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Clausell v. Bourque

Court of Appeals of Mississippi

March 3, 2015

CHRIS CLAUSELL, APPELLANT
v.
JEFFREY BOURQUE, APPELLEE

Page 385

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/23/2013. TRIAL JUDGE: HON. DALE HARKEY. TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED TO APPELLEE.

FOR APPELLANT: EDWARD D. MARKLE, STEPHEN B. SIMPSON.

FOR APPELLEE: GAIL D. NICHOLSON, CHESTER D. NICHOLSON.

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

OPINION

Page 386

FAIR, J.

¶1. One of Chris Clausell's new shower doors fell out of its track and injured his foot. Jeffrey Bourque had nothing to do with that. He was hired by the seller of the doors to inspect the installation and determine why the door had fallen off and whether the doors were repairable. Bourque decided the doors would have to be replaced. He told Clausell he would be back the next day to do it, but he never returned. The seller promised Clausell that it would hire someone to replace the doors, but for whatever reason that never happened.

¶2. Clausell put the door back up himself and continued to use it, even though the door regularly fell out of its track. Months later, Clausell was injured again, this time more seriously. Clausell sued Bourque, ultimately alleging that Bourque negligently failed to repair the doors, replace them, or warn Clausell of the danger. The trial court granted Bourque summary judgment, and Clausell appeals. We affirm.

FACTS

¶3. The Clausells purchased new shower doors at Lowe's, a retailer that sells various " home improvement" items. While Lowe's sells shower doors, it does not install them; instead, it arranges for a third-party contractor to perform the installation. In this instance, Clausell indicated that he wished to purchase doors for his shower. For a fee, Lowe's arranged for a third-party installer of its choosing (Joel Maguzzu) to perform a " detail" -- an inspection of the Clausell home to measure for the new doors. Clausell then used Maguzzu's specifications to purchase the appropriate door for his application from Lowe's. Clausell also paid Lowe's, separately, to arrange for the installation of the doors, again to be done by a third-party installer. Maguzzu installed the doors on November 19, 2008. The inside door began coming out of the track some time later. Within about two months, the door had fallen out of the track ten or fifteen times. Clausell contends that he brought this to the attention of Lowe's, but it did not act to remedy the situation until the

Page 387

door fell on Clausell's foot and caused him a severe bruise.

¶4. After Clausell complained about his injured foot, Lowe's hired Bourque to inspect the door installation. He did so on January 28, 2009. Whether Bourque was also tasked with repairing the doors is in dispute. It was undisputed, however, that Bourque told Clausell he would be back the next day to replace the doors. In his report to Lowe's, which was contemporaneously provided to the Clausells, Bourque indicated that the doors were damaged and would have to be replaced. He attributed the damage to uneven contact with the wall, which was severely out of plumb. Bourque stated (with reservations) that he believed new doors would work if shims were added so the top and bottom of the door struck the wall at the same time. Bourque charged Lowe's $35 for the inspection.

¶5. Contrary to Bourque's expectation, Lowe's did not hire him to replace the doors. Bourque considered his involvement in the matter finished at that point. After Bourque did not return the following day, Clausell contacted Lowe's, which represented to him that it would arrange for someone to replace the doors. For whatever reason, the doors were never replaced -- Clausell describes Lowe's as giving him the runaround. The Clausells put the doors back up themselves and continued to use them, even though the inner door would regularly fall out of the track and into the tub. On November 28, 2009, Clausell was seriously injured when he slipped and fell trying to evade the falling door.

¶6. Clausell brought suit against Lowe's, Maguzzu (the installer), and Bourque. The trial court initially granted summary judgment to Bourque alone. Clausell appealed from that order, but this Court found the appeal to be interlocutory since there were claims remaining against the other defendants. See Clausell v. Bourque, 122 So.3d 825, 827 (¶ ¶ 6-7) (Miss.Ct.App. 2013). After remand, the trial court entered a new ...


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