Serge v. State
| Docket Number: | 2010-KA-00946-COA Linked Case(s): 2010-KA-00946-COA ; 2010-CT-00946-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-24-2012 Opinion Author: Lee, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Home-repair fraud - Applicability of home-repair-fraud statute - Section 97-23-103 - Weight of evidence Judge(s) Concurring: Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Maxwell, Russell and Fair, JJ. Concurs in Result Only: Carlton, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 06-03-2010 Appealed from: Harrison County Circuit Court Judge: Lawrence P. Bourgeois, Jr. Disposition: CONVICTED OF HOME-REPAIR FRAUD AND SENTENCED TO TEN YEARS, WITH ONE AND ONE-HALF YEARS TO SERVE, EIGHT AND ONE-HALF YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $1,000 FINE AND $27,000 IN RESTITUTION Case Number: B2401-2008-000287 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Patrick Michael Serge |
W.F. HOLDER II |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER |
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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: | Home-repair fraud - Applicability of home-repair-fraud statute - Section 97-23-103 - Weight of evidence |
| Summary of the Facts: | Patrick Serge was convicted of home-repair fraud and was sentenced to ten years, with one and one-half years to serve, eight and one-half years suspended, and five years of post-release supervision. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Applicability of home-repair-fraud statute Serge argues that the home-repair-fraud statute, section 97-23-103, does not apply to new construction. According to section 97-23-103(1)(a), “home repair” is defined as “the fixing, replacing, altering, converting, modernizing, improving of or the making of an addition to any real property primarily designed or used as a residence.” The statute also contains a section describing what home repair does not include. New home construction is not listed in this particular subsection as an exclusion. From the plain reading of the statute, it is clear that the statute is designed to prevent unscrupulous contractors from defrauding homeowners who are in need of repairs to their damaged homes, whether the damage is total or partial. It was not the intent of the Legislature for this statute to apply only to those homeowners whose homes are partially damaged and not to those whose homes are completely destroyed. Issue 2: Weight of evidence Serge argues the verdict is against the overwhelming weight of the evidence. The State put on proof that Serge entered into a contract with the Ederers on August 15, 2007, and the Ederers paid Serge a down payment of $27,000. The Ederers testified that shortly thereafter they received a letter from Serge, which was dated just five days after the contract was signed, indicating that Serge was unable to complete construction on their home and would be filing for bankruptcy. Serge never returned any of the Ederers’ down payment. The Ederers testified that Serge never indicated that he was having financial difficulty or cash-flow problems when he accepted their down payment. Helene testified that Serge stated the down payment would be used for materials on the Ederers’ new home. As of trial, Serge had not filed for bankruptcy. Thus, the jury could infer from the evidence produced during trial that Serge never intended to complete construction on the Ederers’ new home, and allowing the verdict to stand would not sanction an unconscionable injustice. |
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