v. W.C. Fore Trucking, Inc.

• Decision Date: 12 June 2012
• Docket Number: No. 2010–CA–00177–COA.,2010–CA–00177–COA.
• Citation: 134 So.3d 752
• Court: Mississippi Court of Appeals
• Parties: T.C.B. CONSTRUCTION COMPANY, INC., Appellant/Cross–Appellee v. W.C. FORE TRUCKING, INC., Appellee/Cross–Appellant.

134 So.3d 752

T.C.B. CONSTRUCTION COMPANY, INC., Appellant/Cross–Appellee

v.W.C. FORE TRUCKING, INC., Appellee/Cross–Appellant.

No. 2010–CA–00177–COA.

Court of Appeals of Mississippi.

June 12, 2012.

Lawrence Cary Gunn Jr., Hattiesburg, William F. Goodman Jr., Jackson, attorneys for appellant.

James K. Wetzel, Gulfport, Michael E. Cox, Biloxi, attorneys for appellee.

EN BANC.

MODIFIED OPINION ON REHEARING

MAXWELL, J., for the Court:

¶ 1. The motion for rehearing is denied. The court's original opinion is withdrawn, and this opinion is substituted in lieu thereof.

¶ 2. T.C.B. Construction Company, Inc. (TCB) sued W.C. Fore Trucking, Inc. (Fore) for breach of contract. The suit was based on Fore's non-payment for work TCB performed removing debris south of Highway 53 in Harrison County, Mississippi, after Hurricane Katrina. Fore disagreed that the subcontract between the two companies was modified to include this area. Although the jury found Fore had modified the subcontract, it awarded TCB only $3,577,583.34 in damages, which in effect compensated TCB for only half of the work it undisputably performed. On appeal, TCB argues it was entitled, as a matter of law, to $6,634,436.69, based on the undisputed amount of debris it removed. Specifically, TCB claims it was entitled to summary judgment or a directed verdict in its favor because Fore was estopped from denying the subcontract's modification.

¶ 3. Under Mississippi's quasi-estoppel doctrine, a party cannot claim the benefits of a transaction and at the same time repudiate its obligations. Fore accepted the benefits of the modified subcontract with TCB, billing Harrison County (County) for each cubic yard of debris TCB removed south of Highway 53. And Fore admits that neither it nor any other subcontractor besides TCB performed the work for which Fore was compensated. Based on Mississippi's quasi-estoppel doctrine, we find Fore is estopped from denying it owed TCB any portion of the approximately $8.5 million it collected from the County for TCB's work south of Highway 53. Thus, the circuit court erred by submitting the issues of modification and damages to the jury. We reverse the circuit court's $3,577,583.34 judgment and render judgment in TCB's favor in the amount of $6,634,436.69.

¶ 4. The circuit court correctly awarded TCB prejudgment interest of eight percent. But we find this interest should have been awarded from the date of breach, not the date TCB filed its complaint. Therefore, we remand to the circuit court to calculate prejudgment interest. We affirm the circuit court's directed verdict in favor of Fore on the issues of punitive damages and attorney's fees.

BACKGROUNDS FACTS

¶ 5. On August 29, 2005, the County began clearing debris left in the wake of Hurricane Katrina from its right of ways. It divided the county into three zones. Fore won the contract to remove debris in Zone 2. The County agreed to pay Fore $10.64 per cubic yard of debris removed from this zone.

¶ 6. On September 16, 2005, Fore entered into a subcontract with TCB to haul debris in Zone 2 north of Highway 53 for $8.90 per cubic yard. The subcontract required TCB to send Fore daily reports, referred to as “truck tickets.” The subcontract also had an express good-faith clause, which stated “the contract can and will be modified based upon facts and circumstances of all debris removal.”

¶ 7. TCB immediately began clearing debris in Zone 2 north of Highway 53. Nine days later, on September 25, 2005, TCB began clearing debris south of Highway 53. TCB's representatives testified TCB moved south of Highway 53 at the request of Fore's principal, W.C. Fore (W.C.). TCB continued moving south, eventually clearing debris to I–10. Though W.C. denied his company had asked TCB to clear south of Highway 53, after September 25, neither Fore nor any other subcontractor cleared any debris from this area. It is undisputed that TCB was the only company that removed debris south of Highway 53.

¶ 8. An independent accounting firm, R.W. Beck & Associates (Beck), oversaw the debris removal. Each day Beck inspected the trucks removing the debris. It also calculated the cubic yardage and verified the location from which the debris had been removed. Once Beck approved the truck tickets, it sent copies to Fore. TCB also sent Fore weekly invoices. Fore utilized the figures contained in TCB's invoices to create its own invoices, which Fore submitted to the County for payment. Beck verified the invoices and told the County these invoices should be paid; and the County, in turn, looked to the Federal Emergency Management Agency (FEMA) for funds to pay Fore's invoices.

¶ 9. Fore claims in March 2006 it first learned TCB had been hauling debris from south of Highway 53. Although Fore stopped paying TCB's invoices at this point, it does not dispute it billed the County for all of the debris TCB hauled south of Highway 53. And the County paid Fore in full for each invoice submitted. In total, Fore received $12,292,176.10 from the County based on debris cleared by TCB. This represents approximately 1,155,280 cubic yards, at $10.64 per cubic yards. TCB claims it is entitled to $10,273,125.77 of that money, or $8.90 for each yard it undisputably hauled. Fore's payments to TCB totaled only $3,638,689.08, a difference of $6,634,436.69.

PROCEDURAL HISTORY

¶ 10. TCB sued Fore for breach of contract. To recover for breach of contract, a plaintiff has the burden to prove by preponderance of the evidence: (1) the existence of a valid and binding contract, (2) the defendant's breach of the contract, and (3) resulting monetary damages. Warwick v. Matheney, 603 So.2d 330, 336 (Miss.1992). TCB argued: (1) the subcontract, in which Fore promised to pay TCB $8.90 for each cubic yard of debris it removed, was orally modified to include debris removal south of Highway 53 as well as north of Highway 53; (2) TCB removed debris south of Highway 53 on Fore's behalf, but despite having billed the County for this work, Fore did not pay TCB; and (3) TCB suffered damages of $6,634,436.69. Fore countered that the subcontract only concerned the area north of Highway 53 and was never modified. But Fore conceded it had billed the County for TCB's work south of Highway 53, received payment in full, and did not compensate TCB. Fore argued TCB was only entitled to $3,117,958 for the approximately 350,332 cubic yards TCB cleared north of Highway 53. Fore counterclaimed for the difference between what it paid TCB ($3,638,689.08) and what TCB earned north of Highway 53 ($3,117,958.09)—an alleged “overpayment” of $520,730.99.

¶ 11. Before trial, TCB moved for summary judgment. It argued there were no disputed facts concerning the modified subcontract's existence because Fore actually utilized TCB's invoices to bill the County for debris removed south of Highway 53, thus proving the subcontract had been modified. The circuit judge denied summary judgment, finding W.C.'s denial of the modification was sufficient to create a disputed fact issue. At the close of trial, TCB moved for a directed verdict. TCB argued it was entitled to a judgment as a matter of law in the amount of $6,634,436.69 because W.C.'s contradictory testimony was not sufficient to overcome the completion of the contract and Fore's acceptance of the work and money. The circuit judge denied the request for a directed verdict.

¶ 12. The circuit court submitted the issues of the modified subcontract's existence, breach, and the amount of damages to the jury. TCB questioned whether the jury should decide the amount of damages and argued that if the jury found the subcontract had been modified then it should award TCB the set amount of money represented by invoices Fore accepted from TCB and billed to the County. The circuit judge rejected TCB's argument that the amount of damages was set, deciding “to leave the amount of the verdict up to the jury in its discretion....” In a special interrogatory verdict form, the jury found the subcontract had been modified but that TCB was only entitled to $4,098,314.33 for breach of the modified subcontract. It also awarded Fore $520,730.99 on its “overpayment” counterclaim. The result was a $3,577,583.34 net award for TCB.

¶ 13. The circuit judge awarded TCB prejudgment interest of eight percent, accruing from the date TCB filed its complaint. The circuit judge refused to submit TCB's punitive damages claim to the jury.

ISSUES ON APPEAL

¶ 14. On appeal, TCB argues the issues of the existence of the modified subcontract and the amount of damages owed for Fore's breach should not have been submitted to the jury. Instead, TCB claims, as a matter of law, that Fore owed it $6,634,436.69 based on Mississippi's doctrine of quasi-estoppel, as applied in Hoerner v. First National Bank of Jackson, 254 So.2d 754, 761–62 (Miss.1972). Fore asserts the doctrine of quasi-estoppel is not applicable to TCB's claim. And even if the doctrine did apply, Fore contends TCB waived the argument at the trial level by not specifically pleading and arguing estoppel.

¶ 15. As to prejudgment interest, TCB claims that because the amount of damages was liquidated, it is entitled to the eight-percent prejudgment interest from the date of breach, not the later date of filing the complaint. Fore cross-appeals on this issue, asserting TCB's damages were unliquidated; thus, the award of prejudgment interest was an abuse of discretion.

¶ 16. TCB also requests that we remand the issue of punitive damages for a jury trial.

DISCUSSION

I. Modified Subcontract and Damages

¶ 17. TCB moved for a directed verdict in its favor on its breach-of-contract claim. We review the denial of a directed verdict de novo. Figueroa v. Orleans, 42 So.3d 49, 52 (¶ 11) (Miss.Ct.App.2010) (citing Windmon v. Marshall, 926 So.2d 867, 872 (¶ 20) (Miss.2006)). “If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for...