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Thompson Tree and Spraying Service, Inc. v. City of McComb

Court of Appeals of Mississippi

November 20, 2018

THOMPSON TREE AND SPRAYING SERVICE, INC. D/B/A LIVE OAK CONSTRUCTION APPELLANT
v.
CITY OF MCCOMB, MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/13/2017

          PIKE 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

          BEFORE LEE, C.J., FAIR AND WILSON, JJ.

          FAIR, J.

         ¶1. 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.

         FACTS

         ¶2. Following the statutory process for bidding requirements, [1] the 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.

         ¶3. 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, [2] (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 contract price.

         ¶4. 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.

         DISCUSSION

         ¶5. 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 delay.

         ¶6. "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 ...


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