Yowell v. James Harkins Builder, Inc., 91-CA-0909

• Decision Date: 01 December 1994
• Docket Number: No. 91-CA-0909,91-CA-0909
• Citation: Yowell v. James Harkins Builder, Inc., 645 So.2d 1340 (Miss. 1994)
• Parties: William David YOWELL and Donna Vaughn Yowell v. JAMES HARKINS BUILDER, INC., James Harkins, Cathy Harkins Hammond, John C. Wheeless, Jr., Trustee for First National Bank of Vicksburg, and First National Bank of Vicksburg.
• Court: Mississippi Supreme Court

Page 1340

645 So.2d 1340

William David YOWELL and Donna Vaughn Yowell v.JAMES HARKINS BUILDER, INC., James Harkins, Cathy Harkins Hammond, John C. Wheeless, Jr., Trustee for First National Bank of Vicksburg, and First National Bank of Vicksburg.

No. 91-CA-0909.

Supreme Court of Mississippi.

Dec. 1, 1994.

James H. Herring, Herring Long & Ward, Canton, for appellants.

K. Hayes Callicutt, Ken R. Adcock, Shell Buford Bufkin Callicutt & Perry, Jackson, for appellees.

Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

STATEMENT OF THE CASE

On April 3, 1990, William and Donna Yowell filed a complaint in the Chancery Court of Madison County against James Harkins Builder, Inc.; James Harkins; Cathy Harkins Hammond; Robert B. Barnes; James C. Wheeless, Jr., Trustee for First National Bank of Vicksburg; and First National Bank of Vicksburg, alleging inter alia, that the Defendants participated fraudulently in the sale of a home to the Yowells, with full knowledge that a portion of the lot sold was designated a "floodway" and subject to continual and perpetual flooding.The complaint, in part, prayed for rescission, restitution and other relief.

Robert Barnes filed his separate answer on May 29, 1990.Harkins Builder, James Harkins and Cathy Harkins Hammond filed their answer on May 29, 1990.Wheeless and Bank of Vicksburg filed their respective answers on January 18, 1991.

On February 25, 1991, Harkins Builder, James Harkins and Cathy Harkins Hammond filed a motion to dismiss, pursuant to M.R.C.P. 11 & 12 and a motion for summary judgment pursuant to M.R.C.P. 56(b).

The Yowells on June 26, 1991, filed their response to the motions for summary judgment.¹

A hearing on the motions for summary judgment was held on July 2, 1991, with all parties present.

By its statement from the bench and by Order dated July 2, 1991, the trial court granted summary judgment in favor of all Defendants.Thereafter, on July 12, 1991, the Yowells filed a motion to amend/alter the trial court's grant of summary judgment, pursuant to Miss.R.Civ.P. 59.The trial court, in turn, denied this motion on August 9, 1991.

Aggrieved by the lower court's grant of summary judgment, the Yowells perfected this appeal and present one issue for this Court's consideration:

WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF JAMES HARKINS BUILDER, INC.?

Harkins Builder, James Harkins and Cathy Harkins Hammond filed their brief together.Robert Barnes, Wheeless, and Bank of Vicksburg, are not parties to this appeal.

STATEMENT OF THE FACTS

On March 31, 1989, James Harkins Builder, Inc., filed for and received from the City of Madison, a permit to build a house on Lot 17, situated in part 2 of the Trace Cove subdivision.²The plat filed with the City of Madison showed the property to be within a flood plain and floodway area.³

Sometime prior to September, 1989, the Yowells met with James Harkins at Lot 17, within the Trace Cove subdivision, part 2, to discuss the details of a sale of that lot and a house under construction and situated on 164 Trace Cove Drive.Prior to meeting to execute the contract for sale, the Yowells noticed some pools of water in the backyard of the property and notified Harkins.Harkins, in turn relayed that the lot would be grazed to alleviate this problem.

On September 11, 1989, the Yowells met again with Harkins and also with Cathy Harkins Hammond to sign the contract for sale of the property.

The Yowells, on October 1, 1989, requested from Harkins, copies of the proposed closing papers, including the appraisal, survey, and deed of trust.

On October 5, 1989, the Yowells received copies of certain documents pertaining to the property from the Bank of Vicksburg.That same day, the Yowells again met with Cathy Harkins Hammond to go over certain closing documents.During the course of that meeting, and upon examination of the appraisal, the Yowells learned that the property was being surveyed to determine whether it was located within a federally designated flood plain.In addition, a copy of the Trace Cove subdivision plat (prepared by Robert B. Barnes) revealed that all lots within part 2 of the Trace Cove subdivision were actually situated within the designated flood plain.The Yowells further inquired about the effect of the notation on the appraisal concerning the flood plain and were told that the subject property was not within the designated flood plain and that flood insurance would therefore not be necessary.

The next day, Cathy Harkins Hammond contacted the Yowells to advise them that she had been mistaken as to Lot 17 being within the designated flood plain and therefore, flood insurance would indeed be required.However, she also relayed to the Yowells that Harkins would pay the flood insurance premiums.The Yowells had moved into the home by this time.

The sale and purchase of said property was consummated on October 12, 1989, with the Yowells paying Harkins the purchase price of $118.000.00, consisting of $26,000.00 down payment and $92,000.00 secured by a mortgage from First National Bank of Vicksburg, and Harkins delivering to the Yowells, a warranty deed conveying the subject property.In addition, the Yowells paid (as part of the $3,500.00 closing costs) the sum of $136.25 to Barnes for the preparation of the subdivision plat.Part of the contract for sale included a provision wherein Harkins Builder agreed to "fill in backyard and drain off properly."Pat Guess, an engineer chosen by the Yowells and hired by Harkins Builder, was later employed to render a professional opinion as to correcting the drainage problems.

On October 25, 1989, the Yowells discovered their yard and property covered with some three to four feet of water.They notified Harkins Builder of this fact and James Harkins responded that he would send someone to put down a load of dirt and hay.⁴

The Yowell's property flooded again on January 5, 1990, and they once more notified Harkins Builder and also Denson Robinson, the Public Works Director for the City of Madison.The Yowells learned from Robinson that their property was located in a "floodway" within the flood plain.In an affidavit, Robinson stated that the Yowell's home was constructed in accordance with all local and federal regulations.In addition, FEMA (Federal Emergency Management Agency) corresponded with the Yowells and confirmed that their home was not built within the floodway and that the City of Madison properly issued all permits.

After experiencing numerous additional episodes of their property flooding, the Yowells filed this suit to rescind the sales contract.In part, the Yowells alleged that Harkins Builder, James Harkins and Cathy Harkins Hammond fraudulently concealed existing knowledge of the fact that Lot 17 was within a "floodway" and that Cathy Harkins Hammond knew or should have known the location and condition of the lots within part 2 of the Trace Cove subdivision.

On appeal, the Yowells contend that the trial court committed reversible error in granting summary judgment as numerous material facts were in dispute concerning the alleged fraudulent concealment on the part of James Harkins and Cathy Harkins Hammond.Harkins and Hammond counter this argument by asserting that the Yowells failed to permit them to enter on the property in order to correct the drainage problems pursuant to the opinion rendered by Pat Guess.Harkins and Hammond further allege that the Yowells filed suit before permitting them to repair and rectify the drainage problems.⁵

After due consideration of all issues presented by this appeal, we find that there were questions of material fact in dispute which necessitate additional consideration.Therefore, we reverse and remand for a trial on the merits.

DISCUSSION OF THE LAW

Standard of Review for Summary Judgment

We employ a de novo standard of review in analyzing a lower court's grant of a summary judgment.Short v. Columbus Rubber & Gasket Co., Inc., 535 So.2d 61, 63(Miss.1988).

This Court conducts a de novo review of orders granting or denying summary judgment and looks at all

the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.The evidence must be viewed in the light most favorable to the party against whom the motion has been made.If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor.Otherwise, the motion should be denied.Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party.That is, the non-movant would be given the benefit of the doubt.

Mantachie Natural Gas District v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172(Miss.1992)(emphasis added)(citations omitted).

This burden of proving that no disputed factual issues exist rests with the Appellees, and is one of production and persuasion, not of proof.Fruchter v. Lynch Oil Co., 522 So.2d 195, 198(Miss.1988).A motion for summary judgment lies only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law.Miss.R.Civ.P. 56(c).To prevent summary judgment, the non-moving party must establish a genuine issue of material fact by means allowable under the Rule.Lyle v. Mladinich, 584 So.2d 397, 398(Miss.1991).

Finally, a motion for summary judgment should be overruled unless the trial court finds, beyond any reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim.McFadden v. State, 580 So.2d 1210(Miss.1991)."[T]he Court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be...