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Miller v. Vicksburg Masonic Temple

Court of Appeals of Mississippi

August 13, 2019

LEWIS MILLER, JR. APPELLANT
v.
VICKSBURG MASONIC TEMPLE APPELLEE

          DATE OF JUDGMENT: 11/07/2017

          COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT TRIAL JUDGE: HON. M. JAMES CHANEY JR.

          ATTORNEY FOR APPELLANT: DAVID M. SESSUMS

          ATTORNEY FOR APPELLEE: FRANK G. VOLLOR

         EN BANC.

          BARNES, C.J.

         ¶1. In 2015, the Vicksburg Masonic Temple ("the Lodge") filed a complaint against Lewis Miller Jr., an adjacent landowner, seeking damages to repair and restore the lateral and subjacent support of its property. After a jury trial in Warren County Circuit Court, the Lodge was awarded $200, 000 in damages. Miller filed a motion for a judgment notwithstanding the verdict (JNOV) or alternatively for a new trial, which the trial court denied. Miller appeals the judgment, and finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. The Lodge owns 2.64 acres of property fronting Cain Ridge Road in Vicksburg, Mississippi. In 1997, Miller, owner of Riverside Construction Company, bought the property adjacent to the Lodge's property to use as fill dirt for his construction projects and, potentially, to develop the property for commercial use. After talking with James Price, the Lodge's president and a friend, Miller excavated a vertical cut up to the edge of the Lodge's property line and installed a drainage system, including a five-foot-wide drainage ditch, to take care of any water runoff from the Lodge's property. For safety reasons, he also installed fencing at the top of the ditch in accordance with the Lodge's request.

         ¶3. The drainage system and ditch worked well from 1997 until 2010, at which time erosion occurred to the point that certain portions of the ditch failed, and excess water flowed over the top of the ditch. The Lodge eventually moved the fence because it was hanging over the eroded soil, posing a safety issue for its patrons. After discussions with Lodge members, Miller put some plastic sheeting down, slowing the progression of the erosion. In 2013 or 2014, Miller excavated a swale on the Lodge's property to direct the water back to Cain Ridge Road. Since that time, no further erosion has taken place.

         ¶4. On October 16, 2015, the Lodge brought a suit against Miller, alleging he was strictly liable for the costs of restoring its property to substantially the same condition before the lateral and subjacent support was removed. The Lodge requested damages in the amount of $497, 366.58-"the cost of repairing and restoring the lateral and subjacent support to [the Lodge's] property"-as well as attorney's fees and court costs.

         ¶5. A jury trial was held October 31-November 3, 2017. Price testified that after Miller contacted him about excavating the property, he unofficially consulted with an attorney, who told him Miller had an obligation not to damage the Lodge's property. Because Miller was concerned about the excess water runoff, Price said he gave Miller permission to rework the Lodge's drainage system. He said that Miller "built [the ditch] and maintained it" and never made any representation that it was the Lodge's responsibility to maintain the ditch. Miller never charged the Lodge for any of the maintenance that he or his employees had performed over the years.

         ¶6. Johnny Lowrey, the Lodge's current president, said he noticed that the ditch was failing in 2011. Because he has a background in construction, Lowrey was asked to attend a Lodge meeting on April 16, 2013, to discuss the issue with Miller. He testified that, at that meeting, Miller presented a plan to build a retaining wall. In 2014, Lowrey and Miller had several discussions and decided that the Lodge's downspouts needed to be redirected; so Lowrey closed up the downspouts that Miller had installed.

         ¶7. Jeffrey Broom, a local contractor, testified that he provided the Lodge a bid for a retaining wall in the amount of $533, 528.98.[1]

         ¶8. Jimmy Fairchilds Jr., who recorded the minutes from the Lodge's April 16, 2013 meeting, corroborated Lowrey's testimony that Miller proposed building a retaining wall. Fairchilds was responsible for lawn maintenance at the Lodge for several years and said that any leaves or debris in the ditch were from trees on Miller's property and that the ditch was not the Lodge's responsibility.

         ¶9. At the close of the Lodge's case-in-chief, Miller moved for a directed verdict, which the trial court denied. David Dennis, a geotechnical engineer testifying for Miller as an expert witness, stated that the soil at the Lodge's property, loess soil, "is characteristically very stable on a near-vertical slope." But he also noted that loess soil was "very erodible" and opined: "The primary item which caused the failure of th[e] ditch is the waterfall effect and the clogging of the ditch which created the waterfall effect, which is a maintenance issue. It's a maintenance issue." Although Dennis acknowledged that he was not testifying as to who had responsibility for the maintenance of the ditch, he did confirm that Miller or one of Miller's employees had cleaned out the ditch in 2010.

         ¶10. In his written report, the Lodge's expert witness, James May, concurred with Dennis, stating that "[i]t [was] the maintenance of the drainage structure that [was] at the heart of the problem." May contended that "[i]t would have been better if the concrete drainage structure would not have been installed than to install it and not maintain it." Although he acknowledged that loess soil would stand a vertical cut for years, May noted that if there was a concentrated flow of water on the loess soil, "you've got a problem."

         ¶11. Miller said that there were drainage issues with the Lodge's property before he began excavating, claiming Price told him the area behind the Lodge's building stayed wet and asked Miller if he could do anything about the issue. Thus, Miller averred that he built the ditch to help the Lodge handle its water-drainage issues; he did not need the drainage ditch. Miller did acknowledge that he paid for the cost of constructing the ditch ($30, 000 to $50, 000). He contended that he only warranted the work for one year; after that, it was the Lodge's responsibility to maintain the ditch. However, Miller's employee, Wendell Moore, testified that he had gone to the property in 2004 to repair some cracks in the ditch. Miller also had him to go to the property in 2013 to discuss the water drainage issue with Lowrey.

         ¶12. On rebuttal, Price admitted there was a "wet spot" in the back of the Lodge's property but denied that he asked Miller to remedy the issue. Price reiterated that the ditch belonged to Miller, not the Lodge.

         ¶13. The jury awarded the Lodge a verdict of $200, 000. Miller filed a motion for JNOV or alternatively for a new trial, which the trial court denied. Appealing the verdict, Miller contends that the Lodge failed to present evidence that he breached any duty and failed to prove a proper measure of damages.

         DISCUSSION

         ¶14. Miller argues that he did not breach a duty to provide lateral support to the Lodge's property and that the Lodge failed to prove he was liable for maintenance of the ditch. He further claims that the only evidence of damages presented by the Lodge was the cost to build a retaining wall but the Lodge failed to prove that a retaining wall was necessary. Thus, he asserts that there was insufficient evidence to support the jury's verdict.

         ¶15. "The standard of review for denial of a [JNOV] and a directed verdict are identical." Hopkins v. Schaeffer, 840 So.2d 737, 738 (¶6) (Miss. Ct. App. 2003). Viewing the evidence in the light most favorable to the nonmovant, if the verdict can be supported by the evidence, then "neither a directed verdict nor a JNOV is appropriate." Loyacono v. Travelers Ins. Co., 163 So.3d 932, 935 (¶9) (Miss. 2014). Such motions are reviewed de novo. Id.

         A. Breach of Duty/Negligence

         ¶16. In its complaint, the Lodge asserted that due to Miller's removal of the lateral and subjacent support of its property, Miller was strictly liable for the damages the Lodge suffered and "the costs of restoring the property to substantially the same condition." In Pecanty v. Mississippi Southern ...


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