.P. 12 (h)(1). The Schmidts argue that the language in the Esteses’ complaint does not state a claim by the Esteses against them since it only alleges that the Schmidts made a misrepresentation to their buyers, the Schickes, and not that they made a misrepresentation to the Estes plaintiffs, who were the next buyers. Under section 13-3-57, a tort is committed in Mississippi if the acts that cause the injury occur in this state, or if the injury itself occurs here. The current owners, the Esteses, contend in their first amended complaint that the Schmidts committed the tort of fraudulent or negligent misrepresentation. There is no dispute that all actions that would support the commission of such a tort would have occurred in Mississippi, and the injury arose here too. The second amended complaint would have fleshed out the claim that misrepresentations by the Schmidts prevented their buyers from being able to reveal the foundation defects when they later sold to the plaintiffs. This in essence is a claim of a continuing or renewed tort arising from the effects of an earlier failure to disclose. Whether the Esteses’ complaint describes a tort by the Schmidts against them need not be decided, because their motion to dismiss was under M.R.C.P. 12(b)(2) for lack of personal jurisdiction. They did not allege a failure to state a claim under Rule 12(b)(6). Having asserted that the Schmidts committed a Mississippi tort, regardless of whether it was a tort against the Esteses, the complaint sustains personal jurisdiction under the long-arm statute. Due process requires that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. The Schmidts do not seriously contest that, at the time the alleged misrepresentation was made, they had substantial contacts with Mississippi. There is no unfairness in requiring that the Schmidts respond to the claims of the present homeowner since the Schmidts will need to respond to the second owners’ claims involving the same property and the same alleged misconduct. Thus, personal jurisdiction over the Schmidts exists. Issue 2: Statute of repose The trial court also based its dismissal of the Esteses’ claim against the Schmidts because it was time-barred under section 15-1-41. The Schmidts argue that since they supplied their builder Bradley with house plans from a magazine, they were engaged in “design, planning, supervision or observation of construction, or construction of an improvement to real property” bringing them within the provisions of the statute. However, the statute protects parties such as architects, contractors, and engineers who are engaged in the construction business. The Esteses claim that the Schmidts misrepresented the condition of the home, not that they defectively designed it. The misrepresentation claim is not in repose. Alternatively, the Schmidts argue that this claim should be time-barred pursuant to the general three-year statute of limitations found in section15-1-49. The trial judge never ruled on the basis of this statute, as he instead applied the statute of repose for construction claims. This statute is appropriately addressed on remand. The court also applied the statute of repose to the builder Bradley against the claims of the second and of the current owners. Bradley as the builder is a proper party to raise this statute. The statute of repose applies even if the claimant had no reason to know of the defect in the structure before the period for suit expired. There is no evidence that Bradley was involved with the alleged misrepresentations by the Schmidts. Instead, the Esteses argue that Bradley made repairs after construction that attempted to hide a serious foundation problem. There is evidence that Bradley initiated repairs in 1996 without first discussing the work with the then-owners, the Schmidts. There is a dispute as to whether the work was done in February or December, so it is possible that suit was brought within six years of the work. There was not proof sufficient to grant summary judgment that no harm arose solely from the 1996 work, that the work was definitely a repair and not a significant amelioration, and that the work occurred more than six years before suit. Of broader significance is the relevance of Bradley’s alleged fraudulent concealment of a defect. There was testimony about somewhat secretive actions in 1996 to correct the very problem that underlies the complaints here, namely, a faulty foundation. Section 15-1-67 says that the cause of action accrues on the date that the effect of the concealment ends. The statute of repose operates independently of causes of action and by its nature bars hidden claims. Accruals of causes of action are irrelevant to its operation. Thus, the concealment statute will not affect the statute of repose. Thus, the summary judgment granted Bradley is reversed and remanded to the extent that the Schickes or Esteses present evidence that some independent injury arose strictly due to the work done within six years of suit being filed. Issue 3: Findings of fact With regard to the judgment for the Schmidts against the second owners, the Schickes, the Schickes, relying on M.R.C.P. 52(a), argue that the trial court erred in refusing to enter more detailed findings of fact and conclusions of law. There is no authority to make Rule 52(a) applicable to summary judgments or other matters that have not gone to trial. Rule 52 applies only to decisions made after some proceeding in which contested facts need to be evaluated. However, it is an overly artificial result to affirm the judgment against the Schickes because of a shortcoming in their statement of the appellate issues after the Court has found that there was personal jurisdiction for other parties’ claims due to the alleged tort against the Schickes. The Court has the right under M.R.A.P. 28 (a)(3) when an issue has not been identified in an appellant’s brief, to notice a plain error not identified or distinctly specified. There is personal jurisdiction over the Schickes’ claim against the Schmidts. In addition, the trial court erred in dismissing the Schickes’ claim against the Schmidts because it was barred under the statute of repose. Issue 4: Interlocutory order The judgment that resolved the Schmidts’ claims against Bradley is not before the Court. Since the judgment favoring Bradley over the claims made by the Schmidts is not final under M.R.C.P. 54(b), it remains subject to revision at any time before final judgment. |
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