Bert Allen Toyota, Inc. v. Grasz

947 So. 2d 358, 2007 Miss. App. LEXIS 22, 2007 WL 152164
CourtCourt of Appeals of Mississippi
DecidedJanuary 23, 2007
Docket2005-CA-00748-COA
StatusPublished
Cited by8 cases

This text of 947 So. 2d 358 (Bert Allen Toyota, Inc. v. Grasz) 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
Bert Allen Toyota, Inc. v. Grasz, 947 So. 2d 358, 2007 Miss. App. LEXIS 22, 2007 WL 152164 (Mich. Ct. App. 2007).

Opinion

947 So.2d 358 (2007)

BERT ALLEN TOYOTA, INC., Appellant
v.
Horst F.G. GRASZ, Appellee.

No. 2005-CA-00748-COA.

Court of Appeals of Mississippi.

January 23, 2007.

*359 Tim C. Holleman, attorney for appellant.

Dale Robinson, attorney for appellee.

Before KING, C.J., CHANDLER and ROBERTS, JJ.

CHANDLER, J., for the Court.

¶ 1. This appeal is the second time this breach of contract case has been before this Court. In Bert Allen Toyota v. Grasz I, 909 So.2d 763, 771(¶ 26) (Miss.Ct.App. 2005), we affirmed in part and reversed and remanded in part the Chancery Court of Harrison County's order awarding specific performance of a contract for Grasz's purchase of an unused 2003 Toyota Tacoma truck from Bert Allen Toyota for $15,017.50. In that appeal, Bert Allen Toyota had argued that specific performance of the contract was impossible because, by the time of the 2004 trial, Bert Allen Toyota lacked access to an unused 2003 model truck and was thus unable to specifically perform the contract. We remanded for a determination of whether Bert Allen Toyota in fact could not provide an unused 2003 model truck, with instructions for the chancery court to fashion another equitable remedy if the court found Bert Allen Toyota could not provide an unused 2003 model truck.

¶ 2. This appeal is from an order of the trial court that was entered during the pendency of the first appeal. On August 18, 2004, with the first appeal pending, Grasz filed a "Motion for Bond or in the Alternative Motion to Enforce Judgment." On December 17, 2004, the trial court entered a "Judgment Regarding Bond and Enforcement." In that judgment, the court found that, because Bert Allen had not moved for a stay of the judgment ordering specific performance, the judgment was enforceable. The court stated that Bert Allen could specifically perform by providing Grasz with a truck from "model year 2003 or later." Bert Allen moved to set aside the Judgment Regarding Bond and Enforcement, arguing that the judgment impermissibly reconsidered the earlier final judgment by expanding how Bert Allen could specifically perform. Bert Allen also moved for a stay. On March 30, 2005, the court denied the motion to set aside the Judgment Regarding Bond and Enforcement and granted Bert Allen's motion for a stay.

¶ 3. Bert Allen appeals, renewing its argument that the Judgment Regarding Bond and Enforcement impermissibly reconsidered the earlier final judgment. We find that, because an appeal had been perfected, the trial court lacked jurisdiction to alter the final judgment. Therefore, we reverse and render the Judgment Regarding Bond and Enforcement to the extent that it modified or clarified the relief awarded to Grasz. We observe that our *360 reversal little avails Bert Allen Toyota because this Court has already affirmed the specific performance award and remanded for the chancellor to fashion another equitable remedy if it finds that Bert Allen Toyota is unable to provide an unused 2003 model truck.

FACTS

¶ 4. The following chronology embraces the events that have culminated in this appeal.

May 29, 2003 — Grasz filed his complaint for specific performance of the contract.

March 2004 — A trial was held.

March 22, 2004 — The chancery court entered a final judgment ordering Bert Allen Toyota to provide an unused 2003 Toyota Tacoma truck for $15,017.50.

April 8, 2004 — Bert Allen Toyota filed a motion to correct findings of fact and conclusions of law and/or for a new trial and/or for a JNOV.

July 30, 2004 — The court entered a judgment denying Bert Allen Toyota's posttrial motions.

August 11, 2004 — Bert Allen Toyota filed a notice of appeal.

August 18, 2004 — Grasz filed his "Motion for Bond or in the Alternative Motion to Enforce Judgment." In the motion, Grasz requested that the court enforce the judgment for specific performance, cite Bert Allen Toyota for contempt, or, alternatively, require Bert Allen Toyota to post a bond sufficient to protect Grasz's interest.

September 20, 2004 — Bert Allen Toyota filed an objection to the motion for bond or in the alternative to enforce judgment. Bert Allen Toyota argued that the contempt motion was without merit because Grasz had failed to issue or serve summons under M.R.C.P. 4 as required by M.R.C.P. 81(d)(2) for any contempt matters. Bert Allen Toyota also contested the chancery court's jurisdiction over the motion on the ground that an appeal from the final judgment was pending.

December 17, 2004 — The chancery court entered the "Judgment Regarding Bond and Enforcement" that is the subject of this appeal. The court made several findings in this judgment which are enumerated below.

(1) The court found it had jurisdiction over the motion because any request regarding a stay of judgment and an appeal bond must first be addressed by the trial court. M.R.A.P. 8(b); M.R.C.P. 62.

(2) The court observed that the supersedeas bond rule of M.R.A.P. 8(a) applies only to money judgments and does not apply to judgments for property other than money. Because the judgment was for specific performance, no supersedeas bond was required. The court observed that Bert Allen Toyota had not moved for a stay under M.R.C.P. 62. The court stated that, had Bert Allen moved for a stay, the court in its discretion could have required a supersedeas bond as a condition of granting the stay pending appeal.

(3) As Bert Allen had not sought a stay, the court found no impediment to enforcement of the judgment for specific performance. Thus, the court held that "Bert Allen Toyota shall deliver to Grasz a 4X2 truck with the exact features and amenities ordered in April 2003, for the sale price of $15,017.50. The truck shall be model 2003 or later." The court further stated:

In the response to the pending motion for bond, Bert Allen alleges that the specific performance ordered by the Court, delivery of the special order truck, is impossible to perform, but again, does not seek a stay. The Court notes that Bert Allen Toyota has enjoyed *361 a good reputation in this community for many years. For this reason, the Court has given Bert Allen Toyota the benefit of this reputation, that it would perform its now court ordered obligation and deliver Grasz the truck for which he bargained. Bert Allen Toyota argues, however, that it is impossible for it to comply with the order. Counsel for Bert Allen Toyota argues that Bert Allen Toyota is not a manufacturer of Toyota vehicles and, therefore, it cannot produce a Toyota for Graz [sic]. However, when the parties contracted for the vehicle, the sales manager told Graz that, "We will have to build one for you" and therefore there will be a delay in delivery. Bert Allen Toyota held itself out as an agent of the manufacturer of Toyota vehicles, and, in fact, has been selling them for many years.
It would seem that counsel for Bert Allen Toyota assumes that the only such Toyota truck required to comply with the Order is one manufactured in the year 2003. As in any other case for specific performance, the construction, manufacture or service will be delayed to a later time frame. Accordingly, if Bert Allen Toyota no longer has a 2003 Toyota as ordered by Graz, then Bert Allen should deliver to Graz a similar Toyota truck manufactured in a subsequent year. Bert Allen Toyota should not be permitted to profit from its wrong-doing in selling to another the truck which it ordered and received for Graz pursuant to their contract.

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Bluebook (online)
947 So. 2d 358, 2007 Miss. App. LEXIS 22, 2007 WL 152164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bert-allen-toyota-inc-v-grasz-missctapp-2007.