Erickson v. Smith

909 So. 2d 1173, 2005 WL 147698
CourtCourt of Appeals of Mississippi
DecidedJanuary 25, 2005
Docket2003-CA-00774-COA
StatusPublished
Cited by3 cases

This text of 909 So. 2d 1173 (Erickson v. Smith) 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
Erickson v. Smith, 909 So. 2d 1173, 2005 WL 147698 (Mich. Ct. App. 2005).

Opinion

909 So.2d 1173 (2005)

Christopher W. ERICKSON, Appellant,
v.
Victor P. SMITH, David H. Beard, Windward Bluff Homeowners Association, Inc. and Lakeshore Pointe, LLC., Appellees.

No. 2003-CA-00774-COA.

Court of Appeals of Mississippi.

January 25, 2005.

*1175 K.F. Boackle, Madison, attorney for appellant.

Anselm J. McLaurin, Brandon, attorney for appellees.

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

BARNES, J., for the Court.

¶ 1. The Chancery Court of Rankin County found David H. Beard, Victor P. Smith, and Lakeshore Pointe, LLC. jointly and severally liable to Appellant Christopher W. Erickson in the amount of $1.00. *1176 Erickson appeals arguing that the evidence was sufficient to support a $11,947 loss of value of Erickson's town home caused by the lack of certain amenities, that he was entitled to a refund of thirty-six months of homeowners assessments paid, and that he was entitled to attorney fees and costs associated with the litigation. Finding no error in the chancellor's determinations that Erickson failed to prove that the loss in value of the town home was caused by the lack of amenities or his entitlement to any other relief, we affirm.

STATEMENT OF FACTS AND DISPOSITION BELOW

¶ 2. Christopher Erickson purchased a town home located in Phase I of the Windward Bluff development on April 1, 1999 from developers David H. Beard and Victor P. Smith.[1] He paid $162,847. Erickson claimed that prior to his purchase, representations were made to him that Phase II of the development, located on the Ross Barnett Reservoir, would have a pier, boardwalk, tower, and a clubhouse with a pool. These representations were contained in a brochure for Windward Bluff which Erickson claimed was provided to him in mid-1998 by the marketing agent for the development.[2]

¶ 3. The developers' original concept for Windward Bluff was to build a new product for Jackson, attached town homes with a dramatic look; they anticipated that it would take three to four years to complete both phases of the development. Although their marketing data had not indicated a potential problem, once into the project the developers found that the attached town house concept was not well accepted in the market; having a common wall with adjoining units made the development more like rental than owner/occupied properties. The acceptance of the town house concept was not the only thing the developers had misjudged; a number of the amenities planned for Phase II of the development (and depicted in the original brochure) had to be abandoned.

¶ 4. David Beard testified that it became apparent in 1997 or 1998 that the pier could not be constructed. Ricky Calloway, a representative of the reservoir board, informed the developers that the Corps of Engineers would not approve the pier because it would interfere with the operation of the emergency spillway. Also, the developers' insurance company informed them that policing a pier would be virtually impossible; at night unauthorized persons could pull up and use the pier to gain entry to what was supposed to be a secure development. Further, their engineers informed the developers that the waterfront boardwalk could not be constructed because in order to anchor the boardwalk, they would have to disturb the rip-rap and make the shoreline unstable. Beard testified that even without the boardwalk, the developers had spent approximately $60,000 in additional rip-rap, trying to stabilize the shore. As to the proposed tower, the reservoir board and the developer's insurance company objected because it would be an attractive nuisance; Beard stated that the tower was "just a bad idea" because "young men, either sober or intoxicated, *1177 would like to see if they could climb to the top."[3]

¶ 5. Erickson moved from the Jackson area in November of 2000 to work in Utah. He rented his town home until he was able to sell it. Erickson's original listing price was $177,900; the unit was on the market for nearly two years and was eventually sold to James Jeff in May 2002, for $150,900, or $11,947 less than Erickson's original purchase price. At the time Erickson sold his unit, the boardwalk, pier and tower had not been constructed, and the pool and clubhouse, though substantially complete, were not yet open.

¶ 6. Erickson filed suit, first and foremost, seeking damages from the loss in value of his town home. He attributed the loss in value to the lack of amenities allegedly promised before his purchase. After a two-day trial on the merits, the Chancery Court of Rankin County, Mississippi, found that while Beard, Smith and Lakeshore Pointe LLC. were not liable for fraud or breach of contract, they were negligent in not determining that they could obtain the necessary authority or permits to construct the amenities before printing brochures which included them. The court assessed only nominal damages, however, because Erickson "failed to prove affirmatively that the lack of amenities caused the decline in his property value." To the contrary, the court found that "more likely is that the market did not embrace the [town house] concept, and with regard to Erickson's unit itself, its poor attractiveness to buyers due to its condition." The count determined that Erickson "could only show a decline in property values but could not quantify the degree to which the amenity issue contributed."

¶ 7. Second, Erickson asked the court to order a refund of the $65 per month assessment he paid to the Windward Bluff Homeowners Association during his thirty-six-month ownership based on his interpretation of the following clauses from article IV, sections 3 and 4, respectively, of the Declaration of Covenants, Conditions and Restrictions for Lakeshore Pointe LLC d/b/a Windward Bluff Townhouses [hereinafter, the "Declaration of Covenants"]:

Until the date of the first meeting of the Association, the Declarant, on behalf of the Association, shall have the responsibility and duty of improving and maintaining the Common Areas, including, but not limited to, paying the cost of labor, equipment (including the expense of leasing any equipment) and materials required for, and management and supervision of the Common Areas and payment of rent on the Common Areas to the [Pearl River Valley Water Supply District]....
It shall be the duty of the Board to prepare a budget covering the estimated costs of operating the Association during the coming year, which shall include a capital contribution or reserve in accordance with a capital budget separately prepared.... The budget and the assessment shall become effective unless disapproved at a meeting by a majority of all Owners. Notwithstanding the foregoing, however, in the event the membership disapproves the proposed budget or the Board fails for any reason so to determine the budget for the succeeding *1178 year, then and until such time as a budget shall have been determined, as provided therein, the budget in effect for the then current year shall continue for the succeeding year.

Erickson contends that since the homeowners' association never had its first meeting, prepared budgets or rendered accountings, he is entitled to a refund of all of the fees he paid to the association.

¶ 8. Erickson fails to acknowledge the provision which immediately follows the portion of section 3 upon which he relies:

In this regard, and until such time, all assessments, both annual and special, collected by the Association

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Cite This Page — Counsel Stack

Bluebook (online)
909 So. 2d 1173, 2005 WL 147698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erickson-v-smith-missctapp-2005.