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Prestress Services Industries of TN, LLC v. W. G. Yates & Sons Construction Co.

United States District Court, N.D. Mississippi, Oxford Division

December 27, 2017

PRESTRESS SERVICES INDUSTRIES OF TN, LLC PLAINTIFF
v.
W. G. YATES & SONS CONSTRUCTION COMPANY; OLE MISS ATHLETICS FOUNDATION; AECOM DESIGN, A PROFESSIONAL CORPORATION; AND HOCH ASSOCIATES P.C. DEFENDANTS HOCH ASSOCIATES P.C. THIRD PARTY PLAINTIFF
v.
NANGIA ENGINEERING OF TEXAS, LTD. THIRD PARTY DEFENDANT

          ORDER

          Michael P. Mills Judge.

         This cause comes before the court on its own motion, setting a hearing for January 29-30, 2018, at which it will give the parties an opportunity to submit arguments regarding any unresolved issues in this case. In reviewing the current status of this case, it has become apparent that there remain an unusually large number of unsettled issues between the parties, some of which appear to have only recently been recognized as matters in dispute. This seems to be partly the result of misunderstandings between the parties, and it also appears that, in the course of making numerous attempts to settle this case, its actual litigation has suffered. In entering the present order, this court is not attempting to prejudge these remaining issues, but it will make some observations on them, in order to hopefully streamline the presentation of arguments and proof at the hearing.

         1. Status of the breach of contract claim assigned by PSI to Hoch

         Yates has filed a motion in limine seeking a ruling clarifying that this court's prior dismissal of the design defect claims against Hoch on the minimum clearance issue does not include PSI's assigned breach of contract claim against Hoch. In seeking to recover against Hoch for the minimum clearance design issue, Yates has relied on two claims: 1) that Hoch committed its own acts of negligent design vis a vis the minimum clearance design issue and 2) that Hoch failed to warn of AECOM's negligence in this regard. This court previously granted Hoch's motion for summary judgment with regard to the first allegation, finding that Yates' complaint failed to state a design defect claim against Hoch on the minimum clearance issue. In its motion in limine, Yates has requested that this court clarify that its ruling did not apply to the breach of contract claim originally asserted by PSI against Hoch, which has since been assigned to Yates.

         In considering this motion, this court's first impression is that it relies upon arguments which Yates did not submit initially to this court. In its prior order, this court addressed the pleading arguments which Yates actually made to it, writing that:

In its brief, Yates also cites a portion of PSI's complaint detailing its claim against Hoch, which have been assigned to Yates. However, that portion of the complaint merely alleges that:
125. Hoch owed PSI a duty of care with respect to Hoch's engineering work for the Project.
126. Hoch breached that duty by, among other things, negligently performing engineering and design work such that, among other things, the design for the Project did not comply with the applicable seismic code.
127. As a direct and proximate result of Hoch's negligent breaches of the duty of care it owed to PSI, PSI has incurred damages and demands judgment in an amount in excess of $75, 000, plus pre-and post-judgment interest, costs, reasonable attorney's fees, and any other relief this Court deems just.
It is thus plain that paragraph 126 makes reference to design errors made by Hoch with regard to the seismic code issue, and, as noted previously, defendant does not appear to dispute that it made errors in that regard (though it does deny that these errors delayed the project).

[Slip op. at 11-12].

         Thus, in its prior briefing, Yates relied upon paragraphs 125-127 of PSI's complaint, and those were the paragraphs which this court addressed in its order. In its motion in limine, however, Yates cites different portions of PSI's complaint, namely paragraphs 110-112, which state as follows:

In its Amended Complaint [Doc. # 28] PSI alleged against Hoch under COUNT FOUR - BREACH OF CONTRACT the following:
110. PSI restates the preceding allegations as if fully rewritten herein.
111. PSI fully performed its obligations under the PSI-Hoch Contract.
112. Hoch breached the PSI-Hoch Contract by, among other things, failing to meet the standard of care with respect to its design work.

         [Motion in limine at 3]. In the court's view, it would have been preferable for Yates to cite this portion of PSI's complaint initially, if it believes ...


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