Family Dollar Stores of Miss., Inc. v. Montgomery, et al.
| Docket Number: | 2005-CA-00126-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-12-2006 Opinion Author: SOUTHWICK, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Property damage - Apportionment of fault - Section 85-5-7 - Indemnity - Apportionment of fault to nonparty - Building valuation Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Non Participating Judge(s): IRVING, J. Procedural History: Bench Trial Nature of the Case: CIVIL - PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 04-27-2004 Appealed from: Jefferson County Circuit Court Judge: Lamar Pickard Disposition: JUDGMENT FOR MONTGOMERY FOR $211,786.28. APPORTIONED TO FAMILY DOLLAR FIFTY PERCENT, BOWMAN THIRTY PERCENT, TURNER TWENTY PERCENT. Case Number: 2002-97 |
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| Party Name: | Attorney Name: | |||
| Appellant: | JOE SCHICKE AND JEAN SCHICKE; Family Dollar Stores of Mississippi, Inc. |
PHIL R. HINTON |
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| Appellee: | DANIEL BRADLEY; Charles N. Montgomery, Jr. and Bowman Electric Services, Inc. | 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: | Property damage - Apportionment of fault - Section 85-5-7 - Indemnity - Apportionment of fault to nonparty - Building valuation |
| Summary of the Facts: | Patrons and employees of a Family Dollar store in Fayette brought suit for injuries sustained when the roof of the store partially collapsed during an expansion project. The personal injury claims were settled prior to trial. The remaining parties include the building owner, the contractor, and Family Dollar. The circuit court, after a bench trial, allocated fault to all defendants, refused to order the contractor to indemnify Family Dollar, and established the amount of damages. Family Dollar appeals, and the building owner, Charles Montgomery, cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Apportionment of fault The court allocated half the fault for the damages to Family Dollar. The liability arose from a contract between Family Dollar and the contractor, Montgomery. In the form contract, a blank for designating an architect was completed by identifying Family Dollar as filling that role. There was no description of the architect’s duties. The court accepted expert opinion that Family Dollar as the designated architect breached its implied duties by failing to advise the contractors concerning the temporary shoring of the structure. Family Dollar argues that neither itself nor the contractor intended for there to be an architect on the project. Further, Family Dollar argues that since the contract provided no duties for whomever was named architect, expert testimony as to an architect’s general responsibilities could not import such duties into the silent contract. It is a question of fact of whether Family Dollar was identified as the architect in this contract simply as a mistake when the form was being completed. Family Dollar made that argument, but the trial court never addressed it. That the clear language of a contract does not accurately reflect the intentions of the parties is a proper issue for consideration. Regardless of the answer to the unresolved question of whether naming Family Dollar as the architect in the construction project was a mutual mistake, even as architect, Family Dollar would not have had the duty that is the basis for the liability assigned to it. Consequently, the construction contract was an improper source for liability. The court also found that Family Dollar had duties relevant to this litigation based upon its lease. The lease gave Family Dollar the right to make alterations to the premises, but it had to acquire Montgomery’s consent to make “structural changes,” consent that was not to be withheld unreasonably. By merging the lease responsibilities with the perceived architect duties, the trial court never determined whether Family Dollar strictly as a lessee had breached its obligation to its landlord that the alterations be made in a workmanlike manner and in compliance with all applicable building codes. Family Dollar’s possible breach of the lease is an issue for remand to the trial court. Also an issue on appeal is whether the absence of a specific negligence claim against Family Dollar in the complaint prevented it from being assigned any fault in the accident. Family Dollar argues that it cannot be assigned comparative fault unless it is considered a tortfeasor as opposed to a breaker of contracts. Section 85-5-7 defines comparative fault as an act or omission of a person which is a proximate cause of injury to another, including, but not limited to, negligence, malpractice, strict liability, absolute liability or failure to warn. If assuring a workmanlike performance during renovations did not require Family Dollar to participate actively in the construction, such as by supervision, it might not be a joint tortfeasor with those who were working on the renovations. If Family Dollar breached the lease but was not a joint tortfeasor, it may be entitled to indemnification. Issue 2: Indemnity Family Dollar argues that the trial court erred in denying its indemnity claim against the contractor, because the construction contract placed all risk on the contractor and required him to deliver a completed project. Since the Court has reversed the finding regarding an architect’s duties and remanded for further proceedings, the denial of indemnity should be reconsidered in light of the conclusions that must be reached as to whether Family Dollar failed to sustain its duties as lessee. Issue 3: Apportionment of fault to nonparty Montgomery argues that fault should not have been apportioned to the subcontractor who removed the load-bearing wall and who is not a party to this litigation. Assigning fault to participants in an injury who are absent from the litigation is proper. There was evidence that the subcontractor’s employees were the only individuals working on the renovation project when the roof collapsed. The court’s finding that the subcontractor was principally responsible for the roof collapse is supported by the record. Issue 4: Building valuation The court was presented with different estimates of value and costs of repair. Montgomery argues that Family Dollar’s appraiser erred in using a sale comparison approach and not an income stream approach. Damages relating to a contract that is terminable at-will is a factual issue to be determined by the fact-finder. The damages awarded should place Montgomery in the position he would have been in but for the breach of his contract. There are several recognized methods of valuing business property. The trial court chose among those upon which evidence was offered. The goal in this part of the litigation was to determine the value of what Montgomery had before the damage and to place him back in that position. Total damages were awarded to Montgomery by considering various methods of appraisal. There was no fundamental error in the choices that the trial court made. |
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