Southland Enterprises, Inc. v. Newton County
| Docket Number: | 2004-CA-00731-COA Linked Case(s): 2004-CA-00731-COA ; 2004-CA-00731-SCT ; 2004-CT-00731-SCT ; 2004-CA-00731-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-07-2006 Opinion Author: Griffis, J. Holding: AFFIRMED IN PART AND REVERSED AND RENDERED IN PART |
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| Additional Case Information: |
Topic: Contract - JNOV - Amendment of complaint - M.R.C.P. 15(b) - Prejudgment interest - Section 31-5-25 Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Barnes and Ishee, JJ. Non Participating Judge(s): Southwick and Roberts, JJ. Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 12-11-2003 Appealed from: Newton County Circuit Court Judge: Vernon Cotten Disposition: VERDICTAWARDEDCONTRACT DAMAGES TO APPELLANT. MOTION TO AMENDJUDGMENT TO INCLUDE INTEREST AND ATTORNEY FEES DENIED. MOTION FOR A JNOV OR NEW TRIAL DENIED. MOTION TO CONFORM THE JUDGMENTTO AMOUNTPLEDIN COMPLAINT DENIED Case Number: 00-CV-047-NW |
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| Party Name: | Attorney Name: | |||
| Appellant: | Southland Enterprises, Inc. |
G. MARTIN WARREN, JR. |
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| Appellee: | Newton County, Mississippi | JASON A. MANGUM |
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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 - JNOV - Amendment of complaint - M.R.C.P. 15(b) - Prejudgment interest - Section 31-5-25 |
| Summary of the Facts: | Newton County accepted a bid from Southland Enterprises, Inc., to reseal a portion of Chunky-Duffee Road. After the project was over, Newton County refused to pay Southland and claimed that the result was unsatisfactory. Southland sued Newton County for breach of contract and open account. The case went to a jury that awarded Southland $21,697.24. The Mississippi Supreme Court upheld the liability finding but ordered a new trial on damages. After the second trial, the jury entered a verdict that awarded Southland $94,800.98. Since Newton County had already paid the first $21,697.24 verdict, the judge ordered Newton County to pay the balance of $73,103.74. Both parties appeal. |
| Summary of Opinion Analysis: | Issue 1: JNOV The county argues there was insufficient evidence to find it liable under the contract. In the appeal to the Mississippi Supreme Court, the county did not challenge the jury’s liability finding. The court upheld liability and remanded the case for a new trial on damages only. Therefore, this argument is untimely. Issue 2: Amendment of complaint Newton County wants the judgment of $94,800.98 conformed to the amount originally pled in the complaint, $84,800.98. Even though evidence was admitted that the actual amount owed was $94,800.98, the county argues that it was not on notice to object to the variance. If the plaintiff puts on evidence that her damages are greater than pled, and defendant does not object, M.R.C.P. 15(b) amends the complaint accordingly. Whether an issue was tried by consent depends on whether it was reasonable for the opposing side to recognize that the evidence not presented in the complaint was being tried. Here, the amount sought was a liquidated amount, which the county was in just as good a position to calculate as was Southland. There is no prejudice in such a case. Not only was it reasonable to conclude that the $94,800.98 figure was being tried, it was the only number that was offered. The only times the $84,800.98 figure was ever mentioned at trial was accompanied by an explanation that it was not the correct amount of damages. Issue 3: Prejudgment interest In the first appeal, the supreme court held Southland was not entitled to prejudgment interest and attorney fees, because the jury found liability based on quantum meruit. Southland argues that the damage award is a breach of contract award and not a quantum meruit award. When an appellate court issues a ruling and sends the case back on remand, the ruling is the law of the case. It is binding on the trial court unless it falls under an exception. Exceptions include material changes in evidence, pleadings or findings, or the need for the court to depart from its earlier decision to avoid unjust results. This case was remanded for a new trial on damages, with an additional jury instruction. The new award was for the full amount of the contract. It follows that the law of the case does not apply. To be entitled to prejudgment interest, the claim must be liquidated when originally made, and the pleadings must request it. Here, the claim was liquidated, and Southland pled for prejudgment interest in its complaint. The evidence showed that the project was completed December 16, 1999, and that Newton County did not pay within sixty days of this date. Nothing in the payment clause of the contract changes the basis for payment set out in section 31-5-25. Therefore, it was an abuse of discretion for the lower court not to award Southland prejudgment interest under section 31-5-25 on the unpaid balance of Southland’s contract. The denial of attorney’s fees is affirmed since section 31-5-25 does not provide for a statutory award of attorney fees. |
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