Gary Rolison v. Edith Carolyn Fryar
204 So. 3d 725
| Miss. | 2016Background
- Gary and Martha Rolison purchased a sawmill property from Robert and Caleb Fryar in 2006; disputes over equipment and materials led to consolidated litigation.
- On February 15, 2011, parties orally waived jury trial and were ordered to mediation; a March 2, 2011 mediation produced a written settlement under which Fryars would pay $400,000 and receive the property and “all equipment and materials as is where is.”
- Rolisons later repudiated the settlement; Fryars attempted tender, filed to enforce the settlement, and sought damages and attorney fees for delay and removal/damage to property.
- A bench trial in October 2011 found the settlement enforceable; the court entered a Rule 54(b) final judgment on enforceability and reserved damages and fees. Rolisons appealed but later voluntarily dismissed that appeal after a second settlement in August 2012 that preserved Fryars’ damages claim.
- After trial on damages (January 12, 2015) the court awarded $231,960.32 for repairs/replacements, $75,000 lost profits, and $92,772.70 in attorney fees (total $399,733.02), finding breach intentional and conduct supporting fees. Rolisons timely appealed issues relating to damages and jury right.
Issues
| Issue | Plaintiff's Argument (Rolisons) | Defendant's Argument (Fryars) | Held |
|---|---|---|---|
| Whether Rolisons validly waived state constitutional jury right | Oral waiver was ineffective because Rule 38(b) requires a written waiver; breach-of-contract claim arose later and was not waived | Rolisons orally waived and litigated the enforcement issue to the bench; they forfeited the right to demand a jury later | Court: Written waiver not filed (Rule 38), but Rolisons forfeited jury right by trying enforcement to the bench; no jury on damages/fees |
| Validity of Rule 54(b) certification | Certification was erroneous because damages/fees remained pending so judgment was not final under Rule 54(b) | Rule 54(b) entry (even if erroneous) triggered appeal period; Rolisons appealed then dismissed, losing ability to challenge now | Court: Jurisdictional time ran; because Rolisons dismissed prior appeal they cannot now challenge Rule 54(b) judgment |
| Denial of motion to intervene (Rolison Jr. and trust) | Intervention necessary to protect ownership interests in equipment/materials; parents lacked authority to bind son/trust | Motion untimely; trust and family interests so intertwined parents could bind trust; issues resolved at bench trial | Court: Denial not reviewable here (was resolved in the Rule 54(b) judgment that Rolisons failed to preserve on appeal); alternative findings supported denial |
| Damages, mitigation, and attorney fees awards | Fryars unreasonably refused a November 2011 offer that would have mitigated damages; some damages speculative or attributable to third-party theft, and fees improper | Fryars had no duty to accept less than bargained-for terms; evidence showed theft/vandalism and failure to secure property; Rolisons’ conduct justified fees | Court: Awards upheld as supported by substantial, credible evidence; Fryars had no duty to accept lesser offer; fees warranted for outrageous intentional breach and violations of court orders |
Key Cases Cited
- Brewer Constr. Co., Inc. v. David, Brewer, Inc., 940 So.2d 921 (Miss. 2006) (bench findings accorded deference if supported by substantial evidence)
- Upchurch Plumbing, Inc. v. Greenwood Utils. Comm’n, 964 So.2d 1100 (Miss. 2007) (questions of law reviewed de novo)
- Burnette v. Hartford Underwriters Ins. Co., 770 So.2d 948 (Miss. 2000) (Rule 38(b) requires written waiver of jury right)
- Love v. Barnett, 611 So.2d 205 (Miss. 1992) (appellate court may affirm for correct result despite wrong reasoning)
- U.S. v. Olano, 507 U.S. 725 (U.S. 1993) (distinguishing waiver from forfeiture)
- Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394 (U.S. 1981) (errors in law make judgments voidable, not subject to collateral attack)
- In re Lindsay, 59 F.3d 942 (9th Cir. 1995) (Rule 54(b) certification starts time for appeal)
- Brown v. Collections, Inc., 188 So.3d 1171 (Miss. 2016) (limits on invoking Rule 54(b); cannot certify judgments that leave portion of claim pending)
- Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897 (Miss. 1987) (Rule 54(b) practice and consideration of findings)
- Cain v. Mid-South Pump Co., 458 So.2d 1048 (Miss. 1984) (damages may be awarded where nature of loss is certain though amount uncertain)
- Benchmark Health Care Ctr., Inc. v. Cain, 912 So.2d 175 (Miss. Ct. App. 2005) (standards for proving lost profits recovery)
- Bluewater Logistics, LLC v. Williford, 55 So.3d 148 (Miss. 2011) (attorney fees generally not recoverable for contract breach unless contract or outrageous conduct justifies them)