Sports Page Inc. v. Punzo

Decision Date23 November 2004
Docket NumberNo. 2003-CA-00319-COA.,2003-CA-00319-COA.
Citation900 So.2d 1193
PartiesSPORTS PAGE INCORPORATED d/b/a David M's Investments, David E. Mattina, Jr. d/b/a Sports Page Incorporated, David E. Mattina, Jr. d/b/a Boomers and David E. Mattina, Jr., Individually, Appellants/Cross Appellees v. Charles N. PUNZO d/b/a Punzo Construction Co., Appellee/Cross-Appellant.
CourtMississippi Court of Appeals

Steven Alfred Kohnke, Fred Mannino, Biloxi, attorneys for appellant.

Earl L. Denham, Wendy C. Hollingsworth, Ocean Springs, attorneys for appellee.

Before KING, C.J., IRVING and MYERS, JJ.

MYERS, J., for the Court.

¶ 1. On May 5, 1998, Charles Punzo, d/b/a Punzo Construction Company, filed a complaint against David Mattina, d/b/a David M's Investments, in the Circuit Court of Harrison County, Mississippi, Second Judicial District, alleging breach of an oral contract to renovate a commercial building. On December 10, 1999, Punzo filed his amended complaint, in which the name of the defendant, Mattina, was corrected. On February 4, 2000, Mattina answered, denying the substance of the claims against him, and counterclaimed against Punzo for improperly performing work under the contract and for tortious interference with business. The matter proceeded through discovery to a trial on the merits. On October 22, 2002, the circuit court granted Punzo's motion for directed verdict on Mattina's counterclaims.

¶ 2. Also, on October 22, 2002, the jury returned a verdict in favor of Punzo and awarded him $94,166.89 in damages. On October 29, 2002, a judgment on jury verdict was entered in which the court allowed Punzo to move for attorney's fees but denied his request to submit the issue of punitive damages to the jury. On November 7, 2002, Mattina filed motions for a new trial and for modification of judgment, which were subsequently denied by the court. On November 8, 2002, Punzo filed a motion to amend judgment to change the prejudgment interest calculation date. On January 16, 2003, the circuit court entered an amended judgment awarding Punzo attorney's fees of $50,025.86 and prejudgment interest on the principal amount of $88,743.48, dating from the filing of the amended complaint. Mattina appeals, asserting the following issues:

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A NEW TRIAL GIVEN ITS FINDINGS ON THE ISSUE OF PUNZO'S LEASE WITH CSX?
II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A NEW TRIAL GIVEN ITS RULINGS ON MATTINA'S COUNTERCLAIM FOR TORTIOUS INTERFERENCE WITH BUSINESS?
III. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A NEW TRIAL GIVEN ITS DECISION NOT TO ALLOW THE TESTIMONY OF MATTINA'S EXPERT WITNESS?
IV. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A NEW TRIAL GIVEN ITS DECISION TO GRANT PUNZO'S MOTION FOR DIRECTED VERDICT ON MATTINA'S COUNTERCLAIM FOR FAILURE TO PROPERLY PERFORM WORK UNDER THE CONTRACT?
V. DID THE TRIAL COURT ERR IN AWARDING ATTORNEY'S FEES TO PUNZO?
VI. DID THE TRIAL COURT ERR IN AWARDING PREJUDGMENT INTEREST TO PUNZO?
VII. DID THE TRIAL COURT ERR IN NOT GRANTING A REDUCTION IN THE AMOUNT OF THE DAMAGES AWARD?
VIII. DID THE TRIAL COURT ERR IN EXCLUDING EVIDENCE OF A CHECK ALLEGEDLY OFFERED BY MATTINA TO SETTLE THE CASE?

¶ 3. Finding that the trial court erred in awarding attorney's fees and prejudgment interest, we reverse and render on the award of attorney's fees and prejudgment interest. Finding no reversible error in any of the remaining issues on appeal, we affirm the trial court's ruling on those remaining issues.

¶ 4. Punzo raises the following issue on cross-appeal:

I. DID THE TRIAL COURT ERR IN FIXING THE DATE FOR CALCULATION OF PREJUDGMENT INTEREST?

¶ 5. Having found that the award of prejudgment interest, whenever calculated, was improper, we find that this issue is moot.

FACTS

¶ 6. Mattina wished to renovate the old Geno's Pizza building in Biloxi and open a new restaurant in that location. While dining out one night, Mattina saw Punzo and recalled that Punzo had done similar construction work for Mattina in the past. They discussed the project, Punzo viewed the building to be renovated, and Punzo agreed to perform the work at a future date. The contract was entirely oral, and there were no formal plans or specifications prepared. Instead, Mattina simply asked Punzo to spruce the place up and bring it "up to code," and Punzo agreed orally to work on the cost-plus basis used on other jobs for Mattina.

¶ 7. Punzo acquired a $20,000 building permit, Mattina paid Punzo a $15,000 initial draw, and the work began. Because there was no written contract or set specifications, the requirements for the work often changed, and many aspects of the project required redoing or extra work. During the course of the project, Mattina paid $85,000 in draws to Punzo.

¶ 8. When the job was completed, Punzo telephoned Mattina to discuss the final bill for the project. Mattina wanted to be told the final amount over the phone, but Punzo, expressing some reluctance, preferred to deliver the bill personally. Mattina insisted on being told the final amount, and Punzo finally obliged. The total cost for the project was $173,743.48. This apparently unexpected amount "knocked the socks off" of Mattina, who lost his temper and, as human beings are want to do in a fit of anger, hurled certain choice expletives at Punzo. Unmoved, Punzo stood by his bill and demanded payment. Mattina replied that the bill was too high and that Punzo would have to take legal action in order to receive payment. As a result, Punzo brought this suit.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A NEW TRIAL GIVEN ITS FINDINGS ON THE ISSUE OF PUNZO'S LEASE WITH CSX?

¶ 9. The first issue on appeal, as we have stated, combines two of the issues asserted by Mattina. Mattina argues, in essence, that the trial court erred in not granting a new trial given its rulings on the issue of Punzo's lease with CSX. Punzo argues that the trial court's ruling in this regard was correct.

STANDARD OF REVIEW

¶ 10. We review a trial court's grant or denial of a motion for new trial for abuse of discretion. Redhead v. Entergy Mississippi, Inc., 828 So.2d 801, 806 (¶ 11) (Miss. Ct.App.2001). We give the trial court's ruling on a motion for new trial great deference, and we will only reverse if the verdict shocks the conscience of the court or represents a miscarriage of justice. Gautier v. Mississippi Transp. Comm'n, 839 So.2d 588, 592 (¶ 14) (Miss.Ct.App.2003); Estate of Carter v. Phillips And Phillips Const. Co., Inc., 860 So.2d 332, 336 (¶ 13) (Miss.Ct.App.2003).

DISCUSSION

¶ 11. After the dispute arose between the parties, Punzo leased from CSX an adjacent property to the newly renovated building, now Jazzepi's Restaurant. The adjacent property had been used for some years by the previous occupant of the building as parking space. Punzo leased the property and put up a fence of some kind to prevent anyone from parking on the leased space. The fence was entirely on the leased property and did not prevent anyone from physically entering Jazzepi's Restaurant. Punzo may have intended this action as a self-help measure to pressure Mattina into paying the final bill for the renovation work, but this fact was not conclusively decided by the trial court. After a short time, during which Mattina secured a temporary restraining order and filed suit in the chancery court, Punzo abandoned the lease. Mattina then dismissed his action in chancery court.

¶ 12. The trial judge ruled that Punzo's actions on his leased property were legal, not tortious, and that Mattina's failure to secure adequate parking for his customers did not transform Punzo's otherwise legal use of his leased property into a tortious interference with business. Based upon these findings, the trial court excluded evidence of the lease and the actions Punzo took under the lease. There was also apparently some concern that the jury might be confused by this evidence.

¶ 13. In spite of the exclusion of this evidence, and much to the chagrin of the trial judge, Mattina attempted on several occasions to re-visit the issues surrounding the CSX lease and the way Punzo acted under that lease. Mattina apparently hoped to tarnish Punzo's image in the eyes of the jury by putting on evidence of Punzo's supposed malicious misuse of his legal rights under the CSX lease.

¶ 14. Employing the applicable standard of review, which requires viewing the evidence in a light most favorable to the non-movant and taking as true all evidence supporting the claims or defenses of the non-moving party, we find that the trial court's rulings on this issue and subsequent refusal to grant a new trial based upon alleged error in those rulings did not constitute an abuse of discretion. Estate of Carter, 860 So.2d at 336 (¶ 13). The trial court acted well within its discretion in holding that Punzo's actions as lessee of the adjacent property did not constitute a tort in this case. While the previous occupant of the building had apparently used the leased property for parking, there is no indication that the previous occupant or Mattina had any legal right to use the property. Other than reference to a custom or tradition of customers of the building parking on the leased property, Mattina offered no proof of title or other legal right to use the leased property. Mattina's assumption that the parking tradition would continue indefinitely does not rise to the level of a legal right that could have been violated by the particular actions taken by Punzo under the lease. The record does not reflect that Mattina made any showing of a prescriptive right to use the leased property for parking.

¶ 15. Punzo did nothing outside the physical bounds of his leased property, and he did nothing to physically restrict customer access to the restaurant. That is, he did not maintain any kind of obstruction in front of the building or on a public...

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