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Bar-Til, Inc. v. Superior Asphalt, Inc.

Court of Appeals of Mississippi

August 26, 2014

BAR-TIL, INC., APPELLANT
v.
SUPERIOR ASPHALT, INC. AND PULL-A-PART OF JACKSON, LLC, APPELLEES

COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT. DATE OF JUDGMENT: 09/05/2012. TRIAL JUDGE: HON.J. DEWAYNE THOMAS. TRIAL COURT DISPOSITION: DENIED APPELLANT'S CLAIM FOR PUNITIVE DAMAGES.

FOR APPELLANT: CHUCK MCRAE, GRETA LYNETTE KEMP.

FOR APPELLEES: JOSEPH LEE ADAMS, CORY LOUIS RADICIONI ROBERT GREGG MAYER CRANE D. KIPP.

BEFORE IRVING, P.J., BARNES AND CARLTON, JJ. MAXWELL, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 1029

NATURE OF THE CASE: CIVIL - CONTRACT

CARLTON, J.

[¶1] Bar-Til Inc. appeals the Hinds County Chancery Court's judgment denying its claim for punitive damages. Bar-Til argues that the chancellor erred by failing to consider the bifurcated issues of bad faith and punitive damages.[1] Finding no error, we affirm the chancellor's ruling.

FACTS

[¶2] In January 2007, Pull-A-Part of Jackson LLC and Superior Asphalt Inc. (collectively Defendants) entered into a contract for Superior to perform work on Pull-A-Part's property. Superior entered into a subcontract with Bar-Til and engaged Bar-Til to perform site and dirt work for the project. According to Bar-Til's contract with Superior, Bar-Til would clear approximately 26 acres of land and strip almost 20,000 cubic yards of topsoil for $62,630. Superior later expanded the scope of Bar-Til's work on the project for a total of $111,410. Superior sent Bar-Til a (Letter of Intent to Award," which reflected these contract changes. Robert Cox, the project manager, signed the letter on behalf of Superior. In his findings of fact in the court below, the chancellor also noted that Superior issued Bar-Til additional work in the amount of $34,340.

[¶3] After starting the Pull-A-Part project, Superior discovered that certain items in the original project plan failed to consider new FEMA requirements for flood-zone elevation and that (the grades for proper drainage over the entire site were incorrect." The original project plan required 20,000 cubic yards of dirt to be used as fill to provide proper drainage. However, Superior had since learned that a minimum of 53,000 cubic yards of dirt was needed to correct the problems. As a result, Superior authorized Bar-Til to excavate the additional 33,000 cubic yards of dirt for $74,250.

[¶4] In July 2007, Mike Carroll replaced Cox as Superior's project manager. On August 21, 2007, Carroll ordered Bar-Til to cease work to allow Superior to conduct a topographical survey. Bar-Til later resumed work in September 2007. In his findings of fact, the chancellor noted that, " [a]s problems developed on the project, Carroll continued to give Bar-Til oral change orders[,] and Bar-Til continued to work and submit invoices as the parties had done for the previous several months. However, Superior stopped paying invoices totaling $156,972.50 . . . ." The chancellor further noted that Bar-Til completed the project in December 2007, but Superior failed to pay Bar-Til for completion of the project.

[¶5] Bar-Til filed a complaint in Hinds County Chancery Court on May 13, 2009, against the Defendants. Bar-Til asserted that Pull-A-Part was unjustly enriched as a result of Bar-Til's unpaid work and that Superior breached the parties' contract, breached the implied covenant of good faith and fair dealing, and breached its fiduciary duty to Bar-Til. The trial took place over the course of five different dates: June 20, 2011; June 21, 2011; November 10, 2011; February 13, 2012; and February 14, 2012.

[¶6] On November 10, 2011, the third day of trial, Bar-Til asked to amend its complaint. Bar-Til asserted that Superior's conduct constituted bad faith, and Bar-Til ...


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