Sports Page, Inc. v. Punzo
| Docket Number: | 2003-CA-00319-COA Linked Case(s): 2003-CT-00319-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-23-2004 Opinion Author: Myers, J. Holding: Affirmed in part; Reversed and Rendered in part |
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| Additional Case Information: |
Topic: Contract - Lease - Tortious interference with business - Expert testimony - Failure to properly perform work - Attorney’s fees - Prejudgment interest - Remittitur - Exclusion of check - M.R.E. 408 Judge(s) Concurring: King, C.J., Bridges and Lee, P.JJ., Irving, Chandler, Griffis, Barnes and Ishee, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 01-10-2003 Appealed from: Harrison County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: JURY VERDICT IN FAVOR OF PLAINTIFF, JURY VERDICT IN FAVOR OF PLAINTIFF, PUNZO. TRIAL COURT DENIED PUNZO’S MOTION TO SUBMIT ISSUE OF PUNITIVE DAMAGES TO JURY. Case Number: A2402-98-00093 |
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| Party Name: | Attorney Name: | |||
| Appellant: | SPORTS PAGE INCORPORATED D/B/A DAVID M’S
INVESTMENTS, DAVID E. MATTINA, JR. D/B/A
SPORTS PAGE INCORPORATED, DAVID E.
MATTINA, JR. D/B/A BOOMERS AND DAVID E.
MATTINA, JR., INDIVIDUALLY |
STEVEN ALFRED KOHNKE
FRED MANNINO |
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| Appellee: | CHARLES N. PUNZO D/B/A PUNZO CONSTRUCTION CO. | EARL L. DENHAM WENDY C. HOLLINGSWORTH |
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| Topic: | Contract - Lease - Tortious interference with business - Expert testimony - Failure to properly perform work - Attorney’s fees - Prejudgment interest - Remittitur - Exclusion of check - M.R.E. 408 |
| Summary of the Facts: | Charles Punzo, d/b/a Punzo Construction Company, filed a complaint against David Mattina, d/b/a David M’s Investments, alleging breach of an oral contract to renovate a commercial building. Mattina counterclaimed against Punzo for improperly performing work under the contract and for tortious interference with business. The court granted Punzo’s motion for directed verdict on Mattina’s counterclaims. The jury returned a verdict in favor of Punzo and awarded him $94,166.89 in damages. The court entered an amended judgment awarding Punzo attorney’s fees of $50,025.86 and prejudgment interest on the principal amount of $88,743.48, dating from the filing of the amended complaint. Mattina appeals. |
| Summary of Opinion Analysis: | Issue 1: Lease After the dispute arose between the parties, Punzo leased from CSX an adjacent property to the newly renovated restaurant and put up a fence of some kind to prevent anyone from parking on the leased space. The judge ruled that Punzo’s actions on his leased property were legal, not tortious, and that Mattina’s failure to secure adequate parking for his customers did not transform Punzo’s otherwise legal use of his leased property into a tortious interference with business. Mattina argues that the court erred in not granting a new trial given its rulings on the issue of Punzo’s lease with CSX. The court acted well within its discretion in holding that Punzo’s actions as lessee of the adjacent property did not constitute a tort in this case. While the previous occupant of the building had apparently used the leased property for parking, there is no indication that the previous occupant or Mattina had any legal right to use the property. Punzo did nothing outside the physical bounds of his leased property, and he did nothing to physically restrict customer access to the restaurant. Issue 2: Tortious interference with business Mattina argues that the court erred in refusing to grant a new trial based upon its rulings on the counterclaim for tortious interference with business. The basic elements of the tort of interference with business are acts evidencing malicious intent to interfere with another’s business, caused by the defendant, and injury or loss flowing from those acts. The record does not firmly establish that Punzo’s actions under the CSX lease were malicious but even if they could be seen as malicious, it is doubtful that Mattina could have established damages. The allegedly tortious actions of Punzo ceased after only four days. Issue 3: Expert testimony Mattina argues that the court erred in refusing to grant a new trial in light of the trial court’s decision to exclude testimony of Mattina’s expert witness. Under the modified Daubert standard, the court must first determine if the expert testimony is relevant, i.e., will assist the trier of fact, and then determine whether the expert testimony is reliable. The trial court found that the jury was capable of understanding the issues and reaching a correct decision without the aid of expert testimony, and this ruling was not an abuse of discretion. Issue 4: Failure to properly perform work Mattina argues that the court erred in refusing to grant a new trial given its decision to dismiss the counterclaim for failure to properly perform work. Mattina argues that all of the necessary elements for res ipsa loquitur were met given the facts in this case. The facts of this case do not support the presumption of negligence triggered by the operation of res ipsa loquitur. Mattina was required to make a sufficient showing that the repairs he had to make were so extraordinary that they could not have been necessary unless Punzo or his subcontractors had been negligent. The record does not indicate that Mattina made such a showing. In addition, Mattina put on no proof that his alleged damages were not caused by his own voluntary actions. Issue 5: Attorney’s fees Mattina argues that the court erred in awarding attorney’s fees because the contract in issue did not provide for attorney’s fees upon breach and the court found that the actions of Mattina did not justify submitting the question of punitive damages to the jury. In general attorney’s fees may be awarded where the contract or a statute provides for attorney’s fees or where the losing party’s conduct was outrageous enough to warrant punitive damages. To justify an award of attorney’s fees in the absence of contractual or statutory provision or conduct giving rise to punitive damages, the trial judge would have had to find that Mattina filed a claim or asserted a defense for purposes of harassment or that Mattina acted to unreasonably prolong the case or that the damages were foreseeable as in Universal Life Ins. Co. v. Veasley, 610 So. 2d 290, 295 (Miss. 1992). In ruling on the issue of attorney’s fees, the trial court found that Mattina’s “wilful and wanton” failure to enter into any meaningful settlement negotiations rendered the award of attorney’s fees proper, even though punitive damages were not appropriate. This “failure to attempt to settle” standard for awarding attorney’s fees in breach of contract cases appears nowhere in our jurisprudence. The award of attorney’s fees is reversed and rendered in favor of Mattina. Issue 6: Prejudgment interest Mattina argues that the award of prejudgment interest constituted an abuse of discretion. Prejudgment interest may be awarded where the claim is liquidated or where there is a bad faith refusal to pay an amount owed. Generally an amount of damages not fixed prior to judgment or an amount of damages that is legitimately in dispute is not liquidated. The claim here was unliquidated, because, although the agreement was for something close to a definite formula for figuring the cost of the work (“cost-plus”), the record reflects a legitimate dispute about whether the amount was owed and if so, how much was owed. For Mattina’s actions to be in bad faith, he would have had to concede that he owed the amount stated and yet refuse to pay without any justification. However, Mattina did not concede that he owed the money. Therefore, the trial court abused its discretion in awarding prejudgment interest. Issue 7: Remittitur Mattina argues that the jury award should have been reduced from $94,166.99 to $88,743.48. Because Mattina fails to cite relevant authority in support of his contention that the jury’s award should have been reduced, this issue will not be considered. Issue 8: Exclusion of check Mattina argues that the court erred in excluding evidence of a check allegedly offered to settle the case. The record shows that Mattina desired to enter the check into evidence or present testimony regarding the check primarily for the limited purpose of showing lack of bad faith. The judge did not abuse his discretion in excluding the check and testimony regarding the check, even though it was purportedly offered for the limited purpose of showing absence of bad faith. M.R.E. 408 does not prohibit evidence of settlement negotiations when offered for a limited purpose other than proof of liability or of the invalidity of a claim. While the check may have been offered primarily to negate bad faith on Mattina’s part, which would not have violated M.R.E. 408, the admission of the check could have borne upon more substantive issues, such as the alleged invalidity of Punzo’s claim, which would have violated M.R.E. 408. |
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