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Gray Props., LLC v. Util. Constructors, Inc.

Court of Appeals of Mississippi

June 10, 2014

GRAY PROPERTIES, LLC, APPELLANT
v.
UTILITY CONSTRUCTORS, INC., AND GUEST CONSULTANTS, INC., APPELLEES

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 03/14/2012. TRIAL JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED TO APPELLEES.

FOR APPELLANT: STEPHEN PAUL HUWE, MARC E. BRAND, C. MICHAEL ELLINGBURG SR.

FOR APPELLEES: WHITMAN B. JOHNSON III, MARK C. BAKER SR., SHELLY G. BURNS, CHRISTOPHER DAVID MORRIS, ADRIAN WESTBROOK MILLS.

BEFORE IRVING, P.J., BARNES AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY. MAXWELL, J., NOT PARTICIPATING.

OPINION

Page 1165

NATURE OF THE CASE: CIVIL - CONTRACT

BARNES, J.:

[¶1] Gray Properties LLC (Gray) hired Guest Consultants Inc. (Guest) in 2004 to perform engineering and survey work on real property owned by Gray. The purpose of the work was to develop the land for the construction of car dealerships. Guest requested bids from subcontractors for the site work on Gray's behalf, and Utility Constructors Inc. (Utility) submitted the winning bid. Gray entered into a contract with Utility to perform the preliminary site (dirt) work on the property on November 1, 2004. Under Guest's oversight, Utility installed building pads on the property and completed the work on December 22, 2004.

[¶2] On September 20, 2005, Gray conveyed ownership of the property to CAR AAG MS BRAN LLC (CAR). CAR subsequently constructed a building on the site for an automobile dealership. At some point between March 2008 and June 2008, it was discovered that the building had structural damage due to inadequate compaction of the soil. An initial estimate for repair was $60,000. However, no repair was performed on the building until over a year later, when Gray paid approximately $175,000 to repair the damage. When later questioned why the repair was not completed until one year after the damage was discovered, causing an increase in repair costs, the owner of Gray stated:

[W]ell, nobody wanted to step up to the pump and fix it, and, at the end of the day[,] . . . a year later, I guess it was probably, when we finally got everybody all together, and everybody was pointing fingers at everybody[, w]e had that much more settlement.

[¶3] Gray filed an action against Guest and Utility in May 2010, alleging damages from breach of contract and tortious acts. In the complaint, Gray claimed that Utility negligently compacted the soil, which caused the damage to the building, and that Guest did not perform adequate supervision of Utility's work. Both Guest and Utility denied any liability, and Guest filed a cross-claim against Utility, demanding that Utility indemnify it for any potential judgment against Guest.

[¶4] Utility filed a motion for summary judgment on June 23, 2011, claiming that Gray did not have standing to sue, as it did not hold title to the buildings and real property at the time the alleged defects in Utility's site work manifested. Guest joined Utility's motion for summary judgment. Gray responded on October 21, 2011, arguing that it had standing because:

Page 1166

(1) it had paid for the repairs; (2) the contract for site work was between Gray and Utility; and (3) Utility was required to indemnify Gray under the terms of Utility's commercial-liability insurance, which was required by the site-work contract. On November 21, 2011, Gray also filed an assignment of claims from CAR ...


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