Industrial Contractors v. Tim Mote Plumbing

962 So. 2d 632, 2007 WL 152156
CourtCourt of Appeals of Mississippi
DecidedJanuary 23, 2007
Docket2005-CA-01414-COA
StatusPublished
Cited by12 cases

This text of 962 So. 2d 632 (Industrial Contractors v. Tim Mote Plumbing) 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
Industrial Contractors v. Tim Mote Plumbing, 962 So. 2d 632, 2007 WL 152156 (Mich. Ct. App. 2007).

Opinion

962 So.2d 632 (2007)

INDUSTRIAL AND MECHANICAL CONTRACTORS OF MEMPHIS, INC., Appellant/Cross-Appellee
v.
TIM MOTE PLUMBING, LLC, Appellee/Cross-Appellant.

No. 2005-CA-01414-COA.

Court of Appeals of Mississippi.

January 23, 2007.
Rehearing Denied May 8, 2007.

*634 Christian T. Goeldner, Southaven, attorney for appellant.

Paul R. Scott, Batesville, attorney for appellee.

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

BARNES, J., for the Court.

¶ 1. This contractual dispute arose from work performed by a subcontractor, Tim Mote Plumbing, LLC ("Mote") pursuant to a contract between the parties. The Chancery Court of DeSoto County held in favor of the contractor, Industrial and Mechanical Contractors of Memphis, Inc. ("IMC"), awarding damages sustained by IMC in remedying Mote's defective work. Satisfied in all other respects with the chancellor's judgment, IMC appeals the chancery court's denial of legal fees, fees to which IMC asserts it is entitled pursuant to the contract. Mote cross-appeals the amount of damages awarded to IMC, contending that the damage amounts awarded to IMC were inconsistent with the chancellor's findings of fact with respect to Mote's breach. Finding merit only in Mote's cross-appeal, we affirm the chancellor's denial of attorney's fees but reverse and remand for a determination of damages attributable solely to Mote's failure to "tie in" a water pipe beneath the parking lot.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In July of 2002, Barney Brothers of Mississippi, Inc. contracted with IMC, a general contractor, for the construction of a commercial building. Pursuant to this engagement, IMC entered into a subcontract with Mote, as plumbing subcontractor, for the installation of the plumbing system. According to the subcontract between IMC and Mote, Mote was to be paid by three separate draws. IMC paid the first two draws without incident. IMC refused, however, to remit payment on the third and final draw, citing defects in the work performed by Mote.

¶ 3. The instant action began when Barney Brothers, notified by Mote of IMC's refusal to pay the final draw, filed an interpleader complaint in chancery court, naming both companies as defendants to the action.[1] IMC timely filed its answer to the interpleader action. Additionally, IMC filed a cross-complaint against Mote, alleging that Mote breached the contract between the parties and asserting that Mote was liable for: (1) the costs of remedying the defective work, (2) legal fees incurred as a result of Mote's breach, and, (3) a contractual penalty of twenty percent of the costs associated with remedying the defective work.

¶ 4. At trial on the merits of the cross-claim, IMC presented evidence that Mote breached the contract in several respects. First, IMC contended that Mote failed to *635 properly "tie-in" a water pipe, resulting in a leak beneath part of the parking lot. To remedy this defect, a hole was dug in the pavement, and the water pipe was excavated and properly "tied-in" to prevent further leakage. When the pipe was repaired, a pavement patch was applied to the hole in the pavement. According to testimony, Barney Brothers was not satisfied with the difference in appearance between the pavement patch and the remainder of the parking lot. In order to make the parking lot look uniform, IMC hired Driveways, Inc. to resurface and restripe the entire parking lot. Second, evidence was also presented at trial alleging that Mote breached the contract by failing to properly compact the trenches in which Mote laid sewage and water pipes. Because of this alleged breach, IMC incurred additional expenses digging up and properly compacting these pipe trenches. Finally, IMC asserted that Mote breached the contract when Mote employees punched holes in the sheetrock walls inside the building in an effort to locate water cutoff valves, requiring IMC to repair the holes at IMC's expense.

¶ 5. The chancellor held in his opinion that IMC "failed to meet its burden of proof with reference to every aspect of the litigation except for the damage and repairs to the parking lot." Specifically, the chancellor held that testimony elicited at trial indicated that there "was a lot of rain which could have directly affected compaction. There was also not sufficient proof to support that part of the liability (compaction of parking lot) on the part of Mote and the damages." As to the damage to the sheetrock, the court found "that the damages to the sheetrock was caused by IMC's crews sheetrocking before the plumbers were finishing `top in' therefore requiring Mote to punch holes in the sheetrock." The only proof which rose to the level of preponderance of the evidence, according to the court, was the evidence of Mote's failure "to `tie in' a pipe underneath the parking lot, thereby causing a leak." The chancellor awarded IMC damages in the amount of $3,816. Although Mote contests the evidentiary basis for this amount, the chancellor's intention was presumably to compensate IMC only for damages sustained as a result of Mote's failure to "tie in" the water pipe beneath the parking lot.

¶ 6. At the conclusion of the bench trial, IMC filed a post-trial "Motion for Award of Attorney's Fees."[2] IMC claimed that it was entitled to reimbursement for all of its attorney's fees pursuant to a clause in the subcontract which obligated Mote to pay IMC's attorney's fees "[i]f it becomes necessary for [IMC] to employ an attorney to enforce its rights against [Mote]." The chancellor denied this motion without explanation.

¶ 7. IMC appeals only the denial of attorney's fees; Mote maintains that the chancellor did not abuse his discretion in denying IMC's requested legal fees, contending that IMC is entitled to fees only with respect to the one claim upon which it prevailed, and asserting that IMC failed to provide any evidence that would have allowed the chancellor to allocate fees. In its cross-appeal, Mote does not challenge the chancellor's findings of fact with respect to the company's failure to properly "tie in" the pipe underneath the parking lot. Instead, Mote argues that the chancellor erroneously included in his damage computation amounts which, according to trial evidence, included costs to remedy Mote's alleged failure to compact. Mote *636 contends that this constitutes manifest error in light of the chancellor's holding that the evidence was insufficient to establish Mote's liability for failure to compact. Mote challenges the award of a twenty percent contractual penalty only insofar as it was applied to an erroneous damage amount.

STANDARD OF REVIEW

¶ 8. It is well settled that this Court will not reverse a chancellor's findings of fact "unless they are manifestly wrong, not supported by substantial credible evidence, or an erroneous legal standard was applied." Columbia Land Dev., LLC v. Sec'y of State, 868 So.2d 1006, 1011(¶ 14) (Miss. 2004) (citing Vaughn v. Vaughn, 798 So.2d 431, 433 (Miss.2001); Tucker v. Prisock, 791 So.2d 190, 192 (Miss.2001)). For questions of law, however, we apply a de novo standard. Id. "Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact finder." Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 110(¶ 5) (Miss.2005) (quoting Parkerson v. Smith, 817 So.2d 529, 532 (Miss.2002)).

¶ 9. IMC's entitlement to attorney's fees involves the construction of a contract provision.

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Cite This Page — Counsel Stack

Bluebook (online)
962 So. 2d 632, 2007 WL 152156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/industrial-contractors-v-tim-mote-plumbing-missctapp-2007.