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Inn by Sea Homeowner's Ass'n., Inc. v. Seainn, LLC

Supreme Court of Mississippi

July 30, 2015

INN BY THE SEA HOMEOWNER'S ASSOCIATION, INC.
v.
SEAINN, LLC, DRACE CONSTRUCTION CORP., CARUBBA ENGINEERING, SOUTHERN CROSS CONSTRUCTION COMPANY, HARRY BAKER SMITH ARCHITECTS II, PLLC AND GREG STEWART

Page 497

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/31/2013. TRIAL JUDGE: HON. JOHN C. GARGIULO. TRIAL COURT ATTORNEYS: DAVID C. GOFF, ADAM STONE, NICHOLAS VAN WISER, THOMAS L. CARPENTER, WILLIAM J. LITTLE, JR.

AFFIRMED.

FOR APPELLANT: ROSS DOUGLAS VAUGHN, JOSEPH L. McREYNOLDS, DAVID C. GOFF.

FOR APPELLEES: NICHOLAS VAN WISER, KAYTIE MICHELLE PICKETT, ADAM STONE, THOMAS LYNN CARPENTER, JR., VINCENT AUGUST, NOLETTO, JR., CARTER R. HALE, LEAH NICHOLS LEDFORD, WILLIAM J. LITTLE, JR.

BEFORE WALLER, C.J., CHANDLER AND KING, JJ. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR.

OPINION

Page 498

CHANDLER, JUSTICE

[¶1] This action was brought by Inn By the Sea Homeowner's Association, Inc. (" IBTS" ) against various defendants involved in the development, design, and construction of Inn By the Sea Condominiums in Pass Christian when the condominiums were rebuilt after they were destroyed by Hurricane Katrina. Within a year of reconstruction, significant problems with the building began to manifest, problems allegedly related to defects in the design and construction of the property. The trial court granted summary judgment to the defendants after excluding the damages testimony of IBTS's expert witnesses. We find that the trial court did not abuse its discretion in excluding the plaintiff's witnesses, and therefore affirm the grant of summary judgment.

FACTS AND PROCEEDINGS BELOW

[¶2] According to IBTS, the appellant-plaintiffs, Inn By the Sea Condominiums began showing signs of significant structural defects within a year of the issuance of the Certificate of Occupancy in 2009. ITBS sued the developer, various contractors, the structural engineer, the architect, and ten John Does as " unknown persons that provided material services, acted in a supervisory capacity, or were otherwise involved in the construction of the Condominiums." [1] The parties entered into an Agreed Scheduling Order on March 3, 2012, with a trial date set for December 3, 2012. IBTS hired Michael Bailey of Kyle Associates, LLC, as its expert structural engineer and Alfred Hayes of Hayes Architect as its expert architect to investigate and identify defects in the design and construction of the property. IBTS timely designated these experts on June 16, 2012,

Page 499

and produced a copy of the witnesses' reports and cost estimates. Bailey estimated costs to correct engineering design defects to be $1,830,000. Hayes identified twenty-three design and construction defects which he estimated would cost $1,322,000 to repair. He subsequently updated his report in August 2012 and revised his repair estimate to $2,689,000 for the twenty-three identified defects. His report contained a description of each defect and a rounded, ballpark cost estimate to repair each defect. For example, Item Two states:

2. Condenser Equipment is installed on wood sleepers with pieces of roofing used as straps. This is not complying with code wind loading. Equipment should be installed on structural curbs flashed into the roof or rated equipment racks with pipe legs that can be flashed into roofing system. Design/Negotiation and Construction Observation Fee $3,000.00. Construction Cost $100,000. E& O Item 1 and 5.

( Emphasis added.) The description of each defect ended similarly with a cursory rounded statement of the construction cost.

[¶3] In late August 2012, IBTS learned that Michael Bailey had suddenly left his job, moved out town, and could not be located or further made available as an expert on this case. At a hearing on September 12, 2012, the trial court orally continued the case without a new trial date in order for IBTS to find a new engineering expert. IBTS hired Ashton Avegno, a retired principal of Kyle Associates and a structural engineer with more than forty years of experience to replace Bailey. Avegno provided his report on November 2, 2012. In addition to largely agreeing with Bailey's original report, Avegno also expressed concern that the foundation pilings " as designed" were overloaded by as much as " 2.82 times its safe capacity and the as built piling would be loaded 2.16 times its capacity." He recommended that a " pile load test . . . be done at the site using the same size and length pile as the existing."

[¶4] Avegno was unwilling, however, to provided exact itemized cost estimates for the items of engineering defects he identified. He estimated a total repair budget for all items between " $1,660,000 and $4,020,000." He openly stated that the " costs provided here are my best estimates" but that he was " not a qualified estimator or contractor and therefore cannot be liable for the accuracy of these numbers. If more accurate numbers are needed then a licensed contractor or cost estimator should be engaged to provide them."

[¶5] Also on November 2, 2012, IBTS filed a Motion for Trial Setting and Scheduling Order, proposing a trial date of April 15, 2013, with deadlines for the plaintiff's experts to be designated by November 8, 2012, and the defendant's experts to be designated by December 7, 2012. IBTS informed the court that IBTS had been unable to depose any of the defendants' witnesses, including any of the defendants, and that the new scheduling order should be issued to allow IBTS to conduct depositions and to seasonably supplement its expert reports. The defendants objected to the proposed new scheduling order, arguing that the deadline for expert designations had passed and that Avegno should not be allowed to offer any new opinions, including his opinion that the foundation piles were overloaded.[2]

Page 500

[¶6] The court heard IBTS's motion for a new scheduling order on December 21, 2012. It granted IBTS's motion to depose the defendants but limited IBTS's right to supplement its expert reports based only information learned in the depositions and excluding new information learned from the test piles recommended by Avegno. The court reset trial for August 12, 2013, and established new deadlines for completion of discovery by April 12, 2013, with dispositive or Daubert[3] motions to be filed by May 13, 2013.

[¶7] IBTS filed a motion for clarification or reconsideration on January 11, 2013, arguing that the defendants would not be prejudiced by a more extensive expert supplementation given the new trial date, new discovery deadlines, and the fact that the defendants had been on notice of potential structural defects in the foundation piles since November 2, 2012. The court denied IBTS's motion for reconsideration (among other motions) after a hearing on March 14, 2013. IBTS had supplemented its motion for reconsideration, pointing out that, in the February 2012 deposition of defendant Carubba Engineering, Carubba had acknowledged that it had not used any pile load tests or geotechnical reports to verify load capacity or soil conditions at the construction site. Rather, despite having written on three separate occasions to the project architect that a pile load test was needed, he ultimately used a safe allowable load for his calculations " from my experience as a design engineer in these types of soils." IBTS argued that, since the court's previous order permitted supplementation of the expert report with evidence obtained from the depositions, opinions on the piles and the results of the pile tests should appropriately be allowed.[4]

[¶8] The court held a hearing on July 30, 2013, to hear eighteen separate in limine motions, including Daubert and dispositive motions. Included were defense motions to exclude the expert testimony of Hayes and Avegno under Mississippi Rule of Evidence 702. The defendants asserted that Hayes had failed to offer detailed support or explanation for his opinion on construction repair costs, and that Avegno was, by his own admission, not qualified to provide any opinion on costs. IBTS argued that the court should defer ruling on the reliability of the experts' costs estimates until trial, when it would have the benefit of their testimony.

[¶9] The court granted the motion to exclude Avegno from testifying as to monetary damages, finding that he was not qualified by his own admission and that he had declined to permit supplementation of his report to provide the basis for his cost estimates.

[¶10] However, the Court denied the motion to exclude Hayes's damages testimony, and at the request of the defense continued trial and ordered Hayes to supplement his report. The court denied both parties' motions for summary ...


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