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Perry Inv. Group, LLC v. CCBCC Operations, LLC

Court of Appeals of Mississippi

February 18, 2014

PERRY INVESTMENT GROUP, LLC, APPELLANT
v.
CCBCC OPERATIONS, LLC D/B/A LAUREL COCA-COLA BOTTLING CO., CCBCC, INC. D/B/A LAUREL COCA-COLA BOTTLING CO. AND HUDSON'S DIRT CHEAP, LLC, APPELLEES

Page 889

COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/26/2012. TRIAL JUDGE: HON. BILLY JOE LANDRUM. TRIAL COURT DISPOSITION: MOTIONS FOR SUMMARY JUDGMENT GRANTED.

FOR APPELLANT: DANIEL AUSTEN SILKMAN.

FOR APPELLEES: WEYMAN WILLIAMS MCCRANIE JR., NANCY L. SIPLES BRUMBELOE.

BEFORE IRVING, P.J., ROBERTS AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

Page 890

NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE

ROBERTS, J.

[¶1] This appeal stems from a fire that damaged a commercial building owned by Perry Investment Group LLC (" Perry" ). Perry claimed that the fire was caused by the power cord to a Coca-Cola vending machine that Perry's tenant, Hudson's Dirt Cheap LLC (Dirt Cheap), allowed to be placed in the building. Perry sued Dirt Cheap and the company that owned the Coca-Cola vending machine, CCBCC Operations LLC (CCBCC). Perry also sued the manufacturer of the vending machine, but it later settled that claim. Dirt Cheap and CCBCC each filed motions for summary judgment. Ultimately, the Jones County Circuit Court granted both motions for summary judgment. Perry appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

[¶2] Perry owned a commercial building in Richton, Mississippi. Dirt Cheap leased part of Perry's building. Through Dirt Cheap, CCBCC [1] obtained permission to put a Coca-Cola vending machine inside the building. Timothy Sanchez was the CCBCC sales representative who maintained and serviced the vending machine. Sanchez's last service call to Dirt Cheap was on May 28, 2008. Sanchez noted that the vending machine was in good working order.

[¶3] At approximately 4:00 a.m. on June 2, 2008, a burglar alarm indicated that

Page 891

there had been movement inside Dirt Cheap. Specifically, the alarm indicated that there had been movement near the entrance to the store. Officer Dennis Smith of the Richton Police Department responded and saw no sign of entry into the building.

[¶4] Approximately forty minutes later, three different motion detectors went off inside the building. Officer Smith returned and saw fire inside the building. Officer Smith alerted the Richton Volunteer Fire Department (RVFD). Within minutes, RVFD responded. RVFD put out the fire with assistance from volunteer fire departments from Runnelstown and New Augusta, Mississippi. Unfortunately, the fire damaged a significant portion of the store.

[¶5] On August 22, 2008, fire investigator Gary Jones, CFI, CFEI, first visited the scene of the fire at the request of Perry's attorney. A number of representatives from Travelers Insurance and Dirt Cheap were present during Jones's inspection. Additionally, engineer John W. Lipscomb Jr., PhD, PE, also inspected the scene.

[¶6] Approximately one month later, Jones finalized his written but unsworn report for Perry's attorney. According to Jones, the fire began inside the front of the building, but behind the vending machine. Jones reported that " fire movement and heat[-]intensity patterns" indicated that the fire did not begin in the office that was near the front of the building. Jones noted that the vending machine's power[-]supply cord exhibited " signs of arcing and beading." Consequently, Jones concluded that " the electrical outlet was energized when the electrical activity developed in the cord," and " a failure in the receptacle or its electrical conductors could not have taken place since this would have de-energized the power cord."

[¶7] Jones opined that the sequence of the burglar alarms supported the theory that the fire began near the back of the vending machine. Jones reported that the vending machine was " located within the monitoring system's area of surveillance and could have produced sufficient smoke to cause the activation of the [first] alarm." Jones further opined that the subsequent alarms were triggered by smoke as the fire spread to other parts of the building. Jones said that Officer Smith would not have been able to see flames behind the vending machine when he investigated the first alarm. However, Officer Smith saw the flames, which were about " knee high," when he investigated the subsequent alarms.

[¶8] Jones discounted a theory that was being considered by a representative of Travelers Insurance that connected the fire to the theft of gasoline that had occurred the same night as the fire. Jones stated that authorities had arrested two teenagers involved in the theft of gasoline, " and no evidence was uncovered to show a link with th[e] theft and the fire."

[¶9] Approximately two weeks after Jones finalized his written report, Dr. Lipscomb finished his own unsworn written report. Dr. Lipscomb also reported that the fire originated near the vending machine. Dr. Lipscomb opined that an electrical arc in the vending machine's power cord ignited some unspecified flammable material adjacent to the vending machine. According to Dr. Lipscomb, " [t]he most likely cause of the electric arc was mechanical insulation damage to the power cord[,]" and the damage to the power cord " was probably crushing." Dr. Lipscomb added ...


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