Natchez Elec. And Supply Co., Inc. v. Johnson


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Docket Number: 2004-CA-00155-COA
Linked Case(s): 2004-CT-00155-SCT2004-CT-00155-SCT2004-CT-00155-SCT2004-CT-00155-SCT2004-CA-00155-COA
Oral Argument: 12-13-2005
 

 

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Court of Appeals: Opinion Link
Opinion Date: 02-14-2006
Opinion Author: Chandler, J.
Holding: Affirmed in Part, Reversed & Rendered in Part

Additional Case Information: Topic: Contract - Open account - M.R.C.P. 10(d) - Attorney’s fees - Section 11-53-81 - Admission of testimony - M.R.E. 403 - Breach
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Griffis, Barnes, Ishee and Roberts, JJ.
Procedural History: Jury Trial
Nature of the Case: CIVIL - CONTRACT

Trial Court: Date of Trial Judgment: 10-17-2003
Appealed from: Forrest County Circuit Court
Judge: Robert Helfrich
Disposition: JURY VERDICT IN FAVOR OF DEFENDANT
Case Number: CI97-0129

  Party Name: Attorney Name:  
Appellant: Natchez Electric and Supply Co., Inc.




CLIFFORD C. WHITNEY



 

Appellee: Wayne Johnson d/b/a Johnson Electric SCOTT JOSEPH SCHWARTZ  

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Topic: Contract - Open account - M.R.C.P. 10(d) - Attorney’s fees - Section 11-53-81 - Admission of testimony - M.R.E. 403 - Breach

Summary of the Facts: Natchez Electric & Supply Co., Inc. sold electrical materials on open account to Wayne Johnson d/b/a Johnson Electric, a commercial electrical contractor. Natchez Electric filed suit against Johnson to collect on the account, and Johnson filed an answer and counterclaim asserting breach of contract and intentional and negligent infliction of emotional distress. During the jury trial, the court directed a verdict in favor of Natchez Electric on Johnson's emotional distress claims. The jury found that Johnson was not indebted to Natchez Electric on the open account. The jury also found that Natchez Electric had breached its contract with Johnson, but awarded Johnson zero damages. Natchez Electric appeals.

Summary of Opinion Analysis: Issue 1: Open account Natchez Electric argues that the evidence was insufficient to support the jury's finding that Johnson was not liable on the account. Natchez Electric argues that it was entitled to a JNOV concerning all the delivery tickets that were signed because the signatures proved that Johnson had received the materials and, thus, that he was responsible for payment for those materials. Pursuant to M.R.C.P. 10(d), a claim or defense founded on an account must be accompanied by a copy of the account attached to the pleading unless sufficient justification for its omission is stated in the pleading. The parties' burdens of proof are those applicable to other claims governed by the Mississippi Rules of Civil Procedure. Natchez Electric's proof of the correctness of the debt evidenced by the delivery tickets with signatures, printed names, and for directly shipped items was such as to have entitled Natchez Electric to a JNOV. In light of the evidence of the correctness of the account, Johnson's proof of the account's incorrectness had to be more specific than his general allegations of billing errors. Johnson wholly failed to submit any evidence, beyond his own nebulous allegations, that any outstanding invoice contained a billing error for which he had not already been credited. Thus, Johnson failed to present sufficient evidence from which the jury could have concluded that he was not indebted to Natchez Electric in the amount reflected by the signed delivery tickets and their associated invoices. Natchez Electric was also entitled to a JNOV concerning certain delivery tickets showing that the listed items had shipped directly from the manufacturer to Johnson. Johnson admitted that a delivery ticket for a direct shipment would not bear a signature. There was no evidence from which a reasonable jury could have found that Johnson was not indebted for invoices associated with delivery tickets for directly shipped materials. With regard to blank delivery tickets bearing no signature or printed name, it was established that the ordinary course of business between Natchez Electric and Johnson was for Johnson's employees often to pick up materials without signing, and then for a Natchez Electric employee to print the recipient's name on the delivery ticket as proof of delivery. Based on this evidence, the delivery tickets with no signed or printed name were not sufficient proof that material had been delivered to Johnson to entitle Natchez Electric to a JNOV. Natchez Electric was entitled to a JNOV concerning all of the invoices associated with signed delivery tickets, delivery tickets with printed names, and delivery tickets for directly shipped items. The verdict is reversed and rendered for Natchez Electric in the amount of $39,098.83. Issue 2: Attorney’s fees The issue of attorney's fees in a suit on an open account is governed by section 11-53-81. Notwithstanding Natchez Electric's compliance with the demand requirement, Natchez Electric was not entitled to attorney's fees. For entitlement to attorney's fees pursuant to section 11-53-81, a plaintiff must secure a judgment on the claim in the amount sued for. Since both Natchez Electric and Johnson have partially prevailed in this case, Natchez Electric is not a prevailing plaintiff within the meaning of section 11-53-81 and is not entitled to statutory attorney's fees. Issue 3: Admission of testimony Natchez Electric filed a motion in limine to exclude evidence of a Natchez Electric employee’s alleged theft of materials, because the theft evidence was more prejudicial than probative under M.R.E. 403. The theft evidence, though not linked to any specific materials and, therefore, insufficient to defeat Natchez Electric's proof of delivery, was probative of whether Natchez Electric had overbilled Johnson for materials purchases. Given the broad discretion afforded to the trial court in conducting the Rule 403 balancing test, the court did not abuse its discretion in finding that the theft evidence was not substantially prejudicial to warrant its exclusion. Issue 4: Breach of contract Natchez Electric argues that the evidence was insufficient to sustain the jury's verdict as to breach of contract and, therefore, the trial court should have granted a JNOV concerning Johnson's breach of contract claims. To prove a breach of contract, the plaintiff must show by the preponderance of the evidence the existence of a valid and binding contract; that the defendant has breached the contract; and that the plaintiff has been damaged monetarily as a result of the breach. Regarding Johnson's claim that Natchez Electric breached its contract by failing to deliver materials ordered, the evidence was insufficient to support a verdict for Johnson regarding the majority of the materials invoices. With regard to the other materials invoices for which Natchez Electric was not entitled to judgment, Johnson did not show that he suffered any damage as a result of being billed for materials that he did not receive. Johnson did not show that he ever paid for these materials; in fact, this lawsuit was an attempt to collect from Johnson on the unpaid debt. The trial court erred by refusing to enter a JNOV for Natchez Electric concerning this counterclaim. Also, there was insufficient evidence to enable a reasonable jury to find that Natchez Electric breached its contract to provide materials quotes to Johnson, and Natchez Electric was entitled to a JNOV concerning this claim.


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