THOMPSON TREE AND SPRAYING SERVICE, INC. D/B/A LIVE OAK CONSTRUCTION APPELLANT
CITY OF MCCOMB, MISSISSIPPI APPELLEE
OF JUDGMENT: 04/13/2017
COUNTY CIRCUIT COURT HON. DAVID H. STRONG JR. TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: CLYDE X. COPELAND MATTHEW WILLIAM
VANDERLOO CORY TODD WILSON
ATTORNEY FOR APPELLEE: WAYNE DOWDY
LEE, C.J., FAIR AND WILSON, JJ.
In this contract case, Thompson Tree and Spraying Service
Inc., doing business as Live Oak Construction ("Live
Oak"), appeals a judgment rendered by the Pike County
Circuit Court in favor of Live Oak on some claims but not
all. The trial court awarded Live Oak a total of $7, 016.75
against the City of McComb. Live Oak now appeals.
Following the statutory process for bidding requirements,
City advertised for bids to construct three buildings at the
McComb Sports Park, a center for baseball and softball fields
for the City. Live Oak was the lowest bidder at $252, 000 and
was awarded the contract. Steve Cox, a McComb architect,
drafted the plans for the City and supervised the work
through completion. Cox was named as a defendant but was
dismissed from the lawsuit on motion for summary judgment.
On completion of the project by Live Oak, the City paid the
contract price, along with an additional sum of $1, 941.60
reflected in a written construction contract change,
(change order) agreed upon by Live Oak, Cox, and the City.
The contract called for completion of construction 120 days
after the "Notice to Proceed"-given by Cox on
January 20, 2014- on penalty of $250 per day in liquidated
damages if it took longer. Substantial completion occurred on
September 19, 2014. The term of construction lasted for eight
months rather than four as outlined in the contract. The City
did not seek liquidated damages. Live Oak submitted that the
City is to blame for the entire 120-day delay and sought
related damages in the amount of $135, 760.73 above the paid
After a bench trial, the trial court found for Live Oak on
some of the claimed contract breaches and awarded a judgment
against the City for $4, 876.75. Live Oak filed motions under
Mississippi Rules of Civil Procedure 52(b) and 59(e) to amend
the trial court's finding of facts and final judgment.
Subsequently, the order was amended, and a total judgment of
$7, 016.75 was awarded to Live Oak. On appeal, Live Oak
claims that the trial court committed manifest error in not
finding the City wholly liable for the breaches it asserted
caused the delay and argues that the evidence presented at
trial was unrebutted. Further, Live Oak argues the trial
court erred in awarding Live Oak an arbitrary amount of
damages for the City's liability. For the following
reasons, we affirm.
Live Oak contends that it is entitled to damages above the
contract price in light of the delay caused by the City. It
specifically highlights the costs and overhead associated
with the following: (1) lack of power to the job site; (2)
moving the press box from its original location; (3) extra
dirt work not originally agreed upon; (4) lintels that were
not specified on the architect's plan; and (5) overall
"The applicable standard of review will not permit that
the finding of the trier of fact be disturbed on appeal if
there is substantial supporting evidence even if under the
same proof we might have found otherwise. The finding of fact
may not be set aside unless manifestly wrong."
Bailey v. Worton, 752 So.2d 470, 474 (¶9)
(Miss. Ct. App. 1999). Where a circuit judge sits without a
jury, the deference given is that which is given to a
chancellor's findings. Sweet Home Water & Sewer
Ass'n v. Lexington Estates Ltd., 613 So.2d 864, 872
(Miss. 1993). "Findings of fact ...