Brewer Constr. Co., Inc. v. David Brewer, Inc., et al.
| Docket Number: | 2005-CA-01661-SCT Linked Case(s): 2005-CA-01661-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 08-24-2006 Opinion Author: Easley, J. Holding: Reversed and Rendered In Part; Reversed and Remanded In Part |
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| Additional Case Information: |
Topic: Property damage - Property ownership - Joint and several liability - Indemnification Judge(s) Concurring: SMITH, C.J., WALLER, P.J., DIAZ, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ. Non Participating Judge(s): COBB, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 07-20-2005 Appealed from: WARREN COUNTY CIRCUIT COURT Judge: Frank G. Vollor Disposition: Found BCI & Massey jointly & severally liable & awarded damages in favor of POV Case Number: 01-0117-CI |
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| Note: | Motion to Strike Exhibit 1 Timeline of Events filed by appellees is denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | BREWER CONSTRUCTION COMPANY, INC.; MASSEY LAND & TIMBER, LLC |
JAN F. GADOW, CLYDE X. COPELAND, III, JEFFREY STEPHEN MOFFETT, ROBERT NILES HOOPER |
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| Appellee: | DAVID BREWER, INC., AND PEAR ORCHARD VICKSBURG, LLC; DAVID BREWER, INC., PEAR ORCHARD VICKSBURG, LLC AND BREWER CONSTRUCTION COMPANY, INC. | SAMUEL C. KELLY, CHERI TURNAGE GATLIN |
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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: | Property damage - Property ownership - Joint and several liability - Indemnification |
| Summary of the Facts: | David Brewer, Inc., Brewer Construction, Inc., and Bruce Hartfield, Inc. filed suit against BellSouth Telecommunications, Deviney Construction, and Curtis Wright Construction. Joe Bonelli Construction Company, Inc., Sanderson-Hollingsworth Builders, L.L.C., and Hartfield intervened by filing a motion to allow intervention, cross-claims, and third-party claims. The special master allowed the intervention and the attached proposed complaint, cross-claims, and third-party claims to be filed with the court. Bonelli, Sanderson-Hollingsworth, and Hartfield filed their complaint and cross-claims against defendants, BellSouth, Deviney, and Wright; cross-claims against DBI and BCI; and third-party claims against Pear Orchard Vicksburg, L.L.C. and Massey. BCI, with permission of the court, amended its complaint to include an indemnification claim against Massey for its negligence in the grading and compaction of the soil in the Pear Orchard subdivision. Massey was joined as a party defendant. DBI and POV, with permission of the court, amended their complaint alleging that BCI and Massey breached their duty to properly construct and compact lots for the Pear Orchard subdivision. The trial court entered an order for the special master requested by DBI and POV to handle the proceedings. BCI filed for summary judgment against Massey which the special master denied. Prior to trial, all parties settled except DBI and POV, and BCI and Massey. The special master recommended a judgment in favor of DBI against BCI and Massey, jointly and severally, for $179,034.32; judgment in favor of POV against BCI and Massey, jointly and severally, for $401,760.80; and judgment in favor of DBI and POV against BCI and Massey, jointly and severally, for the special master’s fee of $8,249.60. Massey and BCI both filed objections to the report. The trial court denied BCI’s motion for credit or offset for the settlement of a co-defendant and reduced the amount of damages awarded to POV. The trial court entered its final judgment, finding BCI and Massey jointly and severally liable in the amount of $179,034.32, plus costs of court, in favor of DBI. The trial court also entered a final judgment, finding BCI and Massey jointly and severally liable in the amount of $349,718.90, plus costs of court, in favor of POV. The trial court then found that judgment should be granted in favor of BCI against Massey for full and complete indemnity to the extent BCI is required to pay the judgments to DBI and POV. BCI and Massey appeal. |
| Summary of Opinion Analysis: | Issue 1: Property ownership The special master found that BCI was the general contractor hired by the owner of the property, POV, to perform the dirt work and Massey was BCI’s sub-contractor and agent when Massey contracted to and performed the dirt work on the land. Accordingly, the special master then determined that BCI and Massey were jointly and severally liable to POV and DBI for the damages because Massey was BCI’s subcontractor and BCI was responsible for the failures of its agent, Massey. DBI and POV argue that it is a “red herring” as to who owned the property because BCI could still be the general contractor even if BCI was actually the owner of the property at the time the work was performed by Massey. While it is true that BCI, as the owner of the subject property, could be its own general contractor, the special master, and subsequently the trial court, erred in its analysis finding BCI and Massey jointly and severally liable to POV and DBI based on BCI being POV’s general contractor and having hired Massey as its subcontractor to perform the dirt work. POV did not exist in 1999 when BCI owned the property and hired Massey to perform the dirt work. Massey performed and completed the dirt work in 1999 while the property was owned by BCI. Therefore, BCI and Massey cannot be held jointly and severally liable to POV and DBI. BCI transferred the property to Webber, individually, on March 17, 2000. Webber, individually, not BCI, then transferred the property to POV. No written agreements, contracts, or warranties exist between BCI and POV or DBI regarding the property. The special master and the trial court erred by treating BCI and Webber, not named as a party to this litigation, as being the same legal entity instead of as two separate and distinct legal entities. Because the trial court erred in finding BCI liable to POV and DBI based upon Massey’s negligence in the performance of the dirt work, the special master’s fee of $8,249.60 is reversed and remanded. Issue 2: Indemnification In BCI’s cross-claim for common law indemnity, BCI, while denying liability, sought to be indemnified by Massey in the event the fact finder held BCI liable. The trial court found BCI and Massey to be jointly and severally liable to POV and DBI. The trial court then found that judgment should have be granted in favor of BCI against Massey for full and complete indemnity to the extent BCI is required to pay the judgments to DBI and POV. However, the trial court erred in finding BCI and Massey jointly and severally liable to POV and DBI. Since BCI is not liable to POV and DBI based on the dirt work performed by Massey, BCI is not entitled to indemnification from Massey. |
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