Dr. Paul Alan Little and Misty Little v. Sidney Miller
| Docket Number: | 2003-CA-02199-COA | |
| Oral Argument: | 09-28-2004 | |
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| Court of Appeals: |
Opinion Date: 02-15-2005 Opinion Author: BRIDGES, P.J., Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Real property - Contract - Service of motion for summary judgment - M.R.C.P. 56(c) - M.R.C.P. 41(b) - Negligence - Misrepresentation Judge(s) Concurring: KING, C.J., LEE, P.J., MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ. Non Participating Judge(s): IRVING, J., Procedural History: Summary Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 09-17-2003 Appealed from: Jones County Chancery Court Judge: Franklin C. McKenzie, Jr. Disposition: SUMMARY JUDGMENT FOR DEFENDANT |
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| Party Name: | Attorney Name: | |||
| Appellant: | DR. PAUL ALAN LITTLE AND MISTY LITTLE |
TERRY L. CAVES |
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| Appellee: | SIDNEY MILLER | C. EVERETTE BOUTWELL |
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| Topic: | Real property - Contract - Service of motion for summary judgment - M.R.C.P. 56(c) - M.R.C.P. 41(b) - Negligence - Misrepresentation |
| Summary of the Facts: | Paul and Misty Little purchased a new house from Sidney Miller. Approximately one year later, the Littles filed an action against Miller asserting various claims of contractual breach and negligence. They later filed an amended complaint additionally seeking a declaratory judgment and rescission of the contract. On the date the trial was to begin, Miller presented a motion for summary judgment. The Littles proceeded with their case-in-chief. Afterwards, Miller renewed his motion, and the chancellor dismissed the Littles’ complaint. The Littles appeal. |
| Summary of Opinion Analysis: | The Littles argue that summary judgment was erroneously granted, because Miller failed to file his motion in compliance with M.R.C.P. 56© which requires that the motion be served at least ten days before the time fixed for the hearing. Although Miller undisputedly failed to abide by this rule, he substantively argued a motion to dismiss, and the court’s dismissal of the Littles’ complaint for lack of evidence is best categorized as an involuntary dismissal under M.R.C.P. 41(b). The Littles also argue that their claim should have succeeded on the merits because they presented ample evidence demonstrating that Miller was negligent in preparing the site for construction and that Miller misrepresented the sub-soil condition of the lot to them. The evidence presented by the Littles is insufficient to prove the breach they allege. Two witnesses testified that they did not know what work had been performed in filling the drainage feature and preparing the site for construction. Without proof of what preparatory site work was performed on the property, the Littles’ claim of negligence as to the preparation of their lot for construction is not supported by a preponderance of the evidence. The Littles also present two claims of misrepresentation, one of negligent misrepresentation and one of fraudulent misrepresentation. The proof presented by the Littles is insufficient to establish the requisite reliance as to each of these claims. The Littles claim they purchased the lot as a result of Miller misrepresenting, by not disclosing, the natural drainage feature that ran through the property and by declaring that the lot was free from sub-soil defects. Apparent from the evidence, however, is that the Littles were well aware of the problems associated with the property and only completed the purchase after making their own observations and having someone inspect the lot. Therefore, the evidence presented by the Littles is insufficient to prove by a preponderance of the evidence that they acted in reliance of a misrepresentation by Miller. |
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