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M & R Builders, LLC v. Williams Equipment And Supply Company, Inc.

Court of Appeals of Mississippi

August 13, 2019

M & R BUILDERS, LLC APPELLANT
v.
WILLIAMS EQUIPMENT AND SUPPLY COMPANY, INC. AND TRIANGLE CONSTRUCTION COMPANY, INC.APPELLEES

          DATE OF JUDGMENT: 02/20/2018

          COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT TRIAL JUDGE: HON. DENISE OWENS

          ATTORNEYS FOR APPELLANT: BRIAN CRAIG KIMBALL KATHLEEN ELIZABETH CARRINGTON

          ATTORNEYS FOR APPELLEES: M. REED MARTZ MACY DERALD HANSON

          BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

          CARLTON, P.J.

         ¶1. Williams Equipment and Supply Company Inc. filed a complaint in the Hinds County Chancery Court against M&R Builders LLC and Triangle Construction Company Inc. seeking to recover rental payments for metal concrete forms used in foundation work on a construction project. M&R Builders and Triangle Construction then filed cross-claims against each other for breach of contract alleging that the terms of the subcontract agreements regarding foundation work meant that the other party was responsible for paying the rental payments owed to Williams Equipment.

         ¶2. After a trial on the matter, the chancellor found that according to the subcontract agreements, M&R Builders was responsible for paying Williams Equipment the rental costs of the metal concrete forms. Accordingly, the chancellor ordered M&R Builders to pay Williams Equipment $50, 905.89 in damages and attorney's fees. The chancellor also found that M&R Builders was responsible for the attorney's fees incurred by Triangle Construction in defending the action and awarded Triangle Construction over $15, 000 in damages and attorney's fees.

         ¶3. M&R Builders now appeals and asserts the following assignments of error: (1) the chancellor did not have subject matter jurisdiction; (2) the chancellor erred by implicitly finding that Williams Equipment proved the essential elements of its claims against M&R Builders and Triangle Construction; (3) the chancellor erred in finding that M&R Builders was responsible for the rental costs of the metal concrete forms; and (4) the chancellor erred in awarding damages and attorney's fees to Williams Equipment and damages and attorney's fees to Triangle Construction.

         ¶4. After our review, we affirm the chancellor's award of damages to Williams Equipment and the chancellor's award of both damages and attorney's fees to Triangle Construction. However, we reverse and render the chancellor's award of attorney's fees to Williams Equipment.

         FACTS

         ¶5. The case before us concerns the payment of the rental costs for metal concrete forms used in foundation work for two construction projects. Triangle Construction is a general contracting company in Jackson, Mississippi. Relevant to this litigation, Triangle Construction served as the general contractor for the construction of three multi-family apartment complexes in Jackson: the Taylor Court Project, the Downing Court Project, and the Oxford Court Project.[1] Bob King is the president of Triangle Construction.

         ¶6. After substantial rainfall in the Jackson area created delays for Triangle Construction, it sought the subcontracting services of M&R Builders in order to ensure timely completion of the projects. Relevant to this case, M&R Builders bid the foundation work for the three apartment complexes. Jerry and Jackie McBride own M&R Builders. Their son, Johnny McBride, works as a project manager with the company.

         ¶7. Williams Equipment, a company that rents and sells equipment and materials for construction projects, rented out the metal concrete forms used by M&R Builders in performing the foundation work.

         ¶8. The record reflects that the initial engineering plans for the Oxford Court Project and the Downing Court Project provided for stem walls (also known as retainer walls). The structural engineer instructed that metal concrete forms were required for the foundation work. As a result, M&R Builders informed Triangle Construction that they needed to obtain metal concrete forms for the foundation work. According to M&R Builders and Williams Equipment, Triangle Construction authorized M&R Builders to order the forms and that Triangle would pay for them.

         ¶9. In late July 2015, Bob King of Triangle Construction met with Jerry McBride and Johnny McBride of M&R Builders and Laird McMahen, a representative of Williams Equipment. McMahen testified that a week prior to this meeting, he called King, who assured McMahen that "he would be renting all the forms and paying for all the forms [and that] whatever Johnny needed to order, to release it to him." McMahen testified that at that time, Bob King gave McMahen his American Express credit card number.

         ¶10. McMahen testified that at the in-person meeting, he informed King that the concrete forms are rented on a 28-day cycle and that King would be charged on more than one occasion for the rentals. Johnny McBride and Jerry McBride both testified that at that same meeting, King instructed M&R Builders that he wanted parallel production (simultaneous construction on all slabs) in order to speed up the work on the projects. Johnny McBride informed King that parallel construction would increase the cost for the concrete forms.

         ¶11. On July 30, 2015, Williams Equipment charged Triangle Construction's American Express account in the amount of $4, 513.39 for the rental of the first set of metal concrete forms. McMahen testified that Triangle Construction did not object to the charge. McMahen admitted that Williams Equipment did not have a signed rental contract or note of security from Triangle Construction; rather, he had "a man's word and his credit card."

         ¶12. In August 2015, the two subcontract agreements between Triangle Construction and M&R Builders for the work on the Oxford Court Project and the Downing Court Projects were finalized. These two subcontract agreements are nearly identical to one other.

         ¶13. M&R Builders submitted into evidence the original draft of the Oxford Court subcontract agreement. This original draft contains handwritten changes made by Jerry McBride from M&R Construction. The provisions (as well as the handwritten changes) in this original draft were also initialed by Jerry McBride. These changes were then incorporated into both the Oxford Court and Downing Court subcontract agreements, and the revised versions of both subcontract agreements were submitted into evidence by Triangle Construction.

         ¶14. In the revised versions of the subcontract agreements, the parties agreed that the "Scope of Work" for the slabs under the two contracts would be "Form, Pour, and Finish - Labor Only; Install Rebar - Labor Only." Under Article 4, (Progress and Completion), the original draft of the subcontract agreement for the Oxford Court Project provided that M&R Builders would "keep and maintain on the project a sufficient number of properly qualified workmen and a sufficient quantity of materials, equipment, and supplies to efficiently perform the work." However, the terms "materials" and "supplies" were marked out with Jerry McBride's initials next to these markings. These terms ("materials" and "supplies") were then omitted from the revised subcontract agreements, and the revised sentence read as follows: M&R Builders "shall keep and maintain on the project a sufficient number of properly qualified workmen and a sufficient quantity of equipment to efficiently perform the work." It is important to note that the revised subcontract agreements submitted into evidence by Triangle Construction do not contain any of these handwritten changes or initials, but these agreements do incorporate the handwritten changes.

         ¶15. Relevant to payment for the metal concrete forms, the final versions of the subcontract agreements state as follow:

1. PERFORMANCE:
[M&R Builders] agrees to perform all of the work specified and actually required, to furnish all labor, materials, equipment, supplies and other items for the work and to pay promptly for all of such, and to complete the work in strict compliance with the terms of the Prime Contract and to the satisfaction of, and in compliance with, the directions of Triangle Construction Co.
4. PROGRESS AND COMPLETION:
Unless herein otherwise specifically provided, [M&R Builders] shall commence work promptly or upon notice from [Triangle Construction]. [M&R Builders] shall, in any event, prosecute the work diligently and so as to avoid delaying the progress of [Triangle Construction] or other subcontractors on other portions of the project work. [M&R Builders] shall keep and maintain on the project a sufficient number of properly qualified workmen and a sufficient quantity of equipment to efficiently perform the work as required without delay. Should [M&R Builders] cause delay in the progress or completion of the project, [Triangle Construction] may recover from [M&R Builders] the damages resulting there from.
6. ADVANCES:
[Triangle Construction] may, but shall not be required to, advance sums to [M&R Builders] for the purpose of financing the work and may offset such against any subcontract earnings, including final retainage, without the consent of, and free of any claim of unauthorized prepayment by, any Surety or [M&R Builders]. [Triangle Construction] may, but shall not be required to, supply [M&R Builders] with labor, materials, equipment and supplies and other items acceptable to the Subcontractor in the performance of the work. If this occurs, Triangle [Construction] may recover the value or price therefore against [M&R Builders] and [M&R Builders's] surety, if any, without being required to offset the same or any part thereof against the earnings of [M&R Builders].
24. ADDITIONAL PROVISIONS:
All documentation and pay requests to be processed using Procore.
INCLUSIONS:
Labor
Equipment
Insurance
Licenses
Tax
EXCLUSIONS:
Materials
Steel
Concrete
Concrete Pump Truck

         (Emphasis added).

         ¶16. McMahen testified that when Williams Equipment was ready to charge Triangle Construction for the additional metal concrete forms, he attempted to contact King on multiple occasions without success. McMahen explained that: "Before I made the final charge of $31, 922.79 to Triangle Construction, I tried calling Mr. King and setting up an appointment to see if he had any questions about this. I went by his office. I called him. I went by his office. I called him. I went by his office. Mr. King was avoiding me." McMahen testified that he grew concerned. On November 24, 2015, Williams Equipment attempted to charge Triangle Construction's American Express account for the remaining amount due for the rental of the metal concrete forms: $31, 525.31. Triangle Construction successfully disputed the charge with American Express.

         ¶17. On May 19, 2016, Williams Equipment filed a complaint in Hinds County Chancery Court alleging that Triangle Construction and M&R Builders were "liable under contract, under the laws of agency, under a theory of quantum meruit, [and] under a theory of unjust unrichment" to pay Williams Equipment the amount of $31, 922.79 for the metal concrete forms.[2]

         ¶18. In July 2016, Triangle Construction and M&R Builders filed their answers to Williams Equipment's complaint. (Triangle Construction also filed a counterclaim against Williams Equipment, which was eventually dismissed with prejudice.)

         ¶19. Triangle Construction and M&R Builders also filed cross-claims against each other for breach of contract. In the cross-claims, each party alleged that the terms of these two subcontract agreements meant that the other party was responsible for paying Williams Equipment for the metal concrete forms. M&R Builders asserted that it was responsible for "labor only" with respect to the concrete work and that Triangle Construction was responsible for all other costs.

         ¶20. On August 16, 2016, M&R Builders filed a motion to transfer the case to the Hinds County Circuit Court. In its motion, M&R Builders asserted that "[t]he [c]omplaint makes clear that the nature of Williams [Equipment's] claim is contractual and that the primary relief sought is damages." M&R Builders argued that such matter should be heard by a court of law and not a court of equity. Triangle Construction joined this motion.

         ¶21. At a hearing held October 21, 2016, the parties agreed that no express contract, i.e., no written or oral contract, existed between Williams Equipment and M&R Builders or Triangle Construction. Williams Equipment conceded that because there was no express contract pertaining to who was responsible for payment of the rental costs, its claim against M&R Builders and Triangle Construction was actually one for quantum meruit. The chancellor accordingly denied M&R Builders's motion to transfer based on this representation. The chancellor then ordered Williams Equipment to amend its complaint and withdraw the breach of contract claim.

         ¶22. During this same hearing, the chancellor determined that the subcontract agreements between M&R Builders and Triangle Construction were "ancillary determinations to the real claim" regarding which one of the parties owed Williams Equipment rental payments for the metal concrete forms. Triangle Construction acknowledged that two versions of the subcontract agreements were submitted into evidence-one that has terms crossed out and contains Jerry McBride's initials, and one that incorporates these changes-and asserted that "one of the questions that a jury will have to answer is which version of this contract is correct."

         ¶23. On January 24, 2017, the chancellor entered an order memorializing her bench ruling on M&R Builders's motion to transfer. Williams Equipment entered its first amended complaint and removed the breach of contract claim.

         ¶24. On March 20, 2017, M&R Builders filed a motion for summary judgment seeking dismissal of Williams Equipment's claims against it. The chancellor denied the motion.

         ¶25. A trial was held on Williams Equipment's claims and M&R Builders's and Triangle Construction's cross-claims on April 3, 2017 and June 12, 2017. The chancellor heard testimony from Laird McMahen and Mike Wainscott of Williams Equipment; Scott King and Bob King of Triangle Construction; and Johnny McBride and Jerry McBride of M&R Builders. We discuss this testimony at length in our discussion section below.

         ¶26. On August 18, 2017, the chancellor entered an order and opinion determining that M&R Builders was responsible to Williams Equipment for the cost of the metal concrete forms. The chancellor explained that Section 1 of the subcontract agreement between Triangle Construction and M&R Builders provided that M&R Builders agreed "to furnish all labor, materials, equipment, supplies, and other items for the work and to promptly pay for all of such." The chancellor stated that based on the evidence and testimony provided, the concrete forms in question constituted equipment. The chancellor held that the term "equipment," as well as who bears the responsibility for supplying the equipment, was unambiguous. The chancellor also determined that under Section 24 of the subcontract agreement, the term "equipment" was listed under the category of "inclusions," and therefore M&R Builders was responsible for supplying the equipment.

         ¶27. Regarding Triangle Construction's payment of $4, 513.39 for the rental of the first set of metal concrete forms, the chancellor found that Section 6 of the subcontract agreement provided that Triangle Construction

may, but shall not be required to, advance sums to [M&R Builders] for the purpose of financing the work and may offset such against any subcontract earnings, including final retainage, without the consent of, and free of any claim of unauthorized prepayment by, any Surety or [M&R Builders]. [Triangle Construction] may, but shall not be required to, supply [M&R Builders] with labor, materials, equipment and supplies and other items acceptable to [M&R Builders] in the performance of the work. If this occurs, Triangle [Construction] may recover the value or price therefore against [M&R Builders] and [M&R Builders's] surety, if any, without being required to offset the same or any part thereof against the earnings of [M&R Builders].

         ¶28. The chancellor therefore held that "the one-time $4500 payment via an American Express card authorized by Mr. King at the request of Jerry McBride to Williams Equipment . . . [was] an advance and, therefore, the payment is not to be construed as evidence that Triangle [Construction] assumed the responsibility of paying the cost of renting the concrete form equipment from Williams Equipment."

         ¶29. On October 6, 2017, the chancellor entered a second order and opinion finding that M&R Builders was responsible "for the payment of the attorney['s] fees incurred by Triangle [Construction] in this action." The chancellor referenced Section 8 of the subcontract agreement which provided as follows:

[M&R Builders] shall also be liable for all costs and expenses, including but not limited to attorneys fees [sic], incurred by [Triangle Construction] in prosecuting or defending any claim, suit[, ] or other action which arises out of or relates to the obligations assumed herein by [M&R Builders] or [M&R Builders's] (including its successors, agents and employees) actions, inactions or omissions in performing under this subcontract.

         ¶30. On January 30, 2018, the chancellor held a hearing on the issue of damages. On February 9, 2018, the chancellor entered her final judgment awarding Williams Equipment the amount of $31, 922.79 in damages for the principal amount due, as well as $18, 654.50 in attorney's fees and $328.60 in other fees and costs, for a total of $50, 905.89-despite M&R Builders's objection. On February 20, 2018, the ...


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