Estate of Burgess v. Trotter

• Decision Date: 03 April 2018
• Docket Number: NO. 2016–CA–01496–COA,2016–CA–01496–COA
• Citation: 269 So.3d 284
• Parties: ESTATE OF Francis N. BURGESS Sr., Appellant v. H. Alex TROTTER, Appellee
• Court: Mississippi Court of Appeals

269 So.3d 284

ESTATE OF Francis N. BURGESS Sr., Appellant

v.H. Alex TROTTER, Appellee

NO. 2016–CA–01496–COA

Court of Appeals of Mississippi.

April 3, 2018

Rehearing Denied September 11, 2018

ATTORNEYS FOR APPELLANT: JOE S. DEATON III, JACKSON, RICHARD JASON CANTERBURY, FLOWOOD

ATTORNEY FOR APPELLEE: JOHN DENVER FIKE, RAYMOND

BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

IRVING, P.J., FOR THE COURT:

¶ 1. The Estate of Francis N. Burgess Sr. (Burgess) appeals the judgment of the Hinds County Circuit Court, First Judicial District, rendered in favor of H. Alex Trotter (Trotter). Burgess submits three alleged errors: (1) the trial court's order was against the overwhelming weight of the evidence; (2) the amount of damages awarded was not supported by the evidence; and (3) the trial court erred by failing to articulate its findings of fact and conclusions of law.

FACTS

¶ 2. On May 12, 1999, Trotter filed a complaint in the County Court of Hinds County, First Judicial District, against his neighbor, Burgess. Trotter alleged that Burgess had trespassed on his land numerous times, removed posted signs, and damaged various items of property. While the case was pending, an ancillary chancery court proceeding concerning the ownership of the land in question was also ongoing, and, ultimately, the chancery court ruled that Trotter was the owner of the land in dispute. In the interim, Burgess passed away.¹

¶ 3. During the trial, which was held in 2014, Trotter submitted financial documents to substantiate his claims for damages. Trotter also called numerous witnesses to testify as to Burgess's activities on his land. Burgess filed a motion for findings of fact and conclusions of law on January 14, 2014. The county court entered its order on January 31, 2014, finding that Burgess had trespassed on property owned by Trotter. The county court awarded Trotter $59,915.40 in damages and $13,181 in attorney's fees. The county court's order was later amended to include an eight percent post-judgment-interest adjustment. On February 19, 2014, the county court entered an order denying Burgess's January 14 motion.

¶ 4. On March 14, 2014, Burgess appealed the county court's judgment to the circuit court. Burgess cited four alleged errors: (1) the county court erred by failing to make findings of fact; (2) the award of damages was not supported by substantial evidence; (3) the award of post-judgment interest was improper; and (4) the award of attorney's fees was improper. On September 19, 2016, the circuit court affirmed the county court's judgment with respect to issues one through three, but found that attorney's fees were improper. Burgess appeals.

DISCUSSION

¶ 5. The standard of review for "factual determinations made by the trial judge as the sole trier of fact in a bench trial is the substantial evidence standard. The findings of the trial judge will not be disturbed unless the judge abused his discretion, was manifestly wrong or clearly erroneous or applied an erroneous legal standard." Delta Reg'l Med. Ctr. v. Taylor , 112 So.3d 11, 19 (¶ 21) (Miss. Ct. App. 2012) (internal quotations and citations omitted).

¶ 6. In addition to Burgess's arguments below, he contends that there should have been a jury trial. Trotter correctly responds that this issue was not brought before the county court, and there is no evidence in the record that Burgess requested a jury trial or objected to a bench trial. As such, this issue is procedurally barred.

I. Weight of the Evidence

¶ 7. Burgess argues that Trotter's claims are not supported by substantial, credible, and reasonable evidence. He asserts that the county court erred by misjudging the credibility of Trotter and his witnesses; admitting Trotter's financial records; and not ruling in accordance with what he believes was overwhelming evidence against Trotter. Trotter argues that based on the record, which is replete with eyewitness testimony, and documentary evidence to support the damages award, the decision of the court should be affirmed.

¶ 8. The county court found that the testimony and supporting documentation established that Burgess: (1) destroyed Trotter's fence surrounding his property several times; (2) burned hay located on Trotter's property; (3) plowed up Trotter's crops; (4) damaged Trotter's tractor; (5) destroyed several "no trespassing" signs located on Trotter's property; (6) caused Trotter to have to hire a surveyor on multiple occasions; (7) assaulted Trotter, resulting in medical bills; and (8) was responsible for several other property-related damages.

¶ 9. Trotter testified as to each of those eight allegations and provided documentary evidence to substantiate the amount of damages. He stated that he personally witnessed most of the damage, he was assaulted by Burgess, and he had to call the police several times because of Burgess's actions. In addition to Trotter's testimony, the county court heard from several other witnesses who testified that they personally saw Burgess trespass on Trotter's property and cause damage. Elmer Everett, one of Trotter's employees, testified that he saw Burgess tear down Trotter's fences, damage Trotter's trailer, assault Trotter, and plow up Trotter's fields. Trotter's wife, Donna Trotter, testified that she saw Burgess cut down fences on three separate occasions. Trotter's oldest son, Wilson Trotter, testified that he saw Burgess cut down Trotter's fences, and, although he was not personally there to witness Burgess burning the hay or plowing the fields, Wilson testified as to his personal knowledge of the aftermath.

¶ 10. As stated, in "a bench trial, the [trial judge] is the finder of fact and, thus, solely determines the credibility of witnesses and the weight to give to the evidence. We cannot reweigh the evidence and must defer to the [trial judge]'s findings of the facts, so long as they are supported by substantial evidence." Stasher v. Perry , 217 So.3d 765, 772 (¶ 31) (Miss. Ct. App. 2017) (internal quotations and citations omitted).

¶ 11. Based on the record, we find that the county court's findings are supported by substantial evidence. Thus, this issue is without merit.

II. Damages

¶ 12. Next, Burgess argues that the county court erred in awarding Trotter damages. He states that the damages should not have been awarded because they were not based on adequate proof and were too speculative. He also contends that because the county court did not issue findings of fact, it is unknown whether certain items were improperly included in the court's calculation of damages. He therefore requests that the case be reversed and remanded for the county court to make specific findings of fact.

¶ 13. Trotter notes that he introduced evidence in the form of canceled checks, estimates for fencing replacement, costs for surveys, labor for repairs, repairs for damaged tractor parts, damaged trailer parts, lost hay costs, and costs to repair a damaged hay field. Trotter argues on appeal that the record is void of any cross-examination which would call into question the validity of the expenses and damages and that there were no objections from Burgess when the evidence was introduced. Trotter is incorrect. There were numerous objections to the introduction of certain evidence offered by Trotter. Additionally, the record reflects that Burgess's attorney's cross-examination attacked the validity of the evidence offered against Burgess. Nevertheless, we find that the court's award of damages is supported by substantial evidence.

It is well-understood that in an action seeking damages, the plaintiff bears the burden of proof as to the amount of damages. This requires the plaintiff to place into evidence such proof of damages as the nature of case permits, with as much accuracy as is reasonably possible. Where the existence of damages has been established, the plaintiff will not be denied the damages awarded by a fact finder merely because a measure of speculation and conjecture is required in determining the amount of the damages.

J.K. v. R.K. , 30 So.3d 290, 299 (¶ 34) (Miss. 2009) (internal quotations and citations omitted). Based on our review of the record, we find that Trotter satisfied his obligation to prove by credible evidence that he suffered the damages that he claimed, except as to the amount claimed for the repair of the fence. We find that the amount for the cost of the fence should be $45,833.68, rather than the claimed amount of $47,743.40.² Therefore, as discussed more fully below, we modify the judgment to reflect an amount of $58,005.68, with the judgment accruing post-judgment interest at the rate of eight percent.

¶ 14. The dissent takes issue with the amount of damages awarded by the trial court, explaining that the mathematical calculation for the fence repair on the damage summary sheet submitted by Trotter is incorrect and that the supporting documentation does not support the ultimate figure reflected on the damage summary sheet as the total cost for repairing the fence. The dissent, in further buttressing its argument that the evidence does not support the amount of damages awarded, points out that Trotter testified to the penny about a cost-estimate proposal that he received for repairing the fence, yet he did not produce it, and more importantly, did not hire the preparer of the estimate, nor any third party, to repair the fence. Finally, the dissent argues that "there is no evidence that Trotter ever paid the amount of the estimate, or anything close to it, to replace the fence"—pointing out that the checks and receipts that Trotter presented total only about $10,000.

¶ 15. We agree with the dissent that the damage summary sheet indicates that the cost for repairing the fence is shown as $11,348.42 and that four times that figure equals $45,393.68, not $47,743.40, as reflected on the summary sheet.³ The dissent is correct that Trotter did not produce an estimate for $11,348.42. He did, however, produce an estimate for $11,935.85...