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Robohm v. Wheeler Roofing, Inc.

Court of Appeals of Mississippi

September 17, 2013

DONALD AND NATALIE ROBOHM, APPELLANTS
v.
WHEELER ROOFING, INC., AND BELFOR USA GROUP, INC., (INCORRECTLY NAMED IN THE COMPLAINT AS BALFOUR BEATTY CONSTRUCTION, LLC), APPELLEES

Page 173

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 08/29/2011. TRIAL JUDGE: HON. ROBERT P. KREBS. TRIAL COURT SUMMARY JUDGMENT FOR APPELLEE.

FOR APPELLANTS: STEPHEN W. MULLINS.

FOR APPELLEES: L. CLARK HICKS JR., BRADLEY CLAYTON MOODY, NAKIMULI ONI DAVIS, R. LANE DOSSETT, W. DAVIS FRYE.

BEFORE IRVING, P.J., CARLTON AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 174

NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE

CARLTON, J.

¶1. Donald and Natalie Robohm appeal Jackson County Circuit Court's grant of summary judgment in favor of Gulf Oaks Condominium Association Inc., Wheeler Roofing Inc., and Belfor USA Group Inc. (collectively, Gulf Oaks). The Robohms argue that Gulf Oaks failed to provide them with proper notice of the hearing on the summary-judgment motion, and that the trial court erred in applying the prior-trespass doctrine. Finding no error, we affirm.

FACTS

¶2. Marjorie Hatton owned Unit 46 at Gulf Oaks Condominiums in Ocean Springs, Mississippi. Hatton acquired the unit on February 25, 1994. Hatton's daughter, Natalie Robohm, possessed power of attorney over Hatton's affairs. Natalie and her husband, Donald Robohm, stated that they also paid premiums for a condominium owners' insurance policy through Gulf Oaks Condominium Association.

¶3. In 2005, Hurricane Katrina ravaged the Gulf Coast and destroyed the condominiums. Gulf Oaks hired Belfor USA Group [1] and Wheeler Roofing to make repairs to Unit 46. The repairs were completed in August 2007. When Hatton passed away in September 2007, the unit was transferred to Natalie by deed. The Robohms decided to sell the unit, and listed it with realtor Chester Harvey. The Robohms stated that even after completion of the repairs to the condominiums in August 2007, the unit still leaked water and had multiple construction issues. As a result, the Robohms lost a contract for the sale of the unit.

¶4. ¶ Harvey tried to show the unit again in October 2007, but discovered holes knocked in the sheetrock, carpets and padding pulled up, and industrial floors fans left on the floor. The Robohms learned that the roof had leaked again, causing damage to the unit. In January 2008, a routine inspection of the unit revealed that the hardwood floors on the first floor were completely destroyed by water intrusion and needed to be replaced. In May 2008, the roof leaked again, causing further damage to the walls and floor. In June 2008, while again attempting to show the unit, Harvey discovered that a sewer backup caused black sludge to coat the first floor bathroom and foyer. The Robohms stated that in August 2008, another roof leak damaged the walls and floors.

¶5. In October 2008, the Robohms filed suit against Gulf Oaks, alleging breach of duty, negligent and wanton conduct, breach of warranty, breach of implied warranty of habitability, breach of implied warranty of merchantability, and vicarious liability. The complaint specifically alleged that in " August of 2007 the [Robohms] discovered that there were several defects with regard to the constructive repairs causing water to leak into space between the first floor ceiling and the second floor." After lengthy litigation and numerous inspections, Gulf Oaks filed its motion for summary judgment on June 30, 2011, arguing that the Robohms lacked ...


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