Upchurch Plumbing, Inc., et al. v. Greenwood Utilities Comm'n
| Docket Number: | 2005-CA-01689-SCT Linked Case(s): 2005-CA-01689-SCT ; 2005-CA-01689-SCT ; 2005-CA-01689-SCT |
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| Supreme Court: |
Opinion Date: 08-30-2007 Opinion Author: CARLSON, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Factual determinations - Applicability of Uniform Commercial Code - Breach of contract - Waiver - Attorney’s fees - Prejudgment interest - M.R.C.P. 8 - Section 75-17-7 Judge(s) Concurring: SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, DICKINSON AND RANDOLPH, JJ. Judge(s) Concurring Separately: GRAVES, J. CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION Non Participating Judge(s): LAMAR, J. Dissenting Author : GRAVES, J. Concur in Part, Dissent in Part 1: Graves, J. Without Separate Written Opinion Procedural History: Bench Trial Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 07-12-2005 Appealed from: LEFLORE COUNTY CIRCUIT COURT Judge: W. Ashley Hines Disposition: After bench trial, judgment was entered in favor of Appellee & the court awarded damages |
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| Party Name: | Attorney Name: | |||
| Appellant: | UPCHURCH PLUMBING, INC. AND TRICONEX
SYSTEMS, INC. |
BRENDA B. BETHANY
C. MICHAEL ELLINGBURG |
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| Appellee: | GREENWOOD UTILITIES COMMISSION | PHIL B. ABERNETHY THOMAS M. FLANAGAN, JR. |
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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 - Factual determinations - Applicability of Uniform Commercial Code - Breach of contract - Waiver - Attorney’s fees - Prejudgment interest - M.R.C.P. 8 - Section 75-17-7 |
| Summary of the Facts: | The motion for rehearing is denied, and this opinion is substituted for the original opinion. The Municipal Energy Agency of Mississippi contracted with General Electric Company for a major upgrade of three generating units at Greenwood, Yazoo City, and Clarksdale. With the written consent of GE, the Greenwood portion of that contract was fully assigned by MEAM to Greenwood Utilities Commission. Greenwood contracted with Upchurch Plumbing, Inc. for an upgrade of the control system for its General Electric Frame V combustion turbine. Upchurch subcontracted with Triconex Systems, Inc. for the hardware and installation of a digital control system for the turbine. After the turbine was damaged, Greenwood filed suit against GE, Upchurch and Triconex in the Chancery Court of Leflore County. GE filed a Motion to Transfer to Circuit Court, and Motion to Transfer Venue to Hinds County. The chancellor entered an order finding that the chancery court did have subject matter jurisdiction, and further ordered GE to investigate the damage to the unit, identify repairs necessary to correct the damage, and provide an estimate of the cost of the necessary repairs. The chancellor also ordered Greenwood, within ten days of receiving the quote from GE, to issue a purchase order to allow GE to proceed with the work pursuant to the quote, and directed Greenwood to pay GE for the actual repairs. Several years later, the chancellor entered another order granting Defendant’s Motion to Transfer to the Circuit Court of Leflore County. The circuit judge entered an order denying the Motion to Amend the Findings of Fact filed by Upchurch and Triconex; an order awarding attorneys’ fees to Greenwood; and final judgment in favor of Greenwood and against Upchurch and Triconex, in the amount of $2,381,471.56, plus attorney fees in the amount of $240,980.40 for a total amount owed of $2,622,451.96, with post-judgment interest at the annual rate of 8% until paid. Upchurch and Triconex appeal. |
| Summary of Opinion Analysis: | Issue 1: Factual determinations Triconex cites specific testimony in the transcript and record in an effort to prove that the judge erred in his findings of fact. The record, including the testimony of the witnesses, shows that the judge’s findings of fact are supported by substantial, credible and reasonable evidence. Issue 2: Uniform Commercial Code The Uniform Commercial Code provides that there can be no breach of contract where the goods in question have not been tendered, and Triconex argues that the system had not been “tendered” at the time of the testing. Greenwood argues that the UCC is not applicable since the trial court based its ruling on Mississippi general contract law. The UCC does not apply. Using the mixed-transactions test, the dispute in the case clearly concerns testing of the system, which is a service. Additionally, the contract as a whole, as evidenced by Greenwood’s demonstration that sixty percent of the contract related to services, was for the specialized design of the turbine by Triconex. Issue 3: Breach of contract Triconex argues that the contract in question provided that “[a]t times the Owner may provide personnel to assist the Contractor’s field service personnel during on-site testing.” Triconex further argues that Greenwood did not object to the inspector, and that this type of assistance is customary in the industry. It is irrelevant whether Triconex asked Greenwood for assistance. According to the plain language of the contract, Triconex had the burden of providing all labor, tools, and technical assistance for the testing. In other words, Triconex had sole responsibility for the testing. Triconex argues that Greenwood waived the contractual requirement for Triconex to provide all personnel and instrumentation. The actions and pattern of conduct of the parties determine if a waiver or modification occurred. The contract stated that Greenwood employees could assist, and the inspector did so. The contract also stated that Triconex had sole responsibility for testing. Thus, no provision of the contract was waived. Issue 4: Attorney’s fees Triconex argues that the contract allowed attorneys’ fees only for the removal or correction of defective work. The trial judge properly awarded attorneys’ fees to Greenwood in accordance with the contract. Notwithstanding Triconex’s assertions, the “Work” included the installation of the system, whether or not completed. According to the contract, Triconex was responsible for replacing any defective “Work” with nondefective “Work.” Greenwood had to file suit because Triconex refused to pay for the damage to the turbine. Triconex also argues that the judge failed to determine whether the fees were reasonable. It is clear from the language of the judge’s order that the judge applied the McKee factors even though he did not detail his reasoning. Thus, he did not abuse his discretion. Issue 5: Prejudgment interest The judge has discretion to award prejudgment interest if the amount of damages is fixed and liability is undisputed. The motion for rehearing asserts error by the Court in awarding prejudgment interest because the complaint does not contain a specified date on which prejudgment interest allegedly became due. While M.R.C.P. 8 does require that a party assert a demand for prejudgment interest in the appropriate pleading, the rule does not require that a party seeking prejudgment interest must plead the specific date on which the prejudgment interest allegedly is due. Triconex argues that Greenwood’s damage claim was not for a liquidated amount. The amounts were liquidated when paid and certainly prior to judgment, as Greenwood received bills for the amounts required to repair the damage to the turbine. Triconex argues that Greenwood simply demanded prejudgment interest in its complaint without stating an amount or the date from which it was allegedly due. Greenwood was required only to make a demand for prejudgment interest, and Greenwood’s failure to state a specific date in its complaint does not relieve Triconex from being responsible for prejudgment interest. Triconex argues that prejudgment interest is not authorized by statute. The trial judge acted well within his authority under section 75-17-7 in awarding prejudgment interest. |
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