170 So. 3d 496
Miss.2015Background
- Inn By the Sea Homeowner’s Ass’n (IBTS) sued the developer, contractors, engineer and architect after reconstructed condominiums (post‑Katrina) manifested structural problems within a year of occupancy.
- IBTS timely designated two experts in June 2012: Michael Bailey (structural engineer) and Alfred Hayes (architect/cost estimator). Bailey disappeared in August 2012 and was replaced by Ashton Avegno in November 2012.
- Avegno identified overloaded foundation piles and recommended pile load tests but declined to provide precise itemized repair costs, stating he was not a qualified cost estimator. He provided only a broad cost range.
- The trial court ordered supplementation of Hayes’s cost opinions (specific grounds/calculations for each cost item) after defendants sought more detail; Hayes filed a late supplement that contained detailed calculations for only one of 23–24 cost items and used a 2008 RS Means manual.
- The court excluded Avegno’s cost opinions (unqualified) and excluded Hayes’s damages testimony as unreliable and inadequately disclosed; because IBTS lacked admissible expert damages proof, the court granted summary judgment for defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion in excluding Hayes’s damages testimony | Hayes was qualified and defendants’ reliability objections should wait for cross‑examination at trial | Hayes failed to disclose sufficient methodology/calculations for most cost items; supplement was untimely and incomplete | Exclusion affirmed — supplementation inadequate (only one item detailed); testimony unreliable under MRE 702 and discovery rules |
| Whether Avegno was qualified to give cost/damages opinions | Avegno’s experience and CV make him qualified; any initial disclaimers should not bar supplementation | Avegno expressly disclaimed qualification to prepare precise cost estimates; therefore unqualified to opine on damages | Exclusion affirmed — Avegno unqualified by his own admissions |
| Whether refusing supplementation of pile test results was abuse of discretion | IBTS argued defendants had notice (depositions) and new trial scheduling would avoid prejudice | Defendants argued supplementation would unfairly expand opinions beyond permitted scope and trial schedule | Court limited supplementation; IBTS’s related argument not addressed on appeal because exclusion of damages was dispositive |
| Whether lack of admissible damages evidence required summary judgment | IBTS argued damages could be proved at trial if experts admitted | Defendants argued without admissible expert damage proof plaintiff cannot meet burden for construction defect damages | Summary judgment affirmed — no admissible expert damages testimony remained |
Key Cases Cited
- Smith ex rel. Smith v. Gilmore Mem’l Hosp., 952 So. 2d 177 (Miss. 2007) (standard of review for summary judgment)
- Bowie v. Montfort Jones Mem’l Hosp., 861 So. 2d 1037 (Miss. 2003) (view evidence in light most favorable to nonmovant)
- Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31 (Miss. 2003) (Daubert factors and expert admissibility review)
- Hyundai Motor Am. v. Applewhite, 53 So. 3d 749 (Miss. 2011) (no trial‑by‑ambush; duty to seasonably supplement expert disclosures)
- Hoover v. United Servs. Auto. Ass’n, 125 So. 3d 636 (Miss. 2013) (reliability of repair‑cost estimates when based on known values)
- Utz v. Running & Rolling Trucking, Inc., 32 So. 3d 450 (Miss. 2010) (threshold for admissibility and probative value)
- Sumrall Church of Lord Jesus Christ v. Johnson, 757 So. 2d 311 (Miss. Ct. App. 2000) (measure of damages: actual repair costs)
- Ekornes‑Duncan v. Rankin Med. Cir., 808 So. 2d 955 (Miss. 2002) (discovery violations can warrant exclusion sanctions)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (trial court’s gatekeeping discretion on expert testimony)