Broadway Inn Express, LLC v. Advanced Construction Technologies
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-00069-COA
BROADWAY INN EXPRESS, LLC AND
MAHAMMAD MOEINI
APPELLANTS
v.
ADVANCED CONSTRUCTION
TECHNOLOGIES LIMITED
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
12/15/2008
HON. JERRY O. TERRY, SR.
HARRISON COUNTY CIRCUIT COURT
GEORGE W. HEALY IV
CASSIDY LEE ANDERSON
RODERICK MARK ALEXANDER, JR.
JONATHAN PAUL DYAL
CIVIL - CONTRACT
FOUND DEFENDANT IN BREACH OF
CONTRACT; DAMAGES AWARDED
AFFIRMED: 02/23/2010
BEFORE MYERS, P.J., GRIFFIS AND CARLTON, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Advanced Construction Technologies Limited (ACT) brought suit against Broadway
Inn Express, LLC, and Mohammad Moeini, its operator and owner. ACT alleged that
Moeini had failed to pay approximately $37,700 due on a construction contract. Moeini
counterclaimed, alleging that ACT had damaged his property and had produced incomplete,
untimely, and poor quality work. Following a bench trial, the circuit court awarded ACT
damages in the amount of $37,667.51, plus interest and attorneys’ fees. Moeini appeals.
FACTS
¶2.
Broadway Inn Express operated a hotel of the same name in Biloxi, Mississippi. On
August 29, 2005, Broadway Inn was severely damaged by Hurricane Katrina, including the
complete loss of two of its three hotel structures. The surviving structure was damaged when
it was inundated with approximately three feet of water. The hotel building also lost
approximately eighty percent of its roof.
¶3.
In late January 2006, James Davis of ACT submitted a proposal for repairs to be
performed on the surviving structure. Based upon the proposals submitted in January 2006,
the parties entered into two contracts on February 10, 2006. One of the contracts pertained
to the exterior of the hotel, the other to the interior. The tentative aggregate price of the two
contracts totaled $200,000.1 On March 6, 2006, the parties entered into another contract
which provided a total contract price of $193,000. This contract contained the same terms
as the prior contract, but the $7,000 difference in contract price represented materials already
purchased by Moeini. Work under the contract began in February 2006 and was concluded
by June 2006.
¶4.
On November 9, 2006, ACT filed suit, alleging that Moeini had failed to completely
satisfy ACT’s initial invoices, and had entirely failed to pay the final invoice. In total, ACT
1
The contracts were “unit price,” meaning that the final amount due would be based
on work actually completed and materials actually purchased. Estimates of the unit costs of
labor and materials were attached to the contracts. Furthermore, the parties agreed that labor
or materials could be added or subtracted from the contract by subsequent agreement.
2
alleged that Moeini had paid only $160,000 of the final amount due under the final contract,
approximately $197,000.2 Moeini counterclaimed, arguing that ACT breached the contract
and caused him damages by failing to complete the repairs in a satisfactory manner. The trial
court ruled in ACT’s favor, and this appeal followed.
STANDARD OF REVIEW
¶5.
An appellate court affords a circuit court judge sitting without a jury the same
deference as a chancellor. City of Jackson v. Perry, 764 So. 2d 373, 376 (¶9) (Miss. 2000)
(citing Puckett v. Stuckey, 633 So. 2d 978, 982 (Miss. 1993)). That is, after reviewing the
entire record, we will affirm if the judge’s findings of fact are supported by substantial,
credible evidence and are not manifestly wrong or clearly erroneous. Id. Errors of law are
reviewed de novo. Id. (citing Cooper v. Crabb, 587 So. 2d 236, 239 (Miss. 1991)).
DISCUSSION
1. Testimony Regarding an Additional $10,000 Payment
¶6.
ACT alleged that it submitted a total of four invoices to Moeini for the costs of the
repairs. The first invoice was for $45,670.10, of which Moeini paid $45,000. The second
invoice was for $53,706.39, of which Moeini paid $50,000. The third invoice was for
$65,451.81, of which Moeini paid $65,000. A final invoice, for the balance of the contract,
was not paid.3
2
The final invoice reflected numerous unit adjustments to the original contract price.
3
The fourth invoice was for $32,667.51. It stated that $165,000 had been paid to
date. At trial, however, Davis, the owner of ACT, testified that only $160,000 had been
3
¶7.
At trial, Moeini acknowledged that he had not paid the full balance of the first three
invoices. He also admitted that he had not paid the final invoice. Moeini alleged, however,
that he had made an additional $10,000 payment, and that he had therefore paid $170,000 on
the invoices. The trial court disagreed, finding that only $160,000 had been paid.
¶8.
On appeal, Moeini argues that his testimony regarding the additional payment was
uncontradicted, and that the trial court therefore erred in disregarding it in computing the
amount paid under the contract. Moeini cites to our decision in Day v. Ocean Springs
Hospital System, 923 So. 2d 246 (Miss. Ct. App. 2006). There, we stated:
In Hulitt[v. Jones, 220 Miss. 827, 72 So. 2d 204 (1954)], the supreme court
stated that “the testimony of a witness which is not contradicted, either by
direct evidence or by circumstances, must be taken as true.” Id. at 833, 72 So.
2d at 207. The court stated that a chancellor or a jury does not have an
arbitrary right to disregard undisputed testimony that is not inherently
improbable, incredible, or unreasonable. Id. Such testimony must be accepted
as true even if the witness is a party or is interested in the case. A & F Prop.,
LLC v. Lake Caroline, Inc., 775 So. 2d 1276, 1282 (¶17) (Miss. Ct. App. 2000)
(quoting Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 635, 53 So. 2d 69, 75
(1951)).
Id. at 250 (¶15). Moeini also cites to the testimony of Davis, who stated on crossexamination by Moeini’s attorney that he “[couldn’t] remember” receiving a $10,000 check
from Moeini on a certain date.
¶9.
In reviewing the record, we do not find Moeini’s testimony was uncontroverted.
While it is true that Davis did not expressly deny receiving a $10,000 check, he did testify
paid, and that the invoice reflected a computational error. The trial court agreed and
expressly found that $160,000 had been paid under the contract.
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that ACT had only been paid a total of $160,000 – not $170,000, as Moeini alleges – on the
contract. This issue is without merit.
2. Exclusion from Evidence of a $10,000 Cancelled Check
¶10.
At trial, Moeini attempted to introduce into evidence a $10,000 cancelled check that
he alleged documented an additional payment on the contract balance. The trial court
excluded the check because Moeini had failed to produce it in response to ACT’s discovery
requests.
¶11.
On appeal, Moeini argues that the trial court erred in excluding the check, but he cites
no authority in support of this proposition. Failure to cite relevant authority to support a
party’s arguments precludes this Court from considering an issue. Ruff v. Estate of Ruff, 989
So. 2d 366, 372 (¶24) (Miss. 2008). This issue is therefore procedurally barred from our
review.
3. Specific Findings of Fact Regarding Moeini’s Counterclaims
¶12.
At trial, Moeini counterclaimed, alleging that he suffered damages as a result of
ACT’s poor work under the contract.
Specifically, he alleged that ACT produced
“unworkmanlike drywall finishing on the walls and ceilings,” “shoddy painting which did
not adequately cover the painted surface,” “doors which did not shut flush with door jams,”
and that ACT had not properly installed toilets. He also alleged that ACT “broke several
mirrors and marble counters for which they only reimbursed Mr. Moeini for approximately
fifteen to twenty percent of the replacement costs,” and that ACT cut holes in marble
countertops that were too large for the tissue dispensers that were intended to be placed in
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them. On appeal, Moeini alleges that the trial court failed to address his counterclaims in its
judgment.
¶13.
Mississippi Rule of Civil Procedure 52(a) states that in bench trials, “the court may,
and shall upon the request of any party to the suit or when required by these rules, find the
facts specially and state separately its conclusions of law thereon and judgment shall be
entered accordingly.” In Tricon Metals & Services, Inc. v. Topp, 516 So. 2d 236, 238 (Miss.
1987), the supreme court stated:
Ordinarily this Court will not reverse findings of fact made by a trial court
sitting without a jury where those findings are supported by substantial
credible evidence in the record. This is as true of ultimate facts as of
evidentiary facts.
Put another way, this Court ought and generally will affirm a trial court sitting
without a jury on a question of fact unless, based upon substantial evidence,
the court be manifestly wrong.
But what do we do when no findings of fact have been made? One vehicle
developed over the years is that we imply findings of fact, for we are required
by our prior decisions and by sound institutional considerations to proceed on
the assumption that the chancellor resolved all such fact issues in favor of the
appellee. Further, when there are no specific findings of fact, we sometimes
assume the trial judge made determinations of fact sufficient to support the
judgment.
(Citations and internal quotations omitted). In a case that “is hotly contested and the facts
greatly in dispute and where there is any complexity involved therein,” an appellate court
may find the trial court’s failure to issue findings of fact and conclusions of law is an abuse
of discretion. Id. at 239. However, where the case is not “terribly complex from a factual
standpoint” and the final judgment gives this court an adequate record to review, we will not
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find an abuse of discretion. Pilgrim Rest Missionary Baptist Church ex rel. Bd. of Deacons
v. Wallace, 835 So. 2d 67, 74-75 (¶18) (Miss. 2003).
¶14.
In reviewing the record, we do not find an abuse of discretion in the trial court’s
failure to make findings of fact regarding its denial of Moeini’s counterclaims. This was not
a complicated case. Only one witness testified for each side at trial, and Moeini’s allegations
were unspecific and uncorroborated. They were also affirmatively denied by Davis. Moeini
acknowledged that he had never made a written demand or complaint regarding the work
prior to filing his counterclaim. He also offered no documentation regarding the cost of
repairs – if any were undertaken – or an estimate of the lost value of his property.
Additionally, it was uncontroverted that Broadway Inn reopened and began renting all of its
rooms immediately after ACT completed its work on June 18, 2006. In short, we find that
the chancellor’s findings were supported by substantial evidence and that the testimony
regarding the counterclaim was not so complex as to require specific findings of fact. This
issue is without merit.
4. Inclusion in Judgment of Furniture Installation Costs
¶15.
The trial court included a $4,992.69 charge for the installation of hotel furniture in its
judgment against Moeini. At trial, Moeini acknowledged that he had instructed ACT to
install the furniture and that this work was not included in calculating the original contract
price. ACT produced an itemized invoice detailing its charges for labor and materials
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relating to the furniture installation.4
¶16.
On appeal, Moeini argues that the damages assessed by the trial court were “nothing
other than speculation or conjecture” because ACT offered an insufficient explanation of
how it determined the charges assessed on the invoice. He also appears to argue that ACT
may not recover because he does not agree with the charges assessed.
¶17.
We find this issue procedurally barred because Moeini has again failed to cite
authority in support of his arguments. Ruff, 989 So. 2d at 372 (¶24).
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
KING, C.J., LEE, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON
AND MAXWELL, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION.
4
For example, the invoice assesses charges of $12.50 each for the assembly of
twenty-seven bed frames and $20 each for the installation of twenty-four mirrors.
8
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