Wells v. Price
| Decision Date | 11 December 2012 |
| Docket Number | No. 2011–CA–01040–COA.,2011–CA–01040–COA. |
| Citation | 102 So.3d 1250 |
| Parties | Sheila Danette WELLS, Appellant v. Frank PRICE, Phil Price d/b/a Price Construction Company and Canton Sheet Metal and Roofing, Appellees. |
| Court | Mississippi Court of Appeals |
OPINION TEXT STARTS HERE
Donna M. Meehan, Michael D. Simmons, Jackson, attorneys for appellant.
Jeffrey L. Hall, Hattiesburg, Wiley J. Barbour Jr., attorneys for appellees.
Before IRVING, P.J., BARNES, ISHEE and ROBERTS, JJ.
BARNES, J., for the Court:
¶ 1. This case involves a contractual dispute between Sheila Danette Wells and Price Construction Company (Price) regarding its remodeling of Wells's home. In 2004, Price sued Wells for breach of a construction contract, claiming that Wells owed Price for certain changes Wells requested to the original work plans, which were performed by Price. Wells counterclaimed for poor workmanship on the remodeling job.
¶ 2. After several years of litigation and a bench trial which was held in abeyance, the trial court narrowed the issues to concern only the deficiencies of the roof installed by Price. Wells had contracted for a standing-seam metal roof, but instead, Price installed a corrugated metal roof at a substantially lower price, and the roof leaked. The court appointed an independent third-party contractor who found the roof deficient. The trial court then appointed Canton Roofing to make all necessary “repairs and/or replacements” on the roof, and ordered Price to pay the costs incurred by Canton Roofing. Canton Roofing determined it could not repair the existing roof and recommended it be replaced with a standing-seam metal roof. Canton Roofing proceeded to replace the roof at a cost of $41,750. However, Price claimed that it was never notified by Wells that Canton Roofing was replacing the roof.
¶ 3. Canton Roofing made repeated demands for payment from Price, but Price objected to paying this expense. The trial court found: “[Canton Roofing] made an inspection and determined that it could not repair and warrant the roof, but recommended full replacement, which was never explicitly approved by [Price].” Accordingly, the trial court stated another hearing should have occurred before the roof's replacement. The trial court modified its prior order, providing that Price pay only sixty percent of the cost, and Wells pay the remaining balance. Price paid its expense allocation to Canton Roofing; Wells did not.1
¶ 4. After a hearing and the conclusion of the bench trial, the trial court issued a final judgment, entitling Wells to meaning Wells did not have to pay any additional amounts on extra work performed by Price. However, the trial court reaffirmed that Wells had to pay forty percent of the cost of the replacement roof to Canton Roofing. Wells now appeals this judgment.
¶ 5. While the trial court may have erred in requiring Wells to pay forty percent of the cost of the replacement roof, Wells did not provide this Court with an adequate record upon which we can reverse the trial court's judgment; therefore, we affirm.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
¶ 6. In April 2003, a construction contract was entered into between Price and Wells to remodel and build an addition to Wells's home located in Magnolia, Mississippi. The project, as originally planned and specified, would have cost $268,552; however, Wells made five “change orders,” increasing the contract price substantially.2 In November and December 2003, Wells engaged home inspectors, who concluded the work by Price to be incomplete, unworkmanlike, and defective. As a result of a payment dispute, in January 2004, Price filed a breach-of-contract claim against Wells in the Amite County Chancery Court, seeking $108,785.70 in damages, and other costs. Wells counterclaimed for breach of contract for deficiencies and poor workmanship, among other claims.
¶ 7. Extensive discovery ensued. In 2007, the case was transferred to the Amite County Circuit Court. In 2008, a bench trial on the merits began. After three and one-half days of testimony,3 the parties requested the trial be held in abeyance while they attempted to resolve the dispute. However, no resolution was reached, and in February 2009, the trial court issued an order narrowing the issues. The parties agreed on a licensed independent contractor, David Battaglia, who would inspect the home and submit a report to the court. He was to examine the quality of the workmanship on the home and the completion of contractual specifications. Price would then have thirty days to rectify all construction defects and make repairs noted in the report. The trial court ordered Price to pay for all repairs.
¶ 8. Battaglia inspected the home. In a report, Battaglia stated, regarding the roof:
Specifications called for a standing seam metal roof, however, Contractor installed corrugated metal roof panels on the main house and adjacent garage/cottage which is a significant difference in respect to price and quality. The issue at hand is the repair of the existing roofing system.
At the time of my inspection, I observed several places where screws were rusting and backing out on the roof. I am sure that these were some of the areas where water entered the dwelling below.... I observed several areas on the interior where there were stains from the water intrusion....
The roof repairs must ensure that the roof is watertight and there should be no evidence, interior or exterior to the house, of water intrusion once the repairs have been completed.
IMPORTANT:
The repairs to the metal roof will have to be specified by the original metal fabrication manufacturer representative and a written report of the findings and repair method should be provided and signed off by the representative to ensure the Warranty is honored over the long run.
In its April 29, 2009 order, the trial court adopted Battaglia's report.
¶ 9. After a hearing in August 2009 4 to resolve the pending issues related to the “installation, repairs and defective state” of the roof, in September 2009, the trial court appointed Canton Roofing “to make all necessary repairs, replacements and to do all things necessary to ensure [Wells's] roof is satisfactory, watertight and meets all good workmanlike industry standards.” The trial court ordered all costs and expenses associated with Canton Roofing's work to be paid promptly by Price.
¶ 10. In October 2009, Canton Roofing sent an email to counsel for Wells, stating it could not repair the roof and insure the roof would be watertight. Instead, it recommended removal of the current roof and replacement with a standing-seam metal roof. Attached to the email was a quote for the new roof of $41,750 plus tax. Counsel for Wells claimed she sent this email and attached the quote proposal to counsel for Price; however, counsel for Price claimed he never received either the email or the proposal. Wells's counsel admitted that no hard copy of this information was sent to Price, but she submitted proof of sending the information electronically. Wells's counsel stated she did not hear any objection from Price about the recommendation and proposal. Canton Roofing proceeded to replace the roof.5
¶ 11. On January 8, 2010, Canton Roofing sent its first invoice to Price for $18,000 plus tax. This invoice was forwarded to Price's counsel on January 11, 2010, requesting payment in ten days as required by the court. The invoice also reflected the total price of the roof at $41,750. Price claimed it did not know the roof had been replaced until February 22, 2010, and objected to paying the invoice.
¶ 12. After repeated demands to Price by Canton Roofing for payment, Price filed a motion to clarify previous court orders in April 2010. In the motion, Price noted that replacement with a corrugated roof rather than a standing-seam roof would have only cost approximately $12,000, not $41,000. Also, counsel for Price claimed he was unaware of the standing-seam roof replacement proposal until February 22, 2010, and that he had no record of receiving Wells's October 2009 email. After a telephonic hearing on the motion, on June 16, 2010, the trial court found that once Canton Roofing determined the roof needed to be completely replaced, another hearing should have been conducted. Also, the trial court found Price had “never explicitly approved” Canton Roofing's recommendation to replace the roof. Therefore, the trial court modified its September 2009 order, providing Price pay Canton Roofing only sixty percent of the roof replacement, or $26,803.50 including tax, instead of the full cost. Wells was ordered to pay the remainder of the balance, or $17,869.
¶ 13. In response, Wells filed a motion to reconsider. In the motion, Wells noted that during the June 2010 telephonic hearing (for which there is no transcript in the record), the trial judge had based his decision on his belief that “[i]t appears Ms. Wells is getting a windfall ... because she wasn't originally supposed to get a standing seam metal roof.” However, Wells declared that she contracted for and paid for a standing-seam metal roof in the original remodel plans and contract. Wells also noted that she originally complained about the roof because it leaked and was causing damage to her home, not because it was a corrugated metal roof.
¶ 14. In July 2010, Price and Canton Roofing entered an agreed stipulation, which stated that of the $26,803.50 that Price owed them, Price would only have to pay $22,500. In September 2010, Canton Roofing gave the trial court notice that Price “had paid monies ... sufficient to satisfy Price's obligations” under the June 16, 2010 order. Canton Roofing then requested payment from Wells. In January 2011, a hearing 6 was held on Wells's motion to reconsider. The trial judge...
To continue reading
Request your trial
-
Evergreen Lumber & Truss, Inc. v. Certainteed Corp.
..."[t]he existence of a contract and its terms are questions of fact to be resolved by the fact-finder . . . ." Wells v. Price, 102 So. 3d 1250, 1256 (Miss. Ct. App. 2012) (quoting Anderson v. Kimbrough, 741 So. 2d 1041, 1045 (Miss. Ct. App. 1999)). CertainTeed maintains that no valid and bin......
-
Aries Bldg. Sys., LLC v. Pike Cnty.
...Generally, "the existence of a contract and its terms are questions of fact to be resolved by the fact-finder." Wells v.Price, 102 So. 3d 1250, 1256 (Miss. Ct. App. 2012). An implied contract is one that arises from the conduct of the parties. Dominquez v. Palmer, 970 So. 2d 737, 740-41 (Mi......
- Herrington v. State
-
McCarley v. McCarley
... ... the appellant to provide a record that contains all information needed for an understanding of matters relied upon for reversal on appeal." Wells v. Price , 102 So.3d 1250, 1259 ( 30) (Miss. Ct. App. 2012). This Court cannot consider or act upon matters not included in the record; rather, we ... ...