Nash Plumbing, Inc. v. Shasco Wholesale Supply, Inc.

875 So. 2d 1077, 2004 Miss. LEXIS 715, 2004 WL 1405291
CourtMississippi Supreme Court
DecidedJune 24, 2004
Docket2002-CA-00678-SCT
StatusPublished
Cited by7 cases

This text of 875 So. 2d 1077 (Nash Plumbing, Inc. v. Shasco Wholesale Supply, Inc.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nash Plumbing, Inc. v. Shasco Wholesale Supply, Inc., 875 So. 2d 1077, 2004 Miss. LEXIS 715, 2004 WL 1405291 (Mich. 2004).

Opinion

875 So.2d 1077 (2004)

NASH PLUMBING, INC. and Milton Nash
v.
SHASCO WHOLESALE SUPPLY, INC.

No. 2002-CA-00678-SCT.

Supreme Court of Mississippi.

June 24, 2004.

*1078 Roger M. Tubbs, Tupelo, attorney for appellants.

Rex F. Sanderson, attorney for appellee.

COBB, Presiding Justice, for the Court.

¶ 1. In November, 1999, Shasco Wholesale Supply, Inc. (Shasco) brought suit in the Chickasaw County Circuit Court, First District, against defendants Milton Nash (Nash), Tommy Turner (Turner), Nash Plumbing, Inc. (Nash Plumbing), and A.C.T. Services, Inc. (A.C.T.). to recover a debt of $5,630 owed for plumbing supplies sold by Shasco, invoiced to A.C.T., received by Nash or Nash Plumbing,[1] but never paid for. Milton Nash was president *1079 of Nash Plumbing, and Tommy Turner was president of A.C.T.

¶ 2. A bench trial was held on March 20, 2001. A.C.T. was not represented at trial, although Tommy Turner testified. Milton Nash and Nash Plumbing were represented, but neither put on a defense, nor did Milton Nash appear during trial to testify. A judgment in the amount of $10,808.45, which included the $7,010.15 reflected on Shasco's accounting and $3,798.30 in attorney's fees, out-of-pocket expenses and interest, was entered by the circuit court on May 7, 2001, against Milton Nash, Nash Plumbing, Inc., Roto-Rooter of North Mississippi, Inc., and Nash Services Group, Inc[2]. No judgment was entered by the circuit court against A.C.T. or its president, Tommy Turner.

¶ 3. Although the circuit court judgment did not include an explanation of the legal theories upon which it based its judgment, the judge stated that he was of the opinion that Nash had "used the corporate shield to manipulate." However, due to the contradictions between Turner's testimony and the documentary evidence he supplied concerning the relationships between the parties, particularly the corporate entities, we are unable to affirm the trial court on this basis. Therefore, we hold that Milton Nash, individually, and Nash Services Group (f/k/a Roto-Rooter of North Mississippi) cannot be held liable, but that based on equitable estoppel principles, A.C.T. Services is held jointly and severally liable along with Nash Plumbing, for the judgment in favor of Shasco. We affirm the trial court in all other respects.

FACTS

¶ 4. These facts are taken from the record and from the uncontested trial testimony of Tommy Turner, president of A.C.T. Services, Inc. and Kenny Scott, president of Shasco, Inc. Milton Nash was the president of at least two corporations, Nash Plumbing, Inc., and Roto-Rooter of North Mississippi, Inc. According to Turner, these two companies did similar work, but Nash Plumbing performed the larger, American Institute of Architects (AIA), construction jobs, and Roto-Rooter performed the smaller residential air conditioning and non-contract jobs. Together, these companies were sometimes referred to as the Nash Group or simply "Nash." Turner testified that around September, 1997, Milton Nash approached him with an offer to purchase A.C.T. Turner testified that this as a good fit because Nash had no sheet metal or air conditioning capability, so subcontracted out this portion of its construction jobs, and A.C.T. had a nice sheet metal shop and performed this type of work. Turner further testified that Nash Plumbing was also in need of a mechanical license, which Turner could supply; and Nash Plumbing was in a better position to provide the performance bonds for the jobs. In anticipation of a buy-out agreement, A.C.T. Services, Inc. and Nash Plumbing, Inc. executed a "Management Agreement"[3] in which Milton Nash was to *1080 manage A.C.T. until Turner and Nash could "hammer out" a deal for Nash to acquire A.C.T. Turner also testified that he (Turner) had been an absentee owner and was not familiar with the daily operations of A.C.T. The record corroborates that Turner knew very little about the corporate transactions with which he was involved.

¶ 5. According to Turner's testimony, A.C.T. ceased operation as of December 31, 1997[4], and "Nash" took over all of A.C.T.'s assets and liabilities as of that date. Turner stated that it took until March 12, 1998, to work out the agreement for "Nash" to acquire A.C.T.[5] and during this time, A.C.T. was in a transition period, with employees working one day for A.C.T. and the next day for Nash Plumbing. The same day that the acquisition agreement was executed, a Consulting Agreement was also executed between Tommy Turner and the two Nash companies, Nash Plumbing and Roto-rooter of North Mississippi, in which Turner was to be a paid consultant for the Nash companies.

¶ 6. Turner further testified that A.C.T. had bid and won several commercial air conditioning jobs, which Nash Plumbing began managing; that Nash hired supervisors for each job; and with the exception of one job, Nash Plumbing entirely controlled the jobs. Turner also testified that Milton Nash was managing and controlling A.C.T. as well as Nash Plumbing and Roto-Rooter (Nash Services Group) and using the assets and employees of all companies to complete the construction jobs in the names of both Nash Plumbing and A.C.T.

¶ 7. When the trial judge questioned Turner about who received payment for the jobs, Turner stated that Nash received the payments and was in control of all money paid toward the A.C.T. contracts. When asked how the jobs were handled, Turner testified about one job, the ICC Building in Fulton, which was an A.C.T. contract, stating "[i]t was 100 percent totally handled by Nash. We never got any checks, never did any work. I'm sure a lot of these materials went on that job." Nash did not testify in his own defense, nor in defense of Nash Plumbing, and no evidence was presented to dispute this claim.

¶ 8. Shasco president Kenny Scott testified that Shasco opened the A.C.T. account in the latter part of 1997. He stated that invoices sent to A.C.T. in December, 1997 and January, 1998, were paid by A.C.T. Invoices dated February through April 1998 were left unpaid. Scott testified that his employee went to A.C.T. to find out why the invoices were not being paid, was told that Nash Plumbing was buying out A.C.T., and was directed to Nash Plumbing for collection of the debt[6]. Scott then personally visited Milton Nash in early July, 1998, at the Nash Plumbing office after calling several times with no response. The trial record supports Scott's *1081 contentions that Milton Nash admitted to him during this meeting that the debt belonged to Nash Plumbing and that Nash not only promised to pay for any material or supplies ordered by A.C.T. but also gave Scott a check drawn on the Nash Plumbing account in the amount of $3,653.19 for seven invoices with dates in February and March of 1998. The invoices were for sheet metal material and supplies ordered on the A.C.T. account. According to Scott, Nash then told Scott he would "have some more money in a couple of weeks."

¶ 9. The trial testimony supports the circuit court's finding that Shasco supplied sheet metal and other materials to A.C.T.; the materials were being used on jobs managed and controlled by Nash Plumbing; Nash Plumbing was being paid directly for the jobs; and no money was going back into A.C.T., or to Shasco to pay for the supplies.

ANALYSIS

¶ 10. A circuit court judge sitting without a jury is accorded deference with regard to his findings on appeal as long as his findings are supported by substantial, credible, and reasonable evidence. Puckett v. Stuckey,

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Bluebook (online)
875 So. 2d 1077, 2004 Miss. LEXIS 715, 2004 WL 1405291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nash-plumbing-inc-v-shasco-wholesale-supply-inc-miss-2004.