Evans v. Clemons
| Docket Number: | 2001-CA-01819-COA Linked Case(s): 2001-CT-01819-SCT ; 2001-CA-01819-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-09-2003 Opinion Author: Southwick, P.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Contract - Partnership liability - Indispensable parties - M.R.C.P. 19 - Renovation expenses - Damages - Statutory violation - Section 67-3-17 - Hearsay - Present sense impression - M.R.E. 803(1) - Excluded witness - Jury instructions - Sufficiency of evidence Judge(s) Concurring: McMillin, C.J., Myers, Chandler and Griffis, JJ. Non Participating Judge(s): Thomas, J. Dissenting Author : Irving, J. Dissent Joined By : King, P.J., Bridges and Lee, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 06-23-2001 Appealed from: Harrison County Circuit Court Judge: Stephen Simpson Disposition: JURY VERDICT FOR CLEMONS: $250,000 ACTUAL AND COMPENSATORY DAMAGES, $100,000 PUNITIVE DAMAGES. Case Number: A2401-99-00140 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Donald Evans |
HARRY R. ALLEN; DAVID W. CRANE |
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| Appellee: | Odis L. Clemons | MACK A. BETHEA |
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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 - Partnership liability - Indispensable parties - M.R.C.P. 19 - Renovation expenses - Damages - Statutory violation - Section 67-3-17 - Hearsay - Present sense impression - M.R.E. 803(1) - Excluded witness - Jury instructions - Sufficiency of evidence |
| Summary of the Facts: | Donald Evans leased a building in the city of Gulfport to Odis Clemons for use as a nightclub. Clemons and two partners, Marvin Brundidge and Greg Dampeer, operated the property without apparent difficulty until approximately a year later. Something occurred which caused a rupture among the parties, and Clemons, Brundidge and Dampeer filed suit against Evans claiming that they had been forced out of possession of the premises and that the covenant of quiet enjoyment had been breached. A jury found against the defendant and awarded $250,000 in actual damages and $100,000 in punitive damages. Evans appeals. |
| Summary of Opinion Analysis: | Issue 1: Partnership Two of the partners, Brundidge and Dampeer, moved to be dismissed on the eve of trial. The court granted the motion on the basis that only Clemons was in privity of contract with Evans. Evans argues that because all partners were not parties to the suit, any damages the partnership itself suffered may not be recovered. Intent, control, and profit sharing form the basis for a partnership. Because the three men in this case intended to join in the business together, each had a role in the club, and all were to share in the profits, there was a partnership. If the subject matter of the litigation is partnership property, all partners must be joined. The claims made in this suit explicitly concerned enterprise operated by the three partners. Even after two partners were dismissed, the suit continued as one regarding the club, operated as a partnership, yet with only one partner remaining as a party. Therefore, the primary issue is whether the absent partners were indispensable parties for the claims over partnership damages. M.R.C.P. 19 protects the interests of the absent parties so as to ensure a disposition that is fair and complete. Since the dismissal of two partners was at their own request with no indication during the course of trial that the club's losses were no longer being litigated, the former plaintiffs' acquiescence removes the need for all partners to be present. If those individuals wish to make a claim to any award made, that would have been for them to pursue against Clemons. To the extent the dismissed individuals might have liability for a breach by the partnership, Clemons’ failure to object to the court’s dismissal makes the dismissal beyond complaint. Issue 2: Renovation expenses Evans argues that testimony should not have been admitted regarding expenses for renovating and refurbishing the building before the club opened for business. The lease provided that no rent would be paid for the first eight months, and the furnishings and equipment that would be needed to make the facility functional would become the property of Evans. Although a breach that caused the lease to end in less than three years took away part of the opportunity for Clemons to use the equipment for the entire life of the lease, an instruction informing the jury that they should consider a usage value as an additional measure of lost profits was confusing and encouraged a double recovery. This resulted in prejudicial error. Issue 3: Damages Evans argues that proof of damages was too speculative to allow accurate calculation by the jury. The plaintiff has the burden of proving damages which must be established with sufficient certainty as to remove them from the realm of mere speculation or conjecture. The damages evidence produced in this case was conflicting not only between plaintiff and defendant, but between the plaintiff and his own witnesses, including his partner, the club's designated bookkeeper. There is also a lack of documentary support for the damage claims. Clemons offered only four income and expense reports which are incomplete for failing to account for the debt service expenditures. The party seeking to prove damages must offer into evidence the best evidence available for each and every item. Therefore, the case is remanded so that at a new trial a fact-finding may be made of whether the inadequacies of the record are Evans’ fault. Issue 4: Statutory violation Evans argues that Clemons is prohibited from claiming lost profits resulting from the club's sale of beer, because Clemons did not have a license to sell beer. Section 67-3-17 requires the application for a license to contain a statement showing the name of the business, and if a partnership, firm or association, the name of each partner or member. Although the club was selling beer in violation of the licensing statutes since every partner was not listed, this does not preclude recovery. The failures of businesses to conform with general licensing requirements do not close the courthouse door to their contract disputes. Recovery is allowed under lawful contracts that are supported by lawful consideration, and the lease here was a valid contract. Issue 5: Hearsay Evans argues that the court erred in allowing hearsay testimony from a witness who testified that he heard Clemons and Evans arguing in the back room of the club without knowing the substance of the argument and that Clemons told him that Evans had threatened Clemons with a gun. A present sense impression is admissible under M.R.E. 803(1) if it describes or explains an event and is made while the declarant was perceiving the event or condition or immediately thereafter. The foundation for the spontaneity of the statement under the present sense impression exception is weak. Also, the judge never stated which exception he was using. Time is also a factor in determining whether this statement was admissible under the excited utterance exception. However, the judge did not identify this as the applicable exception. Since the case is being reversed for other reasons, the issue of this hearsay will remain open. Issue 6: Excluded witness Evans argues he was prejudiced by the court's refusal to allow a police department representative to testify. This matter does not need to be resolved, since reopening the defendant's case for this witness and the issue of the proper timing for calling the witness are unlikely to recur after remand. Issue 7: Jury instructions Evans argues that the court erred in granting two jury instructions, because they assumed his liability, took away the jury's ability to determine if the lease termination was wrongful, and constituted improper peremptory instructions. From a legal point of view the instructions were acceptable. The question of the repetition of phrases of limitation and exception for the parties can be reargued if it arises again at a new trial. Issue 8: Sufficiency of evidence Evans argues that the evidence was insufficient. However, there was sufficient evidence for jury deliberations about whether Evans interfered with Clemons' right to occupy the premises he leased and whether damages resulted. |
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