Douglas Parker Electric, Inc. v. Mississippi Design & Development Corp.

949 So. 2d 874, 2007 Miss. App. LEXIS 69, 2007 WL 509794
CourtCourt of Appeals of Mississippi
DecidedFebruary 20, 2007
DocketNo. 2006-CA-00285-COA
StatusPublished
Cited by3 cases

This text of 949 So. 2d 874 (Douglas Parker Electric, Inc. v. Mississippi Design & Development Corp.) 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
Douglas Parker Electric, Inc. v. Mississippi Design & Development Corp., 949 So. 2d 874, 2007 Miss. App. LEXIS 69, 2007 WL 509794 (Mich. Ct. App. 2007).

Opinion

IRVING, J.,

for the Court.

¶ 1. This appeal arises out of a suit filed by Douglas Parker Electric, Inc. (Parker) against Mississippi Design and Development Corp. (MD & D). The Harrison County Circuit Court granted MD & D’s motion for summary judgment. Aggrieved, Parker appeals and asserts that the court erred in finding that the relationship between Parker and MD & D was one based on a contract rather than on an open account, in finding that no genuine issues of material fact exist, and in finding that the statute of limitations had run on Parker’s claims.

[876]*876¶ 2. Finding error, we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 3. MD & D hired Parker to do electrical work on the Monte Carlo Casino barge, which was owned by Allen Paulson. Paul-son had hired MD & D to repair the barge after it was damaged in Hurricane Georges. At some point, MD & D indicated to Parker that it was necessary to pump water out of the barge to keep the barge from sinking. Parker offered to do the work. MD & D did not tell Parker not to do the work, but did inform Parker that it would not be paid immediately. Parker and MD & D dispute when Parker was to be paid, if at all. MD & D claims that it told Parker that it could do the work, and MD & D would submit the invoices for the work to the insurance company. MD & D maintains that it told Parker it would be paid only if the insurance company decided to pay for the work. Otherwise, according to MD & D, the understanding was that Parker would not be paid. By contrast, Parker maintains that it was told that it would be paid from the proceeds of the sale of the barge.

¶ 4. Parker completed pumping the water from the barge in late September 2000. Parker maintains that after it submitted its invoices, totaling $126,850, it kept in touch with MD & D regarding the sale of the barge, and MD & D continually reassured Parker that it would pay Parker when the barge was sold. In July 2003, MD & D informed Parker that the barge had been sold, and MD & D had been paid what was owed to it in real property, instead of being paid in cash. According to Parker, MD & D told Parker at that time that it would not be paid for the work. On July 21, 2003, Parker’s attorneys mailed MD & D a demand letter for payment, to which MD & D apparently never responded. On September 23, 2003, Parker filed suit to collect against MD & D.

¶ 5. MD & D claims that it submitted the invoices to the insurance company, as it had promised to do, although MD & D also claims that it informed Parker that the amount of the invoices were very high and that it doubted the insurance company would pay such a large amount. MD & D maintains that the insurance company refused to pay the invoices and, pursuant to its agreement with Parker, MD & D refused to pay Parker for its work. MD & D also claims that the work claimed on the invoices was not actually done.

¶ 6. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Open Account

¶ 7. In its first contention of error, Parker claims that the trial court erred in ruling that its agreement with MD & D was in the nature of an oral contract rather than an open account.1

¶ 8. We find that the court did not err in characterizing the agreement between Parker and MD & D as an oral contract rather than an open account. The Mississippi Supreme Court has defined an “open account” as “an account based on continuing transactions between the parties which have not closed or been settled.” Franklin Collection Serv. v. Stewart, 863 So.2d [877]*877925, 930(¶ 14) (Miss.2003) (citing Westinghouse Credit Corp. v. Moore & McCalib, Inc., 361 So.2d 990, 992 (Miss.1978)). In McLain v. W. Side Bone & Joint Ctr., 656 So.2d 119, 123 (Miss.1995) (citations omitted), the Mississippi Supreme Court noted that an open account must contain a “final and certain agreement on price.” In Motive Parts Warehouse, Inc. v. D & H Auto Parts Co., 464 So.2d 1162, 1166 (Miss.1985) (quoting 1 Am.Jur.2d Accounts and Accounting § 4), the Mississippi Supreme Court noted that an open account “results where the parties intend that ... the account shall be kept open and subject to a shifting balance as additional related entries of debits or credits are made, until it shall suit the convenience of either party to settle and close the account....”

¶ 9. Here, there is scant evidence to indicate that there was any discussion of the price of Parker’s services, let alone a “final and certain agreement on price.” Rather, it seems that the assumption was that the work would be done at Parker’s standard rate that it had been charging MD & D for Parker’s other work. Furthermore, there was no running balance of credits and debits, nor was payment due at the convenience of either party. Instead, Parker understood that it would be paid when the barge was sold. Given the facts of this case, the court did not err in finding that the agreement between the parties was in the nature of an oral contract rather than an open account.

2. Summary Judgment

¶ 10. Parker claims that there are genuine issues of material fact sufficient to overcome summary judgment. After reviewing the record, we agree.

¶ 11. We apply a “de novo standard of review when examining a trial court’s grant or denial of summary judgment.” Flores v. Elmer, 938 So.2d 824, 826(¶ 7) (Miss.2006). We review the evidence in the light most favorable to Parker, the non-moving party. Id. “All that is needed for [Parker] to survive a motion for summary judgment is to demonstrate that a genuine issue of material fact exists.” Id. (citations omitted).

¶ 12. In entering summary judgment against Parker, the court appears to have simply adopted MD & D’s account of events as true and ignored Parker’s version of events. The affidavit submitted by Charles Parker, II, who gave the affidavit as an officer and shareholder of Parker, states:

In February, 1999, MD & D asked me if I would inspect the hull and pump the water from the hull of the Monte Carlo Casino barge accumulated after Hurricane Georges in September, 1998 to keep the Barge afloat. I informed MD & D that I was able to perform such work, but that it would require many hours of labor and many men to assist me. MD & D informed me that the work had to be completed prior to the sale of the Barge, and that I would be paid from the proceeds of the sale.
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After having completed all the work that I was hired to do, I submitted the invoices. I was told by MD & D that the sale of the Barge was then pending, and that I would be paid as soon as it was sold. At no time was there ever an agreement that insurance proceeds would pay for my services. At all times herein, the agreement was that I would be paid as soon as the Barge was sold. I attempted to contact MD & D numerous times to inquire about the status of the sale of the Barge. I was assured the Barge was being actively marketed,

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949 So. 2d 874, 2007 Miss. App. LEXIS 69, 2007 WL 509794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-parker-electric-inc-v-mississippi-design-development-corp-missctapp-2007.