Ralph McKnight & Son Const., Inc. v. C & I Entertainment, LLC

100 So. 3d 1022
CourtCourt of Appeals of Mississippi
DecidedNovember 18, 2012
DocketNo. 2011-CA-00594-COA
StatusPublished
Cited by8 cases

This text of 100 So. 3d 1022 (Ralph McKnight & Son Const., Inc. v. C & I Entertainment, LLC) 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
Ralph McKnight & Son Const., Inc. v. C & I Entertainment, LLC, 100 So. 3d 1022 (Mich. Ct. App. 2012).

Opinion

CARLTON, J.,

for the Court:

¶ 1. Ralph McKnight & Son Construction Inc. (McKnight) filed a petition to enforce a construction lien on property owned by C & I Entertainment LLC (C & I). C & I subsequently filed a counterclaim against McKnight for breach of contract, breach of the duty of good faith and fair dealing, and negligent construction/breach of workmanship. C & I also sought punitive damages. After a trial in the Attala County Circuit Court, the jury returned a verdict in favor of C & I and awarded $300,845.67 in damages. McKnight now appeals. Finding no error, we affirm.

FACTS

¶2. On August 7, 2001, McKnight entered into a contract with C & I, in which McKnight agreed to construct a movie theater and make certain restorations to an existing skating rink. The total contract price was $483,131.06, plus the bond cost of $6,825.06 and one change order of $5,129, for a total of $495,085.12.

¶ 3. Due to weather problems and C & I’s financing issues, work on the project commenced in May 2002. McKnight began the project by completing renovations on the skating rink, and then proceeded to construct the new movie-theater building. In the fall of 2002, C & I noticed leaks in the roof of the old skating-rink budding and in the new movie-theater building. C & I admitted that upon identifying the leaks to McKnight, McKnight responded [1025]*1025and attempted to repair the leaks. However, C & I claimed that the leaks persisted during construction and even through the date of trial, which commenced nine years later. McKnight responded by arguing that C & I admitted failing to take any action to repair or fix the leaks during this time.

¶4. McKnight substantially completed the movie-theater building in November 2002. The City of Kosciusko inspected the building and approved C & I’s occupation within a few days, subject to McKnight correcting a few “punch list” items. C & I’s lender, Merchants and Farmers Bank, hired building inspector Ken Collins to perform monthly inspections of the work and also to approve applications for payment based on McKnight’s progress in completing the contract tasks. C & I and McKnight both stated at trial that all of McKnight’s applications for payment were approved, except the retainage/last-draw payment of approximately $35,701.51, which C & I withheld pending McKnight’s completion of the punch-list items.

¶ 5. On January 24, 2003, the City of Kosciusko sent a letter to McKnight indicating that two items, the fire caulking for the projection room and the hand rail on the stairs to the projection room, needed to be completed in order to receive a certificate of occupancy. After receipt of the letter, representatives of McKnight and C & I performed a final inspection of the building to address and repair the punch-list items. On January 27, 2003, McKnight sent a letter to C & I outlining these issues as the only outstanding work left to perform. McKnight testified that it had corrected all of the items on the punch list between January 24, 2003, and February 21, 2003.

¶ 6. On February 21, 2003, the City of Kosciusko issued a certificate of occupancy for the theater, and C & I opened the theater on February 23, 2003. On April 24, 2003, McKnight made a warranty call on the project during a rain storm to check the buildings for leaks. Bryan McKnight, the project manager who performed the warranty call, stated that he found no leaks on the premises after an hour of rain.

¶ 7. C & I contends that after notifying McKnight of the leaks in the roof of the old skating-rink building and in the new movie-theater building in fall of 2002, the leaks persisted, despite McKnight’s attempts to repair them. In addition to leaks, C & I identified other faulty-construction issues, such as the failure to comply with building codes. As a result of the outstanding repair work needing to be performed, C & I withheld payment of the retainage money awaiting McKnight’s compliance with the terms of the contract.

¶ 8. McKnight claims that in April 2003, C & I informed McKnight not to come back to the property. C & I disputes this claim. McKnight also alleges that C & I instructed McKnight to refrain from performing any warranty work. However, in its brief, C & I claims that McKnight refused to come back to the property and perform repairs.

¶ 9. Disputes arose between McKnight and C & I regarding the payment of the retainage money and the alleged defects with construction of the project. On June 19, 2003, McKnight filed a construction lien on the property in the principal amount of $37,873.10, which constituted the five percent retainage, plus interest at the contract rate. On August 29, 2003, McKnight filed a petition to enforce the construction lien against C & I. The Attala County Circuit Clerk entered an entry of default on October 16, 2003. After McKnight filed its motion for a default judgment, C & I obtained counsel. McKnight agreed to withdraw the applica[1026]*1026tion for a default judgment and allow C & I to file an answer. On December 18, 2003, the circuit judge entered an agreed order reflecting this agreement. The order also denied the motion for entry of a judgment by default and allowed C & I additional time to file its answer.

¶ 10. On March 2, 2005, C & I filed its answer and also filed a counterclaim against McKnight for breach of contract, breach of duty, and negligent construction/breach of workmanship. C & I also sought punitive damages. After a trial held on March 8-11, 2011, the jury awarded C & I $300,845.67 in damages. McKnight now appeals.

STANDARD OF REVIEW

¶ 11. This Court will not disturb a jury’s verdict “except in the most extreme of situations. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Robinson Prop. Grp., Ltd. Partnership v. McCalman, 51 So.3d 946, 948 (¶ 9) (Miss.2011). When reviewing a claim that a judgment is against the overwhelming weight of the evidence, this Court applies the following standard:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court will only disturb a verdict which is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Reversal is only proper when this Court is convinced that the circuit court has abused its discretion in failing to grant a new trial. Thus, the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict

Winding v. State, 908 So.2d 163, 167 (¶ 18) (Miss.Ct.App.2005) (citations omitted).

DISCUSSION

I. Whether the jury properly considered C & I’s failure to mitigate damages.

¶ 12. McKnight argues that the jury disregarded testimony and evidence proving that C & I failed in its duty to mitigate damages; thus, the jury erroneously awarded C & I $300,845.67 in damages.

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Cite This Page — Counsel Stack

Bluebook (online)
100 So. 3d 1022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ralph-mcknight-son-const-inc-v-c-i-entertainment-llc-missctapp-2012.