Benchmark Health Care Center, Inc. v. Cain

912 So. 2d 175, 2005 WL 2430630
CourtCourt of Appeals of Mississippi
DecidedOctober 4, 2005
Docket2003-CA-02399-COA
StatusPublished
Cited by19 cases

This text of 912 So. 2d 175 (Benchmark Health Care Center, Inc. v. Cain) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benchmark Health Care Center, Inc. v. Cain, 912 So. 2d 175, 2005 WL 2430630 (Mich. Ct. App. 2005).

Opinion

912 So.2d 175 (2005)

BENCHMARK HEALTH CARE CENTER, INC., Appellant/Cross-Appellee
v.
H. Ted CAIN d/b/a Quest Rehab, Appellee/Cross-Appellant.

No. 2003-CA-02399-COA.

Court of Appeals of Mississippi.

October 4, 2005.

*177 Charles W. Wright Jr., Brookhaven, attorney for appellant.

Darren E. Gray, attorney for appellee.

Before LEE, P.J., MYERS and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. H. Ted Cain d/b/a Quest Rehab (Quest) filed suit against Benchmark Health Care, Inc. (Benchmark) in the Circuit Court of Lauderdale County on August 22, 1998, asserting breach of contract. On July 30, 2003, a Lauderdale County jury returned a verdict in favor of Quest and ordered Benchmark to pay damages in the amount of $130,774.48. The trial court entered judgment on the jury verdict. Aggrieved by the judgment of the circuit court, Benchmark appeals to this Court, and Quest cross-appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On June 16, 1997, Quest entered into a one-year contract with Benchmark. The contract generally provided that Quest would provide rehabilitation services, including physical therapy, speech therapy, and occupational therapy, in the nursing facility owned by Benchmark. Benchmark would be responsible for billing and collecting payment from the patients treated by Quest.[1] Quest would be required to submit an invoice each month for the services it rendered, and Benchmark would be responsible for paying the invoice within thirty days. Benchmark was required *178 to remit payment to Quest whether or not Benchmark was able to collect payment for Quest's services. The contract provided that either party could terminate the contract for "just cause" upon thirty days' prior written notice. Furthermore, either party could terminate the contract for any reason after the initial one-year term had expired upon giving sixty days' notice to the other party. Both parties began performance under the contract in June 1997.

¶ 3. From the outset it appears that Benchmark fell behind in payments. For the first two months, June and July 1997, Benchmark paid Quest's invoices in full, although payment was not timely. Quest's invoice for August was not paid until December 1, and then only partial payment was remitted. Quest continued to submit invoices for the services rendered in October, November, and December. No additional payment was received until December 16, when Benchmark paid the outstanding balance on the August invoice. On the same day Benchmark notified Quest in writing that it was cancelling the contract effective January 31, 1998. No cause was given for this cancellation.

¶ 4. Quest continued to perform under the contract in January, but on January 9, 1998, Benchmark notified Quest again by letter to discontinue all therapy at the facility. By this time, the amount outstanding and unpaid by Benchmark was $197,496.17, which included invoices for the months of September, October, November, and December, 1997, and January, 1998. Benchmark paid Quest $100,000 on January 20 and $12,021.69 on March 19. At this point, Benchmark had paid $219,451.08 of the $298,925.56 billed by Quest since the contract was entered into in June 1997. The difference between the amount paid by Benchmark and the amount alleged by Quest to be owed was $79,474.48. On March 27, 1998, Quest made demand on Benchmark for payment of the $79,474.48. Benchmark submitted a check for $30,616.71 to Quest as payment in full, less claims outstanding of $4,205.49. Quest returned this payment to Benchmark, and on August 28, 1998, filed suit for breach of contract and damages of $79,474.48 plus lost profits in the amount of $99,086.97.

¶ 5. On July 30, 2003, a jury found that Benchmark had breached the contract with Quest, and rendered a general verdict for Quest in the amount of $130,774.48. This amount was a single figure; the jury was not asked to delineate what part of the verdict represented lost profits and what part was an award for specific damages. Following the verdict, both parties filed a flurry of post-trial motions. Benchmark filed a motion for judgment notwithstanding the verdict and a motion for remittitur or, in the alternative, a new trial. Quest filed a motion for award of prejudgment interest and a motion for additur. The trial court entered judgment on the jury verdict on September 8, 2003, and overruled all post-trial motions filed by both parties, including motions for reconsideration. Benchmark timely appealed, and Quest cross-appealed.

ISSUES AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY ADMITTING EVIDENCE CONCERNING QUEST'S LOST PROFITS.

¶ 6. Benchmark asserts that the jury verdict was excessive, and that Quest *179 failed to prove lost profits by a preponderance of the evidence. The principal evidence presented at trial on the issue of lost profits was the testimony of Quest's accountant, Tommy Kuluz, and a report that he prepared regarding his lost-profit computations. Benchmark argues that Quest did not prove lost profits to a reasonable certainty because Kuluz's testimony was based entirely on "speculation and conjecture." According to Benchmark, Kuluz failed to "produce or testify concerning any of the supporting documents" he relied on in making his estimation of lost profits, and that he failed to consider a contract entered into between Quest and Lakeview nursing home following the termination of the Benchmark/Quest contract. Benchmark contends that the profits realized from the Lakeview contract should have been considered by Kuluz in mitigation of damages. Benchmark also argues that the trial court erred in failing to order a remittitur to exclude all damages for lost profits. Quest counters that the lost profit calculations are reasonably based on the actual amounts billed by Quest during the two-month period from November 1, 1997, through December 31, 1997.

STANDARD OF REVIEW

¶ 7. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Tatum v. Barrentine, 797 So.2d 223, 230(¶ 12) (Miss.2001) (citing Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997)); Partain v. Sta-Home Health Agency of Jackson, Inc., 904 So.2d 1112, 1119(¶ 17) (Miss.Ct.App.2004). This Court will not reverse the trial court's decision regarding the admission or exclusion of evidence unless the error adversely affects a substantial right of a party. Harrison v. McMillan, 828 So.2d 756, 765(¶ 27) (Miss.2002).

DISCUSSION

¶ 8. In Mississippi, a party may recover for loss of future profits in a breach of contract action so long as such profits are proved to a reasonable certainty and not based on mere speculation or conjecture. Lovett v. E.L. Garner, Inc., 511 So.2d 1346, 1353 (Miss.1987). The rule that uncertain damages cannot be recovered applies only to the nature, not the extent, of the damages. If the nature of the damages is certain but the extent is uncertain, recovery is not prevented. Id. at 1353. In Cain v. Mid-South Pump Co., 458 So.2d 1048, 1050 (Miss.1984), the Mississippi Supreme Court addressed this rule stating:

[W]here it is reasonably certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery or prevent a jury decision awarding damages. This view has been sustained where, from the nature of the case, the extent of the injury and the amount of damage are not capable of exact and accurate proof.

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Cite This Page — Counsel Stack

Bluebook (online)
912 So. 2d 175, 2005 WL 2430630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benchmark-health-care-center-inc-v-cain-missctapp-2005.