Stanton & Associates v. Bryant Const. Co.Stanton & Associates v. Bryant Const. Co.
I.
This appeal follows a jury verdict in favor of a subcontractor in the amount of $16,405.30 as compensation for bulldozer services afforded the prime contractor on a road construction project in Jefferson County, Mississippi. Attorneys fees in the amount of $4,920.00 and prejudgment interest were also awarded to the subcontractor.
On appeal, the prime contractor contends that: (1) the trial court erred in awarding the subcontractor its reasonable attorneys fees incurred in prosecuting this action; (2) the trial court erred in awarding the subcontractor prejudgment interest; (3) the trial court erred in overruling the prime contractor‘s motion to dismiss pursuant to Rule 12(b)(6), Miss.R.Civ.P.; (4) the quantum meruit verdict of the jury was against the weight of the evidence; and (5) the trial court erred in assessing costs to the defendant prime contractor.
For the reasons set forth below, we affirm in part and reverse in part.
II.
A.
In September of 1981, Stanton & Associates, Inc., a corporation, Defendant below and Appellant here, received a contract with the State of Mississippi to perform Job Number 32(39) — aptly named (considering the trouble and expense this litigation has generated) the Poor House Road Project. Shortly thereafter, Stanton discussed with Bryant Construction Company, also a corporation, Plaintiff below and Appellee here, that portion of the project which involved “clearing and grubbing” approximately 24 acres. Bryant offered to do the clearing and grubbing for $1,200.00 an acre, but Stanton refused this offer. Following this specific negotiation, Stanton and Bryant agreed orally that Bryant, as subcontractor, would help Stanton, as prime contractor, with the job and would be paid by the hour — but the amount Bryant would be paid per hour was not set or even discussed.1 Other equipment owned by Stanton aided Bryant in the clearing and grubbing work. The parties stipulated that Bryant‘s bulldozer performed 291 1/2 hours of work.
Most of the testimony in this case centered upon extrapolating the value of clearing and grubbing that 24 acres of land and what percentage of such value was contributed by the 291 1/2 hours worked by Bryant‘s bulldozer. Stanton contended that the job was at most worth $24,000 and that Bryant contributed approximately 30 percent of the work; therefore, Stanton would owe Bryant some $7,200.00. This evaluation took into account the age and state of repair of Bryant‘s bulldozer. In contradistinction, Bryant put on proof regarding the normal hourly rate paid when hiring bulldozers, including the rates paid on other jobs for the very bulldozer in question. Suffice it to say that all this proof combined to pose a question for the
B.
Procedurally, Bryant commenced this action on January 19, 1982, when it filed its complaint in the Circuit Court of Jefferson County. As originally filed, the complaint named Stanton, the prime contractor, and its bonding company, United States Fidelity & Guaranty Co., as defendants. The claim against USF & G was dismissed prior to trial. Bryant does not cross-appeal this dismissal of USF & G.
In due course thereafter, Stanton filed a motion to dismiss which in relevant part charged that the complaint failed to state a claim upon which relief could be granted. See
The jury was also instructed through Instruction C-3 that their verdict should include a credit to Stanton in the amount of $5,457.20 for monies and diesel fuel already provided to Bryant by Stanton. After having been duly instructed, the jury returned a verdict for Bryant in the amount of $16,405.30. The trial judge also awarded attorneys fees to Bryant in the amount of $4,920.00 and also ordered Stanton to pay prejudgment interest and all costs. This appeal has followed.
III.
A. What Kind of Lawsuit is This?
One principal focus of Stanton‘s appeal is a challenge to the attorneys fees and prejudgment interest awarded Bryant. In order to sustain these awards, Bryant must be able to characterize its suit as either one on a payment bond or one on an open account in order to take advantage of the statutory provisions for attorneys fees and/or prejudgment interest, for it is often stated that in the absence of statute or contract providing expressly therefor, or proof sufficient to support an award of punitive damages, there can be no recovery of attorneys fees or pre-judgment interest. See, e.g., Litten v. Grenada County, 437 So.2d 387, 388 (Miss. 1983); Bellefonte Insurance Company v. Griffin, 358 So.2d 387, 391 (Miss. 1978).
Sensing this obstacle, Bryant seeks to characterize his suit as based on one of two statutes. The propriety of awarding attorneys fees in a suit on open account is controlled by
If Bryant‘s suit does not fit into either the open account or the payment bond molds — but turns out to be merely a suit in quantum meruit — attorneys fees and pre-judgment interest are not available. We have held that in a suit by a prime contractor against its subcontractor, attorneys fees are not recoverable in the absence of a provision therefor in the contract. Clow Corp. v. J.D. Mullican, Inc., 356 So.2d 579, 584 (Miss. 1978).
The issue of whether Bryant‘s suit is one on an open account can be settled quickly: Bryant has brought suit on an unliquidated claim. Reference to the “statement of account” attached to Bryant‘s complaint reveals that, although the dates and the hours worked on those
Furthermore, in order to qualify as a suit on an open account, the debtor must have failed to pay within 30 days after receipt of a written demand made in compliance with
The policy underlying the statutory and caselaw provisions for attorneys fees and prejudgment interest aims at protecting a creditor who has a specific liquidated claim from suffering damage by a debtor‘s unreasonable delay in payment. Considerations of such policy are not triggered in this case, as it does not appear that Stanton was aware of how much Bryant claimed until approximately the time this suit was filed. Instead of being an open account, “[s]crutiny of the declaration indicates that it is a suit sounding in contract ...” Westinghouse, 361 So.2d at 992.
The analysis of whether Bryant‘s suit is one upon a payment bond is similar, for Bryant‘s unliquidated claim lacks the elements usually associated with a suit on a payment bond. In particular, the surety who provided the payment bond is not a party to this lawsuit. USF & G was dismissed from this lawsuit.2 How a lawsuit can be characterized as one on a payment bond when no obligation undertaken by virtue of the bond is a predicate for the claim of liability and where the surety is not party to the lawsuit is not apparent, although the point has been earnestly pressed.
Furthermore, the way this lawsuit was handled does not comport with statutory guidelines. For instance, under both old
While Bryant‘s suit would be substantially mischaracterized as either a suit on an open account or a suit on a payment bond, it does appear to be a straight forward claim in quantum meruit. Griffith v. Goodin, 202 Miss. 548, 551, 32 So.2d 743, 744 (1947). Nearly all the proof put on by both parties at trial was focused on the issue of the value of Bryant‘s work. This would appear the proper theory upon which to understand this lawsuit. See Wiltz v. Huff, 264 So.2d 808, 811 (Miss. 1972) (quantum meruit recovery for express or implied contracts).
B. The Rule 12(b)(6) Motion
Stanton contends that the trial court‘s refusal to dismiss Bryant‘s complaint for failure to state a claim,
Seizing upon Bryant‘s attempts to bring its case within the open account or payment bond statutes, Stanton argues in effect that Bryant‘s whole case stands or falls with those theories of recovery. In view of what has been said above, this assignment of error is necessarily reduced to the suggestion that Bryant‘s complaint is insufficient as a matter of law to state a claim for quantum meruit. Even if the suggestion were arguably sound (which it is not), the assignment raises a question which, in the present procedural posture of the case, one would have thought moot.
The issue of whether the denial of a
At first glance, it would appear that Stanton‘s couching this assignment of error in terms of a
Stanton is seriously claiming that the complaint originally was deficient and should have been dismissed below and should be dismissed here. Stanton makes this claim in spite of its concession that it owes Bryant something and of the further fact that Bryant‘s proof made out a perfectly viable claim in quantum meruit.3
And so it is with the Complaint — it has the body of a suit on open account, some appendages appear to be those of a suit on a contractor‘s bond — and once the trial begins Appellee attempts to fly it on the wings of a quantum meruit.
[... .] In the case at bar, Appellee‘s Complaint did not set up any one plea that is sufficient in law. Appellant‘s objection to the defects was timely made in the form of the motion described herein above and the defects were not cured by the verdict.
— Appellant‘s Brief at 31, 33.
Stanton fails to perceive that the denial of a
More specifically, the refusal of the trial judge to grant a
More fundamentally, Stanton seems unwilling to acknowledge the limited role of pleadings under our new rules.
(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and,
(2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.
(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
When a complaint is tested via a motion under
The leading federal case,5 Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), construing an identically worded provision of the Federal Rules of Civil Procedure, states that
a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.6
355 U.S. at 45-46, 78 S.Ct. at 102, 2 L.Ed.2d at 84.
All of this aside, we hold that, in the procedural context of this case, Stanton has no right of appeal from refusal of the trial judge to grant his
Stanton‘s only appeal from the quantum meruit verdict lies on substantive grounds. Did Bryant at trial establish its quantum meruit claim? Suffice it to say that the proof is without contradiction that Stanton owes Bryant something, the only question being how much. In this context it may not rationally be questioned that Bryant has established the liability phase of a quantum meruit claim.8 Since we have before us no assignment of error urging that Bryant‘s evidence was beyond the scope of his complaint, the matter is at an end. The assignment of error is denied.
C. Was the Verdict Excessive?
The jury in this case was charged with ascertaining the value of the services which Bryant performed for Stanton. The point was hotly contested at trial, as it is here. Stanton‘s argument on appeal is that Bryant offered to do the entire job originally by himself for $24,000 and, therefore, payment to Bryant should be calculated by multiplying $24,000 by the percent of the work Bryant actually performed. $24,000.00 X 30% = $7,200.00. The formula which Stanton offers here is, of course, one possible way of calculating the value of Bryant‘s services. It is not the only one, however, presented to the jury.
Bryant offered credible evidence of the fair value of its bulldozer per hour. Bryant proved what it had been paid per hour on other jobs and prices paid others for the use and services of arguably comparable equipment. The jury‘s calculation that Bryant‘s services were worth $16,405.30 is not unreasonable as there was testimony which would clearly support this verdict.
We take such issues from the jury only where, under our familiar test, the facts are so clear that reasonable minds could not differ. See, e.g., City of Jackson v. Locklar, 431 So.2d 475, 478-79 (Miss. 1983) (standard for removing issues from jury); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 656-57 (Miss. 1975) (same); General Tire & Rubber Co. v. Darnell, 221 So.2d 104, 105-07 (Miss. 1969) (same).
— Stong v. Freeman Truck Line, Inc., 456 So.2d 698, 708 (Miss. 1984).
A jury award of unliquidated damages will not be disturbed by this Court on appeal unless it has been made to appear that the amount is either so grossly excessive or so grossly inadequate as to “shock the enlightened conscience” or evince bias, passion or prejudice on the part of the jury.
Stanton‘s fervor to the contrary notwithstanding, we are not so shocked by the verdict here under attack.
D. Costs
Stanton contends that although Bryant was the prevailing party, he should be assessed costs because:
This case went to trial in June, 1982, and resulted in a mistrial on the Motion of the Appellant. The Appellant takes the position as a matter of law, that the major costs accrued prior to the mistrial should not have been assessed to the Appellant as the mistrial was occasioned by the misconduct of the Appellee, and witnesses called on its behalf and further, the Appellee joined in the third motion for a mistrial.
Appellants Brief at 41.
The misconduct Stanton is referring to is that one of Bryant‘s witnesses was seen speaking to one of the jurors.
Neither party cites any law regarding this cost issue. The leading cases as to costs are: Magee v. Holmes, 220 Miss. 49, 70 So.2d 60 (1954); United Press Associations v. McComb Broadcasting Corp., 201 Miss. 68, 28 So.2d 575 (1947); and Reinecke v. Gibbs, 196 Miss. 247, 16 So.2d 853 (1944). These cases hold that a plaintiff who obtained substantial recover is entitled to recover costs. Nothing in these cases indicate that this cost rule should be altered in the event of mistrials. Furthermore, according to the testimony regarding the misconduct, it appeared to be more the result of a small town where everyone knows everyone else rather than some pernicious jury tampering.
IV.
By reason of what we have said above, so much of the judgment below as awards Bryant $16,405.30 in damages and assesses a like sum against Stanton is affirmed. That judgment shall bear interest as provided by law from the date of original entry, October 12, 1982, and costs as allowed by law. Beyond that, the judgment below is reversed and rendered.
AFFIRMED IN PART, REVERSED IN PART.
PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, PRATHER, SULLIVAN and ANDERSON, JJ., concur.