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Clausell v. Bourque

Court of Appeals of Mississippi

October 1, 2013

Chris CLAUSELL, Appellant
v.
Jeffrey BOURQUE, Appellee.

Page 826

Edward D. Markle, attorney for appellant.

Gail D. Nicholson, Chester D. Nicholson, Gulfport, attorneys for appellee.

Before IRVING, P.J., BARNES and MAXWELL, JJ.

IRVING, P.J.

¶ 1. Chris Clausell filed an amended complaint in the Jackson County Circuit Court against Lowe's Home Center Inc. (Lowe's), Joel Magazzu, and Jeffrey Bourque, alleging intentional and/or gross negligence in installing shower doors in his home. Bourque filed a motion for summary judgment, [1] which the circuit court granted. Feeling aggrieved, Clausell appeals and presents the following issues, which we have recast for clarity: whether the court erred by ruling that Bourque was under no legal duty to repair the shower doors; whether the court erred in ruling that Bourque had made a gratuitous promise and that Clausell did not detrimentally rely on that promise; and whether the court erred in ruling that there was insufficient evidence to impose an independent duty upon Bourque to repair the doors.

¶ 2. Because we find that the circuit court's judgment is not a final, appealable judgment, we dismiss this appeal for lack of jurisdiction.

FACTS

¶ 3. Clausell's wife, Tammy, purchased shower doors from Lowe's. Magazzu installed the doors. A couple of months later, Clausell called and informed Lowe's that one of the shower doors had fallen and caused an injury to his foot. Lowe's issued a work order to Bourque, an independent contractor, stating that the " customer said shower door fell and hurt his toe, please take a look and try to find out how it fell and how bad it is broke [sic]." Bourque went to Clausell's home to inspect the doors and, afterwards, submitted an invoice to Lowe's that indicated what needed to be done to fix the doors. For whatever reason, Lowe's did not repair the doors at that time or request Bourque to do so. Ten months after Bourque's inspection, one or both of the doors fell again while Clausell was taking a shower, causing injury to Clausell. Thereafter, Magazzu installed new doors, and Clausell filed his initial complaint, which did not include Bourque as a defendant.

¶ 4. After Clausell filed his amended complaint, adding Bourque as a defendant, Bourque filed a motion for summary judgment stating that there were no issues of material fact regarding whether he provided or sold defectively designed or manufactured doors, improperly installed the shower doors, made misrepresentations or negligent recommendations concerning the type of shower doors to be installed, failed

Page 827

to warn Clausell that the doors were inadequate, or committed any other act of negligence proximately causing Clausell's alleged damages. The circuit court granted the motion on the ground that Bourque was under no duty to repair the shower doors.

¶ 5. Additional facts, as necessary, will be related during the analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. If neither party has addressed the finality of the circuit court's order, we must address the question on our own initiative. Williams v. Delta Reg'l Med. Ctr.,740 So.2d 284, 285 (¶ 5) (Miss.1999). Rule ...


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