T.C.B. Const. Co., Inc. v. W. C. Fore Trucking, Inc.
| Docket Number: | 2010-CA-00177-COA Linked Case(s): 2010-CT-00177-SCT ; 2010-CA-00177-COA ; 2010-CT-00177-SCT ; 2010-CT-00177-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 02-28-2013 |
|
| Court of Appeals: |
Opinion Link Opinion Date: 11-15-2011 Opinion Author: Maxwell, J. Holding: Affirmed in part, reversed and rendered in part, and remanded |
|
| Additional Case Information: |
Topic: Contract - Modified contract - Quasi-estoppel - Waiver of defense - Prejudgment interest - Section 75-17-1 - Section 75-17-7 - Punitive damages Judge(s) Concurring: Griffis, P.J., Barnes and Roberts, JJ. Non Participating Judge(s): Myers and Ishee, JJ. Concur in Part, Concur in Result 1: Lee, C.J. Concur in Part, Concur in Result Joined By 1: Irving, P.J., and Russell, J. Procedural History: Jury Trial Nature of the Case: CIVIL - CONTRACT Writ of Certiorari: yes Appealed from Court of Appeals |
|
| Trial Court: |
Date of Trial Judgment: 11-03-2009 Appealed from: Harrison County Circuit Court Judge: Roger T. Clark Disposition: DENIED MOTION FOR SUMMARY JUDGMENT AND ALLOWED THE JURY TO DEC IDE IF THE CONTRAC T HAD B EEN MODIFIED AND DETERMINE DAMAGE S Case Number: A2401-2007-25 |
|
| Note: | The SCT opinion can be viewed at http://courts.ms.gov/Images/Opinions/CO83194.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | T.C.B. Construction Company, Inc. |
LAWRENCE CARY GUNN JR.
WILLIAM F. GOODMAN JR. |
|
|
| Appellee: | W. C. Fore Trucking, Inc. | JAMES K. WETZEL MICHAEL E. COX | ||
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. |
|
| Topic: | Contract - Modified contract - Quasi-estoppel - Waiver of defense - Prejudgment interest - Section 75-17-1 - Section 75-17-7 - Punitive damages |
| Summary of the Facts: | T.C.B. Construction Company, Inc. sued W.C. Fore Trucking, Inc. for breach of contract. The suit was based on Fore’s non-payment for work TCB performed removing debris south of Highway 53 in Harrison County after Hurricane Katrina. Fore disagreed that the subcontract between the two companies was modified to include this area. Although the jury found Fore had modified the subcontract, it awarded TCB only $3,577,583.34 in damages, which in effect compensated TCB for only half of the work it undisputably performed. TCB appeals. |
| Summary of Opinion Analysis: | Issue 1: Modified contract The circuit court found W.C.’s denial of the subcontract’s modification was sufficient to create jury questions on the issues of modification and damages. However, there were no jury issues to be resolved. Fore admits it did not reject a single one of TCB’s daily truck tickets or weekly invoices. Likewise, prior to TCB filing suit, Fore did not protest that TCB was working in an area outside of the area covered in the subcontract. Fore also admits it billed the County—and received payment from the County—for TCB’s work represented by these invoices. Fore’s undisputed conduct, as a matter of law, established the subcontract’s modification. And TCB’s unquestioned invoices proved Fore owed TCB a remaining balance of $6,634,436.69. The doctrine of quasi-estoppel is applied to preclude contradictory positions by preventing a person from asserting, to another’s disadvantage, a right inconsistent with a position previously taken. Because Fore ratified, accepted, and greatly benefitted from TCB’s debris removal south of Highway 53, TCB argues quasi-estoppel precludes Fore from later flip flopping to an entirely inconsistent position aimed solely at shirking its obligation to pay TCB. Generally, quasi-estoppel is a factual determination and thus the province of the jury. But if the evidence is undisputed as to the material facts, estoppel may be established as a matter of law. Here, none of the material facts related to the inconsistency between Fore’s present assertion and its previous actions are disputed. Quasi-estoppel applies because “the conscience of the court is repelled” by Fore taking the position it does not have to pay TCB its contract rate when Fore operated as if the subcontract included debris removal south of Highway 53. TCB is entitled to compensation under the modified subcontract as a matter of law. Just as the issue of modification was not a jury issue, neither was the issue of damages. The circuit court decided to leave the amount of damages to the jury’s discretion. However, Fore presented no evidence to dispute the amount of cubic yards TCB removed. And the subcontract provided for a rate $8.90 per cubic yard, leaving no jury question about the amount of TCB’s compensation under the modified subcontract. Fore argues TCB did not plead estoppel—only breach of contract—and, therefore, cannot recover under this equitable theory of quasi-estoppel. Quasi-estoppel is not an independent claim that must be pled. Rather, quasi-estoppel is an affirmative defense. Typically, it is the defendant who affirmatively pleads quasi-estoppel to show the plaintiff’s claim is based on an inconsistent position. But a plaintiff like TCB may also assert quasi-estoppel in response to the defendant’s answer. TCB did not waive the defense of quasi-estoppel at the pleadings stage because TCB alleged sufficient facts in its complaint to support the theory. TCB pled that the subcontract existed because Fore accepted the benefit of the modified subcontract. And in its motions for summary judgment and motion for a directed verdict, TCB argued W.C.’s inconsistent testimony that the subcontract had not been modified could not be used to dispute Fore’s previous conduct. Issue 2: Prejudgment interest Both TCB and Fore appeal the circuit court’s award of prejudgment interest. TCB argues, because its damages were liquidated, prejudgment interest should have been awarded from the date of the breach of the subcontract, not the later date when it filed its complaint for breach of contract. Fore claims, because TCB’s damages were unliquidated, no prejudgment interest should have been awarded. A trial judge may award prejudgment interest to the prevailing party in a breach of contract suit if prejudgment interest was requested in the complaint. When damages are liquidated or there has been a bad-faith denial of payment, the prevailing party in a breach of contract suit is entitled to have added legal interest on the sum recovered computed from the date of the breach of the contract to the date of the decree. Liquidated damages are damages that are set or determined by a contract when a breach occurs. No award of prejudgment interest is allowed where the principal amount has not been fixed prior to judgment. If there is a bona fide dispute as to whether the plaintiff is entitled to recover damages and in what amount, the claim is not liquidated. Fore denied it owed anything for work south of Highway 53 because the subcontract had not been modified. But it did not dispute the amount of work TCB performed south of Highway 53. Indeed, it used the exact figures from TCB’s invoices to generate the bills Fore sent to the County. There is no dispute as to how much is owed on these invoices. Thus, TCB’s damages are liquidated and were fixed at the time Fore breached the subcontract by failing to pay TCB for its work. The circuit court correctly awarded TCB eight-percent prejudgment interest. But it erroneously set the date the interest began to accrue as the date TCB filed suit. This interest actually began to run at the time of breach. For judgments based on breach of contract, the Supreme Court, relying on both sections 75-17-1 and 75-17-7, has held eight percent prejudgment interest should run from the date of the breach of contract. Issue 3: Punitive damages TCB seeks remand of the issue of punitive damages and attorney’s fees to the circuit court. The prevailing party in a breach-of-contract action may recover punitive damages where such breach is attended by intentional wrong, insult, abuse, or such gross negligence as amounts to an independent tort. Attorney’s fees are also recoverable when a punitive damages award would be proper. TCB argues Fore’s decision not to pay TCB any part of the outstanding $6,634,436.69 in invoices is evidence of malice on Fore’s part. Though the question is admittedly close, the trial court did not abuse its discretion as gatekeeper by finding Fore’s actions did not necessitate submission of the punitive-damages issue. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
