J. Criss Builder, Inc. v. William P. White
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00832-COA
J. CRISS BUILDER, INC. AND JANIE CRISS,
INDIVIDUALLY
APPELLANTS
v.
WILLIAM P. WHITE AND PATRICIA L. WHITE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEES
03/24/2008
HON. SAMAC S. RICHARDSON
MADISON COUNTY CIRCUIT COURT
PAUL E. ROGERS
JOHN W. CHRISTOPHER
CIVIL - PROPERTY DAMAGE
JURY VERDICT FOR THE WHITES; TRIAL
COURT GRANTED ADDITUR
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 10/13/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
On February 12, 2003, William P. White and Patricia L. White (the Whites) filed a
complaint against J. Criss Builder, Inc. (JCB), Janie Criss (Criss), and Bailey Engineering
and Land Surveying, LLC (Bailey) alleging breach of warranty, negligence, and failure to
disclose regarding the construction of the Whites’ home. Bailey was subsequently dismissed
as a party. JCB and Criss moved for summary judgment alleging that the Whites did not file
their complaint within the six-year statute of repose under Mississippi Code Annotated
section 15-1-41 (Rev. 2003). The trial court denied the motion for summary judgment. After
a trial on the matter, a jury in the Madison County Circuit Court found in favor of the Whites
in the amount of $30,000. The trial court granted the Whites an additur in the amount of
$103,701.82.
¶2.
JCB and Criss now appeal the judgment, arguing that: (1) this action was untimely
under section 15-1-41; (2) Criss should not be held personally liable for any alleged faulty
construction; and (3) it was error to grant an additur.
FACTS
¶3.
JCB is a Mississippi corporation that was wholly owned by Criss, a licensed
residential builder. JCB did not have a builder’s license. Criss had a valid builder’s license,
which was obtained in her individual capacity. On July 30, 1996, JCB purchased the lot in
Madison County, Mississippi, on which the Whites’ home was constructed. As the licensed
builder, Criss oversaw the construction of the home. On November 21, 1996, JCB conveyed
the lot and completed home to Criss in her individual capacity. Criss lived in the home and
applied for homestead exemption. On February 17, 1997, Criss sold the home to the Whites.
¶4.
Approximately one year after the Whites moved into the home, they noticed a hairline
crack in the scored concrete floor which grew larger over time. Soil testing revealed that the
home was constructed upon soil containing Yazoo clay. Criss knew, prior to building, there
was Yazoo clay present. The Whites repaired the foundation and other damage resulting
from the foundation problems. According to expert testimony, the home suffered a $50,000
diminution of value due to these repairs.
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DISCUSSION
I. STATUTE OF REPOSE
¶5.
In their first issue on appeal, JCB and Criss argue that the trial court erred in failing
to dismiss the action based upon the applicable six-year statute of repose found in Mississippi
Code Annotated section 15-1-41. We note that issues of statutory interpretation present a
question of law; therefore, this Court will conduct a de novo review of the trial court’s
decision. Grand Casino Tunica v. Shindler, 772 So. 2d 1036, 1038 (¶8) (Miss. 2000).
¶6.
Section 15-1-41 states, in pertinent part, that:
No action may be brought to recover damages for injury to property, real or
personal, or for an injury to the person, arising out of any deficiency in the
design, planning, supervision or observation of construction, or construction
of an improvement to real property, and no action may be brought for
contribution or indemnity for damages sustained on account of such injury
except by prior written agreement providing for such contribution or
indemnity, against any person, firm or corporation performing or furnishing
the design, planning, supervision of construction or construction of such
improvement to real property more than six (6) years after the written
acceptance or actual occupancy or use, whichever occurs first, of such
improvement by the owner thereof. This limitation shall apply to actions
against persons, firms and corporations performing or furnishing the design,
planning, supervision of construction or construction of such improvement to
real property for . . . any private . . . entity.
This limitation shall not apply to any person, firm or corporation in actual
possession and control as owner, tenant or otherwise of the improvement at the
time the defective and unsafe condition of such improvement causes injury.
¶7.
Since the statute of repose does not apply to circumstances where the possessor and
builder are the same, it logically follows that it does not commence until the builder is no
longer in possession of the home.
¶8.
In West End Corp. v. Royals, 450 So. 2d 420, 424 (Miss. 1984), a homeowner sued
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an owner and developer of a ditch that caused his home to flood, and the issue before the
supreme court was whether the then ten-year statute of repose applied where the developer
was the current owner. The supreme court interpreted the second paragraph of section 15-141 and found that it did not apply. Id. The following passage from West End provides
insight about the applicability of section 15-1-41 in situations where the builder is also the
owner:
We hold that § 15-1-41 does not provide the applicable statute of limitations
where the owner is the builder. We reach this result by addressing the purpose
of § 15-1-41. The builder who usually no longer has control over, nor access
to, the property, is absolved from liability after the proscription period;
however, under the statute the owner remains responsible for the defective
condition, thus insuring a plaintiff will not lose his day in court before injury
ever occurs. When the builder is also the owner[,] the distinctions which give
rise to this dichotomy disappear. The builder, being the same entity as the
owner, necessarily has equal access to the control over the defective condition.
Consequently, a builder/owner is not within the purview of § 15-1-41.
Id. (emphasis added).
¶9.
Based on a review of the language of the statute, as well as the direction given by the
supreme court in West End, the statute of repose in the present case did not commence until
the builder/owner, Criss, was no longer in possession of the house. Criss, undisputably the
builder, sold the home to the Whites on February 17, 1997, within six years of the filing of
the complaint on February 12, 2003. Therefore, we find that the Whites’ claims are not
barred by the six-year statute of repose.
II. CRISS’S LIABILITY
¶10.
In their second issue on appeal, JCB and Criss argue that the trial court erred by
failing to dismiss Criss, individually, from the lawsuit. JCB and Criss contend that “the only
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way Janie Criss as an individual can be held liable . . . is by proper piercing of the corporate
veil of J. Criss Builder, Inc.” We should note that the present cause of action was not filed
under a veil-piercing theory, and none of the parties requested that the court instruct the jury
on piercing the corporate veil. Instead, while discussing the issue of corporate versus
individual liability, the attorney representing JCB and Criss told the trial court:
We don’t have a veil[-]to[-]pierce instruction. You have to prove by clear and
convincing evidence flagrant disregard of corporate formalities, frustration of
purpose and some fraud or other [malfeasance] on behalf of [Criss.] We don’t
have that in this case. This is not a veil[-]piercing case. It’s no different than
if a corporate employee was driving a car and had a wreck and they were
negligent. They’re liable for their own actions.
¶11.
After much discussion between the parties and the court, the trial court crafted the
following jury instruction, which the parties agreed adequately covered the contested issue
of Criss’s individual liability:
An officer, director and/or shareholder of a corporation is not generally held
personally liable for the acts of the corporation. An officer, director, and/or
shareholder of a corporation may be held personally liable for the acts of the
corporation by her own acts or conduct. If you find by a preponderance of the
credible evidence presented in this case that at the time the subject house was
being built that Janie Criss was acting solely on behalf of J. Criss Builder, Inc.,
and not individually then your verdict shall be in favor of Janie Criss in her
individual capacity.
¶12.
Based upon the jury’s verdict against JCB and Criss, individually, it is reasonable to
find that the jury found that Criss was acting on her own behalf when she built the house.
¶13.
Under Mississippi law, residential builders must be licensed by the State Board of
Contractors. Mississippi Code Annotated section 73-59-3(1) (Rev. 2008) 1 provides, in
1
Mississippi Code Annotated section 79-59-1 to -21 was set to repeal effective July
1, 2009. However, the Legislature has reenacted the statute in 2009 and amended section
5
pertinent part, that “persons who perform residential construction or residential improvement
shall be licensed by the board annually[.]”
Corporations or individuals are deemed
residential builders for purposes of this statute. See Miss. Code Ann. § 73-59-1(b) (Rev.
2008).2 Criss’s corporate entity, JCB, did not have a builder’s license; thus, it was prohibited
from performing residential construction. See Miss. Code Ann. § 73-59-9(3) (Rev. 2008).3
Criss did, however, have a valid builder’s license, which was obtained in her individual
capacity. Criss, in her individual capacity, was the licensed builder of the house. According
to her testimony, Criss’s job duties included designing the house plans, arranging financing,
coordinating the subcontractors, selecting building materials, negotiating prices with
suppliers, choosing paint colors, selecting roof types, working with engineers to design the
foundation, and overseeing the dirt work on the lot to make sure it was handled properly.
¶14.
Since Criss was the licensed builder and JCB was legally prohibited from performing
residential construction, we cannot find that the trial court erred in declining to dismiss Criss,
individually, from the suit. The jury clearly found that Criss was personally liable for the
construction of the home. This issue is without merit.
III. ADDITUR
¶15.
In the final issue on appeal, JCB and Criss argue that the trial court erred in granting
an additur. After the jury awarded the Whites $30,000, the Whites filed a motion for an
79-59-3. See 2009 Miss. Laws Ch. 556 (H.B. 8). The language quoted from section 79-59-3
was not changed.
2
See n.1. The language in 73-59-1 was not changed.
3
See n.1. The language in 73-59-9 was not changed.
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additur. The trial court found that the Whites were entitled to an additur in the sum of
$103,701.82. Pursuant to Mississippi Code Annotated section 11-1-55 (Rev. 2002), the court
may grant an additur, “if the court finds that the damages are . . . inadequate for the reason
that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the
damages awarded were contrary to the overwhelming weight of credible evidence.”
¶16.
The standard of review for considering an additur on appeal is limited to determining
whether the trial court abused its discretion. Ross-King-Walker, Inc. v. Henson, 672 So. 2d
1188, 1193 (Miss. 1996). The trial court may only usurp the jury’s function in setting a
damage award, when it complies with the language of the statute and finds either that: (1) the
jury’s verdict is so shocking to the conscience that it evinces bias, passion, and prejudice on
the part of the jury; or (2) the verdict is contrary to the overwhelming weight of the credible
evidence. State Highway Comm’n of Miss. v. Warren, 530 So. 2d 704, 707 (Miss. 1988).
“Absent either of these findings, the trial court abuses its discretion.” Id.
¶17.
The trial court’s order granting the additur simply finds that the “motion [was] well
taken and should be granted.” Because the trial court did not indicate its specific findings
in granting the additur, we find this to be an abuse of discretion. However, this does not
preclude the trial court, on remand, from granting the additur. Rather, if the trial court
chooses so, there must be adequate findings to support the additur. Accordingly, we remand
the case to the trial court to either reinstate the jury’s verdict or consider the additur in
accordance with the applicable statutory guidance.
¶18. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF
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THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANTS AND
APPELLEES.
KING, C.J., MYERS, P.J., IRVING, BARNES AND ISHEE, JJ., CONCUR.
MAXWELL, J., CONCURS IN PART AND IN THE RESULT. GRIFFIS, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS, J.
CARLTON, J., NOT PARTICIPATING.
GRIFFIS, J., DISSENTING:
¶19.
I respectfully dissent because I find that William and Patricia White’s (collectively
“the Whites”) claims are time-barred by Mississippi Code Annotated section 15-1-41 (Rev.
2003). Accordingly, I would reverse the judgment of the Madison County Circuit Court and
render judgment in favor of J. Criss Builder, Inc. (“JCB”) and Janie Criss (“Criss”)
dismissing the Whites’ claims.
¶20.
JCB and Criss argue that the statute of repose began to run under section 15-1-41on
November 23, 1996, when Criss purchased the home and occupied the home. The Whites
argue that the legislative intent behind section 15-1-41 is that the statute does not begin to
run until the builder relinquishes access and control to a third party.
¶21.
"It is a well[-]recognized principle of law in this State that ambiguity must exist in the
language used by the Legislature in a statute before resort will be had to any rules of
statutory construction or interpretation.” Forman v. Carter, 269 So. 2d 865, 868 (Miss.
1972). This Court must begin our inquiry with the plain language of section 15-1-41, which
states, in pertinent part, that:
No action may be brought to recover damages for injury to property, real or
personal, or for an injury to the person, arising out of any deficiency in the
design, planning, supervision or observation of construction, or construction
of an improvement to real property, and no action may be brought for
contribution or indemnity for damages sustained on account of such injury
8
except by prior written agreement providing for such contribution or
indemnity, against any person, firm or corporation performing or furnishing
the design, planning, supervision of construction or construction of such
improvement to real property more than six (6) years after the written
acceptance or actual occupancy or use, whichever occurs first, of such
improvement by the owner thereof. This limitation shall apply to actions
against persons, firms and corporations performing or furnishing the design,
planning, supervision of construction or construction of such improvement to
real property for the State of Mississippi or any agency, department, institution
or political subdivision thereof as well as for any private or nongovernmental
entity.
(Emphasis added.)
¶22.
The Whites urge this Court to look beyond the plain language of the statue to the
Legislature’s intent and argue that “[s]ection 15-1-41 was intended by the [L]egislature to
protect architects, builders and the like who have completed their jobs and who have
relinquished access and control of the improvements.” Ferrell v. River City Roofing, Inc.,
912 So. 2d 448, 453 (¶13) (Miss. 2005) (quoting West End Corp. v. Royals, 450 So. 2d 420,
424 (Miss. 1984)). The Whites stress that this Court must consider Criss to be the builder
within the meaning of section 15-1-41, because she was licensed as required by Mississippi
Code Annotated section 73-59-3(1) (Rev. 2008), and JCB did not have a builder’s license.
The Whites claim that the builder – Criss – did not relinquish control of the home until she
sold it to the Whites.
¶23.
I find that section 15-1-41 is not ambiguous when applied to a situation where a
builder – Criss – builds a home for the original owner – JCB – and subsequently purchases
the home. The statute does not use “relinquish control” as a test to determine whether the
statute begins to run; rather, the statue states that “written acceptance or actual occupancy
or use” by the owner triggers the statute. Here, Criss – even if considered the builder –
9
purchased the completed home from JCB and actually occupied and used the home in her
personal capacity.
¶24.
While the supreme court has determined that the intent behind section 15-1-41 is to
protect architects, builders and the like who have completed their jobs and who have
relinquished access and control of the improvements, the statute makes no exception to the
six-year statute of repose if a builder or architect subsequently accepts, actually occupies, or
uses the home. The plain language of the statute states that the statute of repose starts to run
from the time of “written acceptance or actual occupancy or use, whichever occurs first, of
such improvement by the owner thereof.” Miss. Code Ann. § 15-1-41. The supreme court
“requires occupancy or acceptance of the building or improvement made thereon as the
beginning point for the tolling of the statute of [repose].” McMichael v. Nu-Way Steel and
Supply, Inc., 563 So. 2d 1371, 1376 (Miss. 1990). The Whites do not dispute that Criss
purchased the home on November 21, 1996, and resided therein beginning on November 23,
1996, and filed for homestead exemption.
¶25.
The majority, by following the Whites’ argument, creates a scenario where the statute
of repose could begin to run on two different dates, depending on who the claim was against.
Here, the Whites ask this Court to find that the statute of repose began to run when Criss sold
the house to them, because Criss maintained control during the time that she occupied the
home as her residence. But the architect who designed the home would not have maintained
control over the home during Criss’s ownership and occupancy, so the statute of repose
would have started at some other date with respect to the architect.
¶26.
The majority relies on West End Corp., 450 So. 2d at 424 as authority for their
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position that section 15-1-41 does not apply when the builder purchases the home from the
original owner. There, the issue was whether the West End Corporation was liable to Robert
and Judy Royals for flooding to their home due to a drainage system built and continuously
owned by West End. Id. West End argued that it did not possess or control the drainage
ditch because ownership had passed to the City of Hattiesburg, Mississippi. Id. The supreme
court found that the drainage system had never passed to the City and stated that:
We hold that § 15-1-41 does not provide the applicable statute of limitations
where the owner is the builder. We reach this result by addressing the purpose
of § 15-1-41. The builder who usually no longer has control over, nor access
to, the property, is absolved from liability after the proscription period;
however, under the statute the owner remains responsible for the defective
condition, thus insuring a plaintiff will not lose his day in court before injury
ever occurs. When the builder is also the owner the distinctions which give
rise to this dichotomy disappear. The builder, being the same entity as the
owner, necessarily has equal access to the control over the defective condition.
Consequently, a builder/owner is not within the purview of § 15-1-41.
Id. The supreme court held that the builder/owner of a drainage system was liable to a third
party when the builder maintained possession and control of the drainage system from the
time it was constructed until the time that the suit was filed by a third party. Id. West End
is factually distinguishable from this case; there, the builder/owner never relinquished
possession or control to anyone. Here, the original owner, JCB, did relinquish control to
Criss in her individual capacity, and she did show actual occupancy of the home.
¶27.
Therefore, I would not extend this exception, based on legislative intent, beyond the
factual situation in West End. Instead, effect should be given to section 15-1-41, and I would
hold that the statute of repose began to run when Criss purchased the home in her individual
capacity from the owner – JCB – because she showed actual occupancy and use when she
11
used the home as her personal residence and applied for a homestead exemption.
ROBERTS, J., JOINS THIS OPINION.
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