Family Dollar Stores of Ms. v. Montgomery, No. 2005-CA-00126-COA.

• Decision Date: 12 December 2006
• Docket Number: No. 2005-CA-00126-COA.
• Citation: 946 So.2d 426
• Parties: FAMILY DOLLAR STORES OF MISSISSIPPI, INC., Appellant/Cross-Appellee v. Charles N. MONTGOMERY, Jr. and Bowman Electric Services, Inc., Appellees/Cross-Appellants.
• Court: Mississippi Court of Appeals

946 So.2d 426

FAMILY DOLLAR STORES OF MISSISSIPPI, INC., Appellant/Cross-Appellee v. Charles N. MONTGOMERY, Jr. and Bowman Electric Services, Inc., Appellees/Cross-Appellants.

No. 2005-CA-00126-COA.

Court of Appeals of Mississippi.

December 12, 2006.

COPYRIGHT MATERIAL OMITTED

Hugh Gillon, attorney for appellant.

Tim Waycaster, Richard D. Underwood, attorneys for appellees.

Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.

SOUTHWICK, J., for the Court.

¶ 1. Patrons and employees of a Family Dollar store in Fayette, Mississippi brought suit for injuries sustained when the roof of the store partially collapsed during an expansion project. The personal injury claims were settled prior to trial. The remaining parties include the building owner, the contractor, and Family Dollar. The Jefferson County Circuit Court, after a bench trial, allocated fault to all defendants, refused to order the contractor to indemnify Family Dollar, and established the amount of damages. Family Dollar appeals on several issues, and the building owner cross-appeals on the amount of damages. We find error as to the basis on which Family Dollar was found liable. We reverse and remand for further proceedings.

FACTS

¶ 2. Charles Montgomery Jr. owned a building in Fayette, Mississippi which he first leased to a Family Dollar corporate entity in 1982. The current lease is between Montgomery and Family Dollar Stores of Mississippi, Inc. The lease was amended in 1994 due to an anticipated expansion of the store. Family Dollar was to make the improvements at its own expense, in a workmanlike manner and in compliance with all applicable building codes.

¶ 3. In 2001, Family Dollar hired Bowman Electric Service, Inc. as the general contractor for the expansion. Bowman was not licensed as a general contractor. It had been thirty-five years since he had been involved with a project requiring removal of a load-bearing wall. Bowman subcontracted certain work to Will T. Turner, including removal of a load-bearing wall. On May 21, 2001, Turner was in the process of removing that wall when the roof of the building partially collapsed. The store was open for business when this accident occurred. Patrons and employees who were in the store at the time of the accident alleged personal injuries. Family Dollar settled all of the personal injury claims that had been filed and took an assignment of the claims that it had settled.

¶ 4. Montgomery brought suit for breach of contract against Family Dollar, and a negligence claim against the contractor Bowman. Family Dollar cross-claimed against Bowman for indemnity and counter-claimed against Montgomery on the assigned personal injury claims.

¶ 5. The court found that the roof collapsed because inadequate supports were utilized while removing the load-bearing wall. Montgomery was awarded a total of $211,786.28 in damages and was not apportioned any liability. Liability for all the damages was apportioned as follows: Family Dollar fifty-percent, Bowman thirty-percent, and Turner twenty-percent.

¶ 6. Only Family Dollar and Montgomery appeal to seek reversal of parts of the judgment.

DISCUSSION

¶ 7. The findings of a court conducting a bench trial are given the same deference that a chancellor receives; those findings will not be disturbed when supported by "substantial, credible, and reasonable evidence." City of Jackson v. Brister, 838 So.2d 274, 278 (Miss.2003). Questions of law are reviewed de novo. Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss.1999).

1. Apportionment of Fault to Family Dollar

¶ 8. The court allocated half the fault for the damages to Family Dollar. One of the reasons was that Family Dollar provided the "Scope of Work" to be performed under the contract with Bowman. More importantly to the court, the liability arose from a contract between Family Dollar and the contractor, Montgomery. In the form contract, a blank for designating an architect was completed by identifying Family Dollar as filling that role. There was no description of the architect's duties. The court accepted expert opinion that Family Dollar as the designated architect breached its implied duties by failing to advise the contractors concerning the temporary shoring of the structure.

¶ 9. Family Dollar did not offer any expert testimony indicating a more limited set of duties for an architect. Instead, it argued that the form contract had been improperly completed and that the entry for an architect should have been left blank. Family Dollar argues that neither itself nor Bowman intended for there to be an architect on the project. There was substantial evidence on which Montgomery relies that Family Dollar ignored its responsibilities as an architect. Family Dollar points to the same evidence as support for the parties' understanding that there was no architect. Further, Family Dollar argues that since the contract provided no duties for whomever was named architect, expert testimony as to an architect's general responsibilities could not import such duties into the silent contract.

¶ 10. It is a question of fact of whether Family Dollar was identified as the architect in this contract simply as a mistake when the form was being completed. Family Dollar made that argument, but the trial court never addressed it. Instead, the court in its findings recited the expert's opinion that an architect should advise a contractor on the suitability of removing a load-bearing wall. The argument that Family Dollar was making is that there never was an intent to have an architect, that none was used, and that naming Family Dollar as the architect was the result of a mutual mistake. That the clear language of a contract does not accurately reflect the intentions of the parties is a proper issue for consideration. Dunn v. Dunn, 786 So.2d 1045, 1050 (Miss.2001).

¶ 11. A different and largely unrelated problem with the trial court's decision is that it imposed general, non-contractual duties on Family Dollar simply because the contract identified it as the architect. There was evidence that the complete form from which the contract was derived has other pages describing an architect's duties, but those were not included with what was executed. The word "architect" appears in the executed contract only twice. One is on the cover sheet, which had blanks for designating the parties. The other is in the attachment entitled "Scope of Work," in which Family Dollar required that the plans be sent to its architect in North Carolina. Duties of the contractor and owner are described throughout the contract, but there is no other mention of an architect.

¶ 12. Accepting for purposes of analysis that Family Dollar was the architect, we evaluate as a question of law the trial court's decision to import duties for an architect into a contract that is silent about the duties. Engineers and architects are held to a duty to "exercise ordinary professional skill and diligence," duties usually controlled by the contracts between the parties. Hobson v. Waggoner Engineering, Inc., 878 So.2d 68, 77 (Miss. Ct.App.2003). Only in limited circumstances will architects, independently of express contract language, have "a duty to supervise the construction site to ensure safe operations." Id. at 71-72. "Unless the architect has undertaken by conduct or contract to supervise a construction project, he is under no duty to notify or warn workers or employees of the contractor or subcontractor of hazardous conditions on the construction site." Jones v. James Reeves Contractors, 701 So.2d 774, 786 (Miss.1997).

¶ 13. The trial court found Family Dollar liable because as architect it should have been on the scene to advise the contractor on the temporary shoring while the load-bearing wall was being removed. An office of Family Dollar in North Carolina was to be sent the plans, but there is no suggestion that the corporate architect supervised work or that the plans it was to be sent referred to temporary construction measures. Most importantly, the contract contained no language describing any duties for Family Dollar as architect. Absent a contractual duty such as to supervise the project, there can be no assignment to the architect of the James Reeves—style duty of warning about hazardous conditions, which temporary measures during removal of load-bearing wall proved to be.

¶ 14. Regardless of the answer to the unresolved question of whether naming Family Dollar as the architect in the construction project was a mutual mistake, even as architect, Family Dollar would not have had the duty that is the basis for the liability assigned to it. Consequently, the construction contract was an improper source for liability.

¶ 15. There was a second contract argued below as creating obligations on Family Dollar that it did not fulfill. The court found that Family Dollar had duties relevant to this litigation based upon its lease. The 1982 lease gave Family Dollar the right to make alterations to the premises, but it had to acquire Montgomery's consent to make "structural changes," consent that was not to be withheld unreasonably. Montgomery presented evidence that he objected to the removal of the load-bearing wall, though the trial judge did not rely on that alleged refusal. Under the 1994 amendment to the lease, which contemplated the expansion of the store into the entirety of Montgomery's building, Family Dollar was given the right to make "improvements and alterations" to combine the newly leased space with the existing store. The "work performed by [Family Dollar] shall be done in a workmanlike manner and in compliance with all applicable building codes." It is unclear whether this amendment should be interpreted to have removed the requirement of obtaining the permission of the owner to make structural changes, as the earlier lease terms were continued only to the extent they were not modified by the amendment.

¶ 16. The trial court did not accept...