131 So. 3d 1203
Miss. Ct. App.2013Background
- Gilmer hired Morris Goodman Builders to construct his house based on plans Jim Goodman drafted from measurements/photos of another house; construction began in 2000.
- Gilmer stopped paying in June 2001 after alleging numerous defects (framing, brickwork, chimneys, material storage); Morris Goodman stopped work and sued Gilmer for unpaid labor and expenses ($83,951.78).
- Gilmer counterclaimed for breach of contract, breach of workmanship, breach of express warranty, fraudulent inducement, and fraudulent misrepresentation.
- Trial evidence included testimony from Jim Goodman (contractor/owner, admitted as residential construction expert), subcontractors, county inspector, and Gilmer’s experts who later repaired the house. Conflicting testimony addressed standards, framing (including allegedly culled studs and wrong-sized I-joists), and brickwork.
- Jury returned verdict for Morris Goodman for the unpaid amount and the trial court awarded attorney’s fees ($28,542.46). Gilmer appealed raising eight issues; the appellate court affirmed in all respects.
Issues
| Issue | Gilmer's Argument | Morris Goodman’s Argument | Held |
|---|---|---|---|
| Refusal to give jury instruction on fraudulent misrepresentation by elder Goodman | Elder Goodman’s reputation and prior statements supported instruction | No evidence elder Goodman made representations or was a party; instruction lacked foundation | Court affirmed refusal: no foundation for instruction |
| Expert testimony (Jim Goodman) | Jim testified beyond his expertise on specific construction matters | Jim’s 40 years’ residential construction experience qualified him as an expert | Court affirmed admission: experience sufficient under Rule 702 principles |
| Verdict against overwhelming weight of evidence | Gilmer’s experts showed substandard work and widespread defects | Evidence supported that work met applicable building regs; conflicts in testimony for jury to weigh | Court declined to disturb verdict: credibility conflicts resolved by jury |
| Award of attorney’s fees | Fees were awarded without sufficient proof of reasonableness | Movant produced affidavit, hourly rates comparison, and itemized statement | Court affirmed fee award: credible evidence supported reasonableness |
Key Cases Cited
- Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373 (Miss. 2004) (standards for jury instructions read together and refusal grounds)
- Holland v. Peoples Bank & Trust Co., 3 So.3d 94 (Miss. 2008) (elements required to prove fraudulent misrepresentation)
- Miss. Transp. Comm’n v. McLemore, 863 So.2d 31 (Miss. 2003) (admission of expert testimony reviewed for abuse of discretion)
- Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141 (Miss. 2007) (expert qualification may be based on experience alone)
- McKee v. Bowers Window & Door Co., 64 So.3d 926 (Miss. 2011) (experience alone may qualify witness as expert)
- Robinson Prop. Grp., Ltd. P’ship v. McCalman, 51 So.3d 946 (Miss. 2011) (standard for overturning jury verdict as against overwhelming weight of evidence)
- Regency Nissan, Inc. v. Jenkins, 678 So.2d 95 (Miss. 1996) (attorney’s fees award must be supported by credible evidence)
- Tentoni v. Slayden, 968 So.2d 431 (Miss. 2007) (procedural bar for appellate challenges lacking authority)
- Robinson v. Brown, 58 So.3d 38 (Miss. Ct. App. 2011) (failure to object at trial bars appellate review of closing-argument issues)