American Fire Protection, Inc. v. Lewis

• Decision Date: 06 April 1995
• Docket Number: No. 91-CA-00665-SCT,91-CA-00665-SCT
• Parties: AMERICAN FIRE PROTECTION, INC. and Jeff M. Yarborough, v. Jack W. LEWIS.
• Court: Mississippi Supreme Court

Page 1387

653 So.2d 1387

AMERICAN FIRE PROTECTION, INC. and Jeff M. Yarborough, v. Jack W. LEWIS.

No. 91-CA-00665-SCT.

Supreme Court of Mississippi.

April 6, 1995.

Jerome L. Lohrmann, Lohrmann & Associated, Jackson, for appellants.

David N. Gillis, Jackson, for appellee.

EN BANC.

ON PETITION FOR REHEARING

McRAE, Justice, for the court:

The original opinions are withdrawn and these opinions are substituted therefor.

American Fire Protection, Inc. (hereinafter "American Fire") and Jeff M. Yarborough appealed the decision of the Hinds County Circuit Court (First Judicial District) which ordered them to pay $6,552.00 and $3,000.00 respectively to Jack W. Lewis on the basis of a contract between the parties. Lewis cross-appealed the judgment of the circuit court seeking prejudgment interest. Finding that contract liability exists, we affirm the decision of the lower court on direct appeal regarding the $6,552.00, but we reverse and render the $3,000.00 verdict against Yarborough. However, we find the judge abused his discretion in that Lewis was entitled to prejudgment interest, and therefore, we reverse and render on the cross-appeal. American Fire and Yarborough raised the following issues on direct appeal:

I.

The circuit court erred in entering a jury verdict which was not responsive to the issues and contrary to the instructions of the court.

II.

The circuit court erred in refusing to sustain American Fire's motion for a directed verdict, JNOV, or, alternatively motion for a new trial when the verdict of the jury was not supported by the preponderance of the evidence.

III.

The circuit court erred in refusing to sustain Yarborough's motion for a directed On cross-appeal, Lewis raised the following pertinent issue:

verdict, JNOV, or, alternatively, motion for a new trial when the verdict against him was not supported by the evidence and contrary to existing law.

A.

The circuit court erred in denying Lewis' motion to amend the final judgment to include prejudgment interest on the amount of damages assessed by the jury.

STATEMENT OF FACTS

American Fire was a Mississippi corporation owned equally by Yarborough, Pitts, and Hugh Hollingsworth and was in the business of installing commercial fire protection and sprinkler systems throughout the state. On March 24, 1988, Lewis, as an employee, met with Yarborough and Pitts to resolve questions about his termination and Pitts' withdrawal as partner. One of the topics discussed at this meeting was the amount of money American Fire owed Lewis for jobs he completed. Lewis and Yarborough, along with Pitts, had previously established an agreement whereupon Lewis would receive an hourly rate plus a certain percentage of profits on work that he "brought in." In addition to this arrangement, Lewis often worked jobs on a purely contract basis where profits were split fifty-fifty.

Pitts determined how much money was owed Lewis for the jobs with the exception of the labor and truck expense which was determined by Yarborough. Pitts never obtained Hollingsworth's approval on anything, and therefore, he was never aware of any agreement with Lewis. At the meeting, the partners voted not to allow Lewis to join the partnership. Pitts decided at that time to leave the business and form a new company with Lewis. At this time, Pitts prepared a statement of jobs that Lewis worked where he was paid one-half the profits. Lewis made notes on the discussion and the ultimate agreement between the parties. Lewis admitted that they did not instigate the meeting with the idea of formulating a contract, but the purpose behind the meeting included how furniture would be split, existing jobs, and Lewis' pay. The document was signed by Yarborough and Pitts; however, it did not designate that it was signed by Yarborough on behalf of American Fire, but Lewis assumed that he had an agreement because Pitts and Yarborough were both present and most of his dealings in the past involved only the approval of Yarborough for the company. The signed document served as evidence of their agreement derived at the meeting. Yarborough said he signed the document "primarily to present the items to Hollingsworth." The document in question was later modified between Yarborough and Lewis because it addressed "fifteen percent," but did not refer to how the percentage was to be applied to the jobs. Yarborough said the percentage reflected overhead from the cost of the job whereas Lewis claimed it should be calculated from gross profits rather than the total cost of the job. They finally agreed to gross profits, and the document was initialed by both parties and given to Pitts. Pitts signed the revised copy.

Lewis received his hourly rate on most of these jobs, but did not receive the profit sharing monies as he had in the past. During this time Lewis also worked on other jobs for Yarborough where he only got an hourly pay per an agreement to that effect. Lewis did not make demands for the profit share immediately because the company traditionally waited until the customer paid for the job, and he did not realize he would not be paid until Yarborough commented in other litigation with Pitts that he did not owe anything to Lewis. There were approximately five jobs that Lewis was due a percentage of the profits and/or labor which was reflected in the $6,552.00 amount awarded by the jury in actual damages. The jury also awarded Lewis $3,000 against Yarborough personally for interference with the contract.

Lewis made an oral demand to American Fire and Yarborough for the money owed him in October, 1988. Lewis then made a A check was tendered for one of the jobs, but Lewis did not cash it because it was marked "payment in full." Lewis filed a complaint in the Circuit Court of Hinds County on June 16, 1989. After the lower court found a contract existed between the parties, American Fire and Yarborough filed a motion for a directed verdict and a motion for judgment notwithstanding the verdict, or alternatively, a motion for a new trial.

written demand to American Fire, Yarborough, and their attorney, Jerry Lohrmann, on December 13, 1988.

DISCUSSION OF LAW

The first issue that American Fire and Yarborough raised on appeal is that the jury's verdict was unresponsive and contrary to the instructions of the court. Whether the verdict is unresponsive to the instructions of the court cannot be ascertained by this Court as the complete instructions given to the jury were not included as part of the record. However, the refused instructions were made a part of the record. Only one instruction, which appears to have been given, is included in the record. "On appeal, this Court does not review jury instructions in insolation; rather they are read as a whole to determine if the jury is properly instructed." Bradford v. Barnett, 615 So.2d 580, 583 (Miss.1993). See also, Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992); Heidel v. State, 587 So.2d 835, 842 (Miss.1991); Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 40 (Miss.1989).

Unfortunately, if American Fire and Yarborough are going to raise the issue on appeal, then it is incumbent upon them to include the necessary information in the record. This Court has very recently held that it may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record. Dillon v. State, 641 So.2d 1223, 1225 (Miss.1994) (citing Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973)). Therefore, the trial court cannot be held in error based on the information presented. The burden is on American Fire and Yarborough to make sure there is a complete record that supports all of their arguments. Ross v. State, 603 So.2d 857, 861 (Miss.1992). As a matter of fact, it is an appellant's duty to justify his arguments of error with a proper record, which does not include mere assertions in his brief, or the trial court will be considered correct. Smith v. State, 572 So.2d 847, 849 (Miss.1990).

While the transcript provides some dialogue regarding the jury instructions and the appellant cites this verbatim, it does not tell this Court what language was actually in the instructions themselves. The transcript merely provides comments on how the attorneys perceived the instructions. There is no merit to this assignment of error.

The second and third error American Fire and Yarborough raised on appeal involve the motions for a directed verdict, judgment notwithstanding the verdict, and new trial as they apply to each defendant. First, appellant's counsel argued, with an extensive citation of Corbin on Contracts, that the signed agreement between Lewis, Pitts and Yarborough did not constitute a contract with the corporate entity, and therefore, the trial court should have granted one of the three motions.

However, the grant or denial of a new trial has always been within the sound discretion of the trial judge, and absent an abuse of discretion, this Court is "without power to disturb such a determination." Muse v. Hutchins, 559 So.2d 1031, 1034 (Miss.1990). The standard of review for denial of a judgment notwithstanding the verdict and a directed verdict are identical. Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993) (citing Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)). Under this standard, this Court uses the following analysis:

[The evidence is considered] in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point Munford, 597 So.2d at 1284 (citing Litton Systems, Inc. v. Enochs, 449 So.2d 1213, 1214 (Miss.1984)).

so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, [then the Court is] required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of...