134 So. 3d 752
Miss. Ct. App.2012Background
- TCB sued Fore for breach of contract over Fore's non-payment for debris-removal work south of Highway 53 after Katrina.
- Subcontract allowed modification “can and will be modified based upon facts and circumstances of all debris removal.”
- TCB billed the County for south-of-53 work; Fore paid on those invoices to the County but did not pay TCB.
- Circuit court submitted modification, breach, and damages to a jury; jury found modification but awarded $3,577,583.34.
- TCB moved for summary judgment and then for directed verdict; Fore’s denial of modification created factual dispute, but Court held modification proven by undisputed conduct.
- Court on rehearing reversed, rendered $6,634,436.69 in favor to TCB and remanded prejudgment-interest timing; punitive damages and attorney’s fees were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of modified subcontract by quasi-estoppel | TCB: Fore estopped from denying modification | Fore: no modification; independent denial valid | Modification established as a matter of law |
| Damages for modified breach | TCB entitled to $6,634,436.69 under modified rate | Fore disputes modified-damages amount | Damages rendered in favor of TCB; jury’s amount reversed and set to $6,634,436.69 |
| Prejudgment interest start date | Interest should run from breach for liquidated damages | Damages unliquidated; interest from filing complaint | Eight-percent prejudgment interest from breach on remand; remand to calculate from breach date |
| Punitive damages and attorney’s fees | Punitive fees warranted given willful breach | No malice shown; discretion to deny | Punitive damages and attorney’s fees denied; affirmed re: other aspects |
Key Cases Cited
- Hoerner v. First National Bank of Jackson, 254 So.2d 754 (Miss. 1972) (estoppel to deny liability when benefits accepted)
- Wood Naval Stores Export Ass'n v. Latimer, 220 Miss. 652, 71 So.2d 425 (Miss. 1954) (equitable estoppel principles; conduct-based estoppel)
- Bailey v. Estate of Kemp, 955 So.2d 777 (Miss. 2007) (quasi-estoppel; equity and windfall considerations)
- Cain v. Cain, 967 So.2d 654 (Miss.Ct.App. 2007) (prejudgment interest when damages liquidated from breach)
- Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954 (Miss. 1999) (liquidated damages; prejudgment interest)
- In re Estate of Fitzner v. Jurotich, 881 So.2d 164 (Miss. 2003) (equitable matters; quantum meruit context)