Gilmer v. Morris Goodman Builders, Inc.

131 So. 3d 1203, 2013 WL 3186054, 2013 Miss. App. LEXIS 397
CourtCourt of Appeals of Mississippi
DecidedJune 25, 2013
DocketNo. 2010-CA-01779-COA
StatusPublished
Cited by2 cases

This text of 131 So. 3d 1203 (Gilmer v. Morris Goodman Builders, Inc.) 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
Gilmer v. Morris Goodman Builders, Inc., 131 So. 3d 1203, 2013 WL 3186054, 2013 Miss. App. LEXIS 397 (Mich. Ct. App. 2013).

Opinion

IRVING, P.J.,

for the Court:

¶ 1. Morris Goodman Builders Inc. (Morris Goodman) filed suit against Barry W. Gilmer seeking to recover $83,951.78 in unpaid labor and expenses associated with the construction of Gilmer’s home. Gilmer filed a response to Morris Goodman’s complaint and a counterclaim against Morris Goodman, alleging breach of contract, breach of workmanship, breach of an express warranty, fraudulent inducement, and fraudulent misrepresentation. Following a jury trial, the Madison County Circuit Court entered judgment in favor of Morris Goodman in the amount of $83,951.78 and awarded Morris Goodman attorney’s fees in the amount of $28,542.46.

¶ 2. Feeling aggrieved, Gilmer appeals and asserts eight assignments of error, which we quote:

I. Whether the trial court abused its discretion by refusing to allow Mr. Gilmer to present jury instructions on his theory of fraudulent misrepresentation to the jury.
II. Whether the trial court abused its discretion by allowing Mr. Jim Goodman to offer expert testimony on matters outside his scope of expertise.
III. Whether the jury verdict in favor of Morris Goodman Builders was against the overwhelming weight of the evidence.
IV. Whether the trial court abused its discretion in awarding attorney’s fees to counsel for Appellee by failing to require credible evidence of the reasonableness of fees charged and the necessity of services rendered.
V. Whether the trial court erred in allowing fact witness Wade Buie to testify as to hearsay engineering information concerning the I-joists installed in Appellant’s house.
VI. Whether the trial court erred in failing to consider or properly apply paragraph VIII of the construction contract holding Appellant harmless from any claims arising out of construction, including attorney’s fees.
VII. Whether the trial court erred by allowing counsel for Appellee to engage in a systematic trial tactic of personal attacks upon Appellant and delivery of an inflammatory closing argument alleging abuse of the judicial system without a proper basis in fact or law.
VIII. Whether the trial court erred in allowing counsel for Appellee to commit a fraud upon the jury by presentation of false demonstrations during closing argument.
¶ 3. Finding no error, we affirm.

FACTS

¶ 4. In 1993, Gilmer began contemplating building a house on land that he owned in Madison County, Mississippi. [1206]*1206Gilmer had observed houses built by Morris Goodman and decided to hire the company to build his house. In 2000, Gilmer spoke with Jim Goodman (Jim), the company's owner, about hiring the company to build the house. Gilmer told Jim that he wanted to model his house after a house that belonged to one of Gilmer’s acquaintances in Philadelphia, Mississippi. The two traveled to Philadelphia, and Jim took numerous measurements and made notes regarding the layout of the house. Jim used photos that he took at the house and a partial set of the home’s blueprints to draft a set of blueprints for Gilmer’s house. Throughout the building process, Gilmer called Jim’s attention to several defects concerning the framing of the house, the laying of bricks, and the placement and protection of building materials. Although Gilmer paid the initial bills from Morris Goodman, he stopped paying in June 2001. Morris Goodman ceased all work on Gilmer’s house and left the job.

¶ 5. At trial, Jim testified that he went into the construction business with his father after he graduated from high school. When Jim’s father retired in 1995, Jim took over the business. Over the years, Jim has worked in every aspect of home building with the exception of the mechanical and electrical aspects. Jim stated that he had extensive experience in reading plans for the construction of a house but admitted that he had no formal training as an architect. Prior to beginning construction on Gilmer’s house, Jim had built more than fifty homes and supervised the construction on each. Without objection from Gilmer, the court accepted Jim as an expert in the field of residential construction.

¶ 6. Jim stated that he took several pictures and extensive measurements while visiting the house in Philadelphia with Gil-mer. Gilmer asked him if he could draw plans for the house, and he told Gilmer that he could. After drawing the plans, Jim and Gilmer met to discuss costs and to sign a contract allowing Morris Goodman to begin building Gilmer’s house under Jim’s supervision.

¶ 7. According to Jim, the prices for the materials were reasonable, and the work performed during construction met all applicable industry standards. Gilmer chose the windows that Morris Goodman installed in the house. Additionally, Gilmer chose the style of brick for the house. Jim testified that Morris Goodman’s method of framing would accommodate any style of brick. Jim noted that the space between the bricks and the wall of the house met the standard set by the Southern Building Code. Jim could recall only one time that Gilmer expressed some dissatisfaction with his workmanship. However, Jim fixed the problem that Gilmer found at no extra cost to Gilmer and reimbursed him for materials and labor. Jim stated that all of the work performed on Gilmer’s house and all of the materials used in construction were at or above industry standards.

¶ 8. Morris Goodman hired Dale Harrell as a subcontractor to frame Gilmer’s house. Harrell testified that he had worked in construction for approximately thirty years. Harrell described the job on Gilmer’s house as “typical.” He stated that he framed Gilmer’s house according to the industry standards that were applicable at that time. He insisted that he inspected all of the materials that he and his crew used in framing Gilmer’s house so that he could avoid having to “cull” any of the wood before the crew installed sheet-rock. Harrell also stated that he framed the house for the type of brick that Gilmer had chosen.

¶ 9. Harrell also testified regarding the I-joists that he installed in the garage house. He recalled that the blueprints called for sixteen-inch I-joists. However, [1207]*1207the manufacturer shipped I-joists that measured only twelve inches. Jim alerted the manufacturer of the mistake, and the manufacturer shipped an additional set of twelve-inch I-joists. Harrell installed the twelve-inch I-joists as directed. He noted that it would have taken an additional two weeks to receive the correct-sized joists.

¶ 10. Wayne Ellis testified that he had been a brick mason for forty-six and one-half years, and Morris Goodman hired him to perform the brick work on Gilmer’s house. Ellis detailed the preparations and labor involved in laying brick on a two-story home. He stated that the type of brick that will be used on the house only affects the house’s framing by changing the amount of space that should be between the brick and the house. Ellis also constructed the chimneys on Gilmer’s house. He stated that the chimneys were built according to industry standards. On cross-examination, Ellis admitted that they had to tear down at least one wall because the bricks were not meeting the window framing like Gilmer had requested.

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Bluebook (online)
131 So. 3d 1203, 2013 WL 3186054, 2013 Miss. App. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmer-v-morris-goodman-builders-inc-missctapp-2013.