FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT HON. MICHAEL
COURT ATTORNEYS: MACY DERALD HANSON DENNIS L. HORN SHIRLEY
PAYNE W. BRADY KELLEMS JOSEPH PRESTON DURR ALFRED L. FELDER
ATTORNEY FOR APPELLANTS: MACY DERALD HANSON
ATTORNEYS FOR APPELLEES: DENNIS L. HORN W. BRADY KELLEMS
RANDOLPH, C.J., MAXWELL AND BEAM, JJ.
This appeal stems from a breach-of-contract and tort case in
the Pike County Circuit Court. John and Cindy Henderson filed
suit against Copper Ridge Homes ("Copper Ridge")
and First Bank regarding the construction of their new home
in Magnolia, Mississippi. However, the case quickly spiraled
into foreclosure proceedings upon the Hendersons'
defaulting on their loan with First Bank. The judge granted
First Bank's motion for judicial foreclosure.
After that, the Hendersons unsuccessfully moved multiple
times to amend their complaint to add wrongful foreclosure.
The judge granted Copper Ridge's and First Bank's
motions for summary judgment on the Hendersons' claims,
finding that the claims, which arose from the alleged faulty
construction of the house traveled with the title to the
property. Because the Hendersons no longer owned any interest
in the house and land, the judge found that they had lost
their right to seek damages.
On appeal, the Hendersons argue that the trial court erred by
granting First Bank a judicial foreclosure, by granting
Copper Ridge's and First Bank's motions for summary
judgment, and by denying their motions for leave to amend and
to add wrongful foreclosure to their complaint. Finding that
the trial court erred in granting Copper Ridge's and
First Bank's post-foreclosure motions for dismissal of
the Hendersons' claims, the Court affirms the grant of
judicial foreclosure, reverses the grant of summary judgment
to both parties, and remands the case to the trial court for
determination of the Hendersons' claims.
AND PROCEDURAL HISTORY
The Hendersons and Copper Ridge entered into a new-home
construction contract on May 9, 2014, in Magnolia,
Mississippi. Shortly thereafter, on May 24, 2014, the
Hendersons contracted with First Bank to finance the
construction of their new home.
The Hendersons' complaint stems from a dispute over the
price of the home and whether the contract was a fixed-price
or cost-plus contract. The Hendersons contend that the contract
was a fixed-price contract for $320, 000, but Copper Ridge
contends it was a cost-plus contract.
The construction contract contained a provision regarding the
changes to the scope of work: any changes to be made had to
be in writing. The record contains no evidence of any change
orders. Yet the Hendersons received two invoices from Copper
Ridge for overage charges in the amounts of $24, 386.07 and
The Hendersons further allege that First Bank, which
exercised sole and exclusive control over the disbursements,
had paid approximately $316, 000 to Copper Ridge, leaving
approximately $4, 000 to complete the house under the
fixed-price contract. John Henderson was asked to sign three
backdated draw disbursements for First Bank.
However, he refused to sign a final disbursement because the
house was not close to being completed. ¶8. Dissatisfied
with Copper Ridge and First Bank, the Hendersons filed their
complaint on April 30, 2015, alleging breach-of-contract and
tort claims against both parties. Shortly after filing their
complaint, the Hendersons did not make their payment on May
23, 2015, as required by the promissory note. First Bank
amended its initial answer on October 1, 2015, to include a
counterclaim for judicial foreclosure. In response, the
Hendersons filed a motion for leave to amend their complaint
so they could add wrongful foreclosure, fraud, and breach of
the duty of good faith and fair dealing to their complaint.
Because the foreclosure had not occurred at that time, the
judge disallowed adding wrongful foreclosure, but he allowed
the Hendersons to amend their complaint to include fraud and
breach of the duty of good faith and fair dealing. At the
summary-judgment hearing on judicial foreclosure, the trial
court found that the Hendersons had not produced sufficient
evidence to rebut the foreclosure; therefore, the judge
granted First Bank's motion for an order of judicial
Following the judicial foreclosure, the Hendersons sought
leave to amend their complaint to add wrongful foreclosure a
second time. Simultaneously, Copper Ridge and First Bank
sought to dismiss the Hendersons' claims altogether. The
trial court denied the Hendersons' motion for leave to
amend and granted Copper Ridge's and First Bank's
post-foreclosure summary-judgment motions, finding that the
claims arising out of the alleged faulty construction of the
house traveled with the title to the property. In view of the
foreclosure, the trial court found that because the
Hendersons no longer owned any interest in the house and
land, they had lost their right to seek damages.
A third time, the Hendersons moved for leave to amend their
complaint to add wrongful foreclosure, and the trial judge
denied the motion. Aggrieved, the Hendersons appeal the
orders entered by the trial court.