B & C Construction and Equipment, LLC v. Ovella et al
Filing
123
ORDER granting in part and denying in part Plaintiff's 96 Motion for Summary Judgment and denying Defendant's 100 Motion for Partial Summary Judgment.Signed by District Judge Halil S. Ozerden on 7/8/2013. (Brown, T.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
B & C CONSTRUCTION AND
EQUIPMENT, LLC
v.
DOMINIC OVELLA
§
§
§
§
§
§
§
PLAINTIFF
Civil No. 1:12CV007HSO-RHW
DEFENDANT
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND DENYING DEFENDANT’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
BEFORE THE COURT is a Motion for Summary Judgment [96] filed by B&C
Construction and Equipment, LLC [“B&C”] on March 15, 2013, pursuant to Federal
Rule of Civil Procedure 56. Dominic Ovella [“Ovella”] filed a Response [108] on
April 18, 2013, and B&C filed a Rebuttal [116]. Also before the Court is Ovella’s
Motion for Partial Summary Judgment [100] filed March 18, 2013, pursuant to
Federal Rule of Civil Procedure 56. B&C filed a Response [112] on April 18, 2013,
and Ovella filed a Rebuttal [115]. After due consideration of the Motions,
Responses, Rebuttals, the record and pleadings on file, and relevant legal
authorities, the Court finds that B&C’s Motion for Summary Judgment [14] should
be granted in part and denied in part and Ovella’s Motion for Partial Summary
Judgment [100] should be denied.
I. FACTS AND PROCEDURAL HISTORY
On July 19, 2012, the Court issued a Memorandum Opinion and Order [43] in
this case, which granted in part and denied in part Ovella’s Motion to Dismiss,1 and
B & C’s unjust enrichment claim was dismissed with prejudice on res judicata
grounds. The Court further determined that because B & C’s remaining claims for
breach of contract, breach of the duty of good faith and fair dealing, and tortious
breach of contract were dismissed without prejudice by United States District Judge
Louis Guirola in Dominic Ovella v. B & C Construction and Equipment, LLC, No.
1:10-CV-285 (S.D. Miss. February 13, 2012), the doctrine of res judicata did not bar
those claims.
On September 7, 2012, B & C filed a First Amended Complaint [55] against
Ovella2 asserting the following three claims: (1) breach of contract; (2) breach of the
duty of good faith and fair dealing and misrepresentation of intentions; and (3)
tortious breach of contract. B & C filed its Motion for Summary Judgment on
March 15, 2013, and Ovella filed a Motion for Partial Summary Judgment on March
18, 2013.
II. DISCUSSION
A.
Legal Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment is
1
The facts and procedural history of this case were previously set forth in the
Court’s Memorandum Opinion and Order [43] granting in part and denying in part
Ovella’s Motion to Dismiss. They will not be repeated here; however, the Court
adopts and incorporates them by reference. The Court will focus only on the facts
pertinent to resolution of the instant Motions.
2
Kathy Ovella was not named in the Amended Complaint and was terminated
from these proceedings on September 7, 2012.
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appropriate “[i]f the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). The purpose of summary judgment is to isolate and dispose of
factually unsupported claims or defenses. Melton v. Teachers Ins. & Annuity Ass’n
of America, 114 F.3d 557, 560 (5th Cir. 1997)(citing Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)).
To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that there exists a genuine
issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.
2000). In deciding whether summary judgment is appropriate, the Court views facts
and inferences in the light most favorable to the nonmoving party. RSR Corp. v.
Int’l Ins. Co., 612 F.3d 851, 858 (5th Cir. 2010). However, if the evidence is merely
colorable, or is not significantly probative, summary judgment is appropriate.
Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co, 671 F.3d 512, 516
(5th Cir. 2012)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
“[M]ere conclusory allegations are not competent summary judgment evidence, and
such allegations are insufficient, therefore, to defeat a motion for summary
judgment.” Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
“There is no material fact issue unless the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” RSR Corp., 612 F.3d at 858.
“A fact is ‘material’ if its resolution in favor of one party might affect the outcome of
the lawsuit under governing law. An issue is ‘genuine’ if the evidence is sufficient
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for a reasonable jury to return a verdict for the nonmoving party.” Hamilton, 232
F.3d at 477 (citing Anderson, 477 U.S. at 248). “The court has no duty to search the
record for material fact issues.” RSR Corp., 612 F.3d at 858. “Rather, the party
opposing summary judgment is required to identify specific evidence in the record
and to articulate precisely how this evidence supports his claim.” Id.
Because this is a case of diversity jurisdiction, the Court must apply state
substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 79-80 (1938); Krieser v.
Hobbs, 166 F.3d 736, 739 (5th Cir. 1999).
The core of what has become known as the ‘Erie Doctrine’ is that the
substantive law to be applied by a federal court in any case before it is
state law, except when the matter before the court is governed by the
United States Constitution, an Act of Congress, a treaty, international
law, the domestic law of another country, or in special circumstances, by
federal common law.
Hanley v. Forester, 903 F.2d 1030, 1032 (5th Cir. 1990).
B.
Analysis
1.
B & C’s Motion for Summary Judgment
B & C moves for judgment as a matter of law on the grounds that the
doctrines of collateral estoppel and res judicata bar Ovella’s defenses to the breach
of contract claim asserted in the Amended Complaint. B & C contends that because
issues and evidence surrounding the alleged breach of contract and negligence were
submitted to the jury and resolved against Ovella during the trial held in Dominic
Ovella v. B & C Construction and Equipment, LLC, No. 1:10-CV-285 (S.D. Miss.
February 13, 2012), Ovella is precluded from asserting the same facts as defenses in
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this case. B & C contends that all of Ovella’s defenses:
are based upon facts identical to those litigated in the prior action
between the same parties. All such facts were fully and fairly litigated,
were necessary and essential to the resulting judgment and were
presented to the jury in the prior suit as the foundation for Ovella’s claims
of breach of contract, negligence and violation of the New Home Warranty
Act causes of action.
Pl.’s Mem. in Supp. of Mot. for Summ. J. [97] at p. 11.
Ovella counters that “at the close of all evidence in the 2010 Lawsuit, the Court
dismissed B & C’s breach of contract claim, which mirrors its claims in this case.”
Ovella argues that “B & C is not entitled to the application of collateral estoppel in
this case due to its own misconduct.” Def.’s Mem. in Supp. of Resp. [109] at p. 12.
“We apply federal law to the question of the res judicata or collateral estoppel
effect of prior federal court proceedings, regardless of the basis of federal jurisdiction
in either the prior or the present action.” Jackson v. FIE Corp., 302 F.3d 515, 529
n.5 (5th Cir. 2002)(quoting Avondale Shipyards, Inc. v. Insured Lloyd’s, 786 F.2d
1265, 1269 n.4 (5th Cir. 1986)).
a.
Res Judicata
Under the doctrine of res judicata, once a judgment is rendered that judgment
is thereafter considered the full measure of relief to be accorded between the same
parties on the same claim or cause of action. Kaspar Wire Works, Inc. v. Leco Eng’g
& Mach., Inc., 575 F.2d 530, 535 (5th Cir. 1978)(internal quotations and citations
omitted). “Res judicata prevents litigation of all grounds for, or defenses to, recovery
that were previously available to the parties, regardless of whether they were
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asserted or determined in the prior proceeding.” Brown v. Felsen, 442 U.S. 127, 131
(1979).
The following elements must be present before the doctrine of res judicata
applies:
(1) the parties are identical in both actions; (2) the prior judgment was
rendered by a court of competent jurisdiction; (3) the prior judgment
was final on the merits; and (4) the two cases involve the same cause
of action.
Travelers Ins. Co. v. St. Jude Hosp. of Kennar, LA, 37 F.3d 193, 195 (5th Cir. 1994).
In the present case, the first element is present because B & C and Ovella are
identical parties to the first litigation. As for the second and third elements, this
Court had jurisdiction and a final judgment on the jury verdict was entered in favor
of B & C. However, the fourth element, that the two cases involve the same claim
or cause of action, is lacking. While both cases concerned an alleged breach of the
same construction contract, Ovella was the plaintiff asserting the breach in the first
cause of action while B & C is the plaintiff asserting breach of contract against
Ovella in the present action. As such, the doctrine of res judicata does not operate to
bar the present claims or defenses raised in this case.
b.
Collateral Estoppel
Collateral estoppel, or issue preclusion, precludes relitigation of issues
actually adjudicated and essential to the judgment in prior litigation involving a
party to the first case. Allen v. McCurry, 449 U.S. 90, 94 (1980). “When a federal
court sitting in diversity is considering the collateral estoppel effect of a prior federal
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court judgment, Courts in the Fifth Circuit apply federal common law.” Walker v.
Kerr-McGee Chem. Corp., 793 F. Supp. 688, 697 (N.D. Miss. 1992). The doctrine of
collateral estoppel effectively establishes questions of law or fact that are subject of
a final judgment for purposes of a later lawsuit where the following elements are
present: (1) a party is seeking to relitigate a specific issue; (2) the issue has been
litigated in a prior suit; (3) the issue was actually determined in the prior suit; and
(4) the determination of the issue was essential to the judgment. Walker, 793 F.
Supp. at 694-95.
In his opposition to B & C’s Motion, Ovella seemingly continues to take issue
with the outcome of the former litigation, arguing that:
[t]he jury in the 2010 Lawsuit returned, in essence, a general verdict for
the B & C, which makes it virtually impossible to determine the exact
basis of its decision—i.e. which of the almost 150 disputed issues of facts
the jury decided in order to reach its verdict. Had the jury been provided
written questions to answer to pursuant Fed. Rule Civ. P. 49 or had it
been provided a more specific verdict form, the answer to this question
would be crystal clear.
Id. at p. 15.
Ovella further submits that the “issue of the proper amount of credits owed to Mr.
Ovella could not have been necessary to the jury’s verdict in the 2010 lawsuit and
should not be precluded here.” Def.’s Mem. in Supp. of Resp. [109] at p. 17.
The following special interrogatories were submitted to the jury in the prior
litigation for consideration of the claims Ovella advanced against B & C:
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Question Number One
1(A) Do you find that Dominic and/or Kathleen Ovella have
proven, by a preponderance of the evidence, that B & C Construction
and Equipment, LLC negligently constructed their home?
Answer “Yes” or “No:” No
Answer the remaining portions of Question Number One only if you
answered “yes” to 1(A). If you answered “no,” proceed to Question
Number Two.
Question Number Two
2(A) Do you find that Dominic and/or Kathleen Ovella have
proven, by a preponderance of the evidence, that B & C Construction
and Equipment, LLC made negligent misrepresentations?
Answer “Yes” or “No:” No
Answer the remaining portion of Question Number Two only if you
answered “yes” to 2A. If you answered “no,” proceed to Question
Number Three.
Question Number Three
3(A) Do you find that Dominic Ovella has proven, by a
preponderance of the evidence, that B & C Construction and
Equipment, LLC breached the construction contract?
Answer “Yes” or “No:” No
Answer the remaining portion of Question Number Three only if you
answered “yes” to 3A. If you answered “no,” proceed to Question
Number Four.
Question Number Four
4(A) Have Dominic and/or Kathleen Ovella proven by a
preponderance of the evidence:
1. that B & C Construction breached the warranty
under the Mississippi New Home Warranty Act to
provide a home free from defects due to noncompliance with the building standards?
Answer “Yes” or “No:” No
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2. that the home had a defect or defects due to
noncompliance with the building standards?
Answer “Yes” or “No:” No
3. that the defect or defects caused the Plaintiffs’
damages?
Answer “Yes” or “No:” No
Verdict Form [395], Dominic Ovella, et al. v. B & C Construction Co., Civil Act. No.
1:10cv285 LG-RHW.
In sum, the jury determined that: (1) B & C was not negligent in its
construction of the Ovella home; (2) B & C did not make negligent
misrepresentations to the Ovellas; (3) B & C did not breach the terms of its
construction contract with the Ovellas; and (4) B & C did not breach its warranty
under the Mississippi New Home Warranty Act. Id.
The jury further concluded
that the Ovella home had no defects due to non-compliance with building standards,
and that the Ovellas did not suffer damages as a result of any alleged defects. Id.
In the present case, an important distinction must be made. The record is
clear that during the previous trial B & C’s counterclaims were dismissed without
prejudice at the close of the trial. In ruling on the parties’ Motions during trial the
Court noted that:
as a practical matter, the same evidence is going to be presented in a
different case . . . [a]nd let me make this very clear for the record so there
is no question in the future. This is a dismissal based upon the statute
and does not serve as an adjudication on the merits. And it leaves B & C
Construction free to litigate their breach of contract claim against Mr.
Ovella in the district court.
Trial Tr. [108-8] at p. 379-380, att. as Ex. “8” to Resp. to Mot. for Summ. J.
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Although the same construction contract is at issue in this case, the burden
now rests with B &C to prove that Ovella breached the terms of the contract. In
order for B & C to prevail on its breach of contract claim against Ovella, B & C must
prove by a preponderance of the evidence: (1) the existence of a valid and binding
contract between Ovella and B & C; (2) that Ovella materially breached the
contract; and (3) that as a result of the breach, B & C has suffered damages. Favre
Property Management, LLC v. Cinque Bambini, 863 So. 2d 1037, 1044 (Miss. Ct. App.
2004)(citing Warwick v. Matheney, 603 So. 2d 330, 336 (Miss. 1992)). Because these
issues were not actually determined in the context of B & C suing Ovella for breach
of contract, the doctrine of collateral estoppel does not necessarily operate to bar the
development of the factual bases which support B & C’s claims or Ovella’s defenses,
so long as these defenses are not inconsistent with the jury verdict rendered in the
previous litigation.
The claims asserted in the Amended Complaint mirror the counterclaims
B & C asserted against Ovella in Dominic Ovella v. B & C Construction, No. 1:10CV-285 (S.D. Miss. February 15, 2012). The Court finds that material fact
questions remain surrounding the alleged breach of the construction contract by
Ovella, including: (1) whether Ovella did or did not pay B & C the agreed upon
contract price; and (2) the amount, if any, owed to B & C for any alleged overages,
upgrades, and additions. The Court finds that because these material fact questions
remain, it is necessary for a jury to consider and resolve them. With respect to the
defenses asserted by Ovella, the prior jury verdict forecloses any argument that B &
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C: (1) negligently constructed the home; (2) made negligent misrepresentations; (3)
breached the construction contract; or (4) breached the warranty under the
Mississippi New Home Warranty Act. Likewise Ovella cannot argue that his home,
as constructed by B & C, contained defects due to non-compliance with building
industry standards or that the Ovellas suffered any damages due to alleged defects
in construction. To the extent Ovella makes these arguments, or asserts them as
defenses, they are precluded and B & C’s Motion should be granted in part.
However, given the present posture of the case and the numerous fact questions
inherent in the record, the Court is of the view that summary judgment is not
appropriate as to the remaining issues raised in B & C’s Motion. Based on the
foregoing, B & C’s Motion for Summary Judgment on the grounds of collateral
estoppel and res judicata will be granted in part and denied in part.
2.
Ovella’s Motion for Partial Summary Judgment
Ovella moves for partial summary judgment “on each of the following claims
asserted by Plaintiff: 1) promissory fraud, 2) tortious breach of contract, 3) breach of
duty of good faith and fair dealing, and 4) lost profits damages.” Def.’s Mot. for
Summ. J. [101] at p. 1.
a.
Promissory Fraud
Ovella contends that the “alleged promises forming the basis of this fraud
claim were non-contractual promises of future conduct; thus, they are not actionable
as fraud under Mississippi law.” Def.’s Mot. for Summ. J. [101] at p. 3. “As a matter
of law, fraud cannot be predicated on promissory statements. However, fraud can be
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predicated on a promissory statement where the promise is made with the present
undisclosed intention not to perform the promise.” Johnson v. Bay City S. Mortgage
Co., 928 So. 2d 888, 892 (Miss. Ct. App. 2005)(internal citations omitted). The
Amended Complaint does not contain an allegation of “promissory fraud” nor has
the Court been cited to any authority establishing that such a cause of action exists
in Mississippi. Ovella’s Motion for judgment as a matter of law on promissory fraud
should be denied. To the extent that Ovella’s arguments on this point are applicable
to B & C’s claim for breach of the duty of good faith and fair dealing and/or
misrepresentation of intentions, the Court will address them together in its analysis
of Ovella’s request for summary judgment on those claims.
b.
Breach of the Duty of Good Faith and Fair Dealing and
Misrepresentation of Intentions
Count Two of B & C’s Amended Complaint reads as follows:
Ovella had a duty to exercise good faith and fair dealing in his business
relationship and contract with B & C Construction. This duty included an
obligation not to act arbitrarily in making decisions within Ovella’s
discretion under the terms of the contract, to deal with B & C honestly
and not to conceal or misrepresent his intentions, and not to arbitrarily
withhold payments due under the contract without a legitimate reason for
doing so.
Ovella intentionally misrepresented his intentions and breached his duty
of good faith and fair dealing and by mis-stating his payment intentions
thereby inducing forbearance in justifiable reliance on same, fabricating
and/or misrepresenting "defects" with the home, refusing to specify
deficiencies and desired remedies, withholding payment with no
legitimate basis for doing so, and attempting to intimidate B & C through
abusive language and threats.
Am. Compl. [55] at pp. 7-8.
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Ovella contends that B & C has failed to establish the independent tort of
breach of the duty of good faith and fair dealing and has only alleged a breach of a
promise arising out of duties imposed by the contract. Ovella further maintains that
B & C cannot demonstrate that Ovella acted in bad faith characterized by conduct
which violates the standards of decency, fairness, or reasonableness. Def.’s Mot. for
Summ. J. [101] at p. 4.
B & C responds that the record is replete with material fact questions
regarding whether “Mr. Ovella’s promises to B & C were contractual promises made
with the present undisclosed intention of not performing. . . . [and whether] Mr.
Ovella had reached a decision . . . not to pay B & C, but to string it along in order to
have the work finished and get his occupancy permit.” Pl.’s Resp. [113] at p. 11.
In support of its fraud allegation, B & C submits the following evidence that Ovella
made certain contractual promises with an intent to not perform:
(1) his overspending of available funds leaving him with no apparent fund
with which to pay B & C, (2) his continued “moving of the ball,” while
inducing B & C to continue work on the punch list items and louvers; (3)
when the work was completed, his refusal to take B & C’s calls about the
monies owed for five weeks; (4) entering “negotiations” over the course of
several months to try to reach an amicable resolution, but refusing to
respond to or meet with B & C or its attorney to resolve the issues as
requested; (5) by his filing suit without responding to B & C’s good faith
attempts to resolve the matter; (6) by alleging all manner of
manufactured defects that were controverted by his own experts and
rejected by the jury; (7) by hiring his own law firm at no cost to himself to
bully B & C into foregoing the sums owed; and (8) by now, more than a
year after trial, his having taken no action to correct any of the “grave” or
“dangerous” defects and/or violations that he contended warranted tearing
down his house.
Mem. in Supp. of Resp. [113] at pp. 11-12.
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B & C argues that based upon Ovella’s course of conduct coupled with his
testimony given during the first trial relating to alleged construction defects and
available funds for construction, the question whether he breached the contract in
bad faith or breached the duty of good faith and fair dealing are factual disputes
which are proper for jury resolution.
Implicit in every contract is a covenant of good faith and fair dealing in
performance and enforcement. Cenac v. Murry, 609 So. 2d 1257, 1272 (Miss. 1992).
The parties to such a contract agree that neither will do anything which will injure
the right of the other to receive the benefit of the agreement. Favre Prop. Mgmt.,
LLC v. Cinque Bambini, 863 So. 2d 1037, 1045 (Miss. Ct. App. 2004)(quoting
Cothern v. Vickers, 759 So. 2d 1241, 1248 (Miss. 2000)). “Good faith is the
faithfulness of an agreed purpose between two parties, a purpose which is consistent
with justified expectations of the other party. The breach of good faith is bad faith
characterized by some conduct which violates standards of decency, fairness or
reasonableness.” Id. at 1272 (citing RESTATEMENT (SECOND) OF CONTRACTS § 205,
100 (1979)). Under Mississippi law bad faith requires a showing of “more than bad
judgment or negligence; rather bad faith implies some conscious wrongdoing
because of ‘dishonest purpose or moral obliquity.’” Limbert v. Miss. Univ. for Women,
998 So. 2d 993, 998 (Miss. 2008)(quoting Univ. of So. Miss. v. Williams, 891 So. 2d
160, 170–71 (Miss. 2004); see also JLB & Paint v. Indus. Corrosion Control, Inc.,
2009 WL 5184457, * 3 (S.D. Miss. Dec. 22, 2009)(“Court does not find any
meaningful distinction between Plaintiff's bad faith argument and breach of
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contract argument” where Plaintiff failed to offer evidence of bad faith other than
the breach of the agreement itself)).
In the present case, the record before the Court demonstrates that material
fact questions remain as to whether Ovella’s actions were intentional or amounted
to bad faith. Therefore, summary judgment is inappropriate on B & C’s claim for
breach of the duty of good faith and fair dealing. To the extent that B & C alleges
that Ovella misrepresented his intentions, specifically that he would pay
B & C when he intended not to do so, B & C must establish the following elements:
(a) a material and false representation; (b) which is known by the speaker
to be false; (c) and which is intentionally made to induce the hearer to act
in reliance thereon; and (d) the hearer does act to his detriment in
reasonable reliance on the false representation, and (e) the hearer
consequently suffers an injury based on such reliance.
Braidfoot v. William Carey College, 793 So. 2d 642, 652 (Miss. Ct. App. 2000)(citing
McGee v. Swank, 733 So. 2d 308, 312 (Miss. 1998)).
“[N]ot every spoken untruth is actionable as a fraud. It is only if that untruth
was designed to, and did, in fact, induce the hearer to change his position in
justifiable reliance on the untruth that it becomes potentially actionable.” Braidfoot,
793 So. 2d at 654 (citing McGee v. Swank, 733 So. 2d 308, 312 (Miss. 1998)).
In the context of summary judgment when the party has alleged fraud
this Court has alluded to the notion that the cases which involve
allegations of fraud or misrepresentation generally are inappropriate for
disposition at a summary-judgment stage . . . It is well established that
fraud is never assumed but is essentially a question of facts [sic] which
clear and convincing evidence must prove. . . . Fraud is essentially a
question of fact best left for the jury.
Allen v. Mac Tools, Inc., 671 So. 2d 636, 642-43 (Miss. 1996)(internal citations
omitted).
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Viewing the evidence in the light most favorable to the nonmovant, the Court
concludes that material fact questions remain as to whether Ovella made
representations that were material and false. Ovella’s Motion should be denied as
to B & C’s misrepresentation of intention allegations.
c.
Tortious Breach of Contract
Count Three of the Amended Complaint asserts the following “Tortious
Breach of Contract” claim: “Ovella’s breach of contract was willful and malicious and
designed to cause damage to B & C and to B & C’s business and reputation.” Am.
Compl. [55] at p. 8. Under Mississippi law a claim for “tortious breach of contract
requires, in addition to a breach of contract, some intentional wrong, insult, abuse,
or negligence so gross as to constitute an independent tort.” Banks v. S. Farm Bur.
Cas. Co., 912 So. 2d 1094, 1098 (Miss. Ct. App. 2005)(citing Eselin-Bullock &
Associates Ins. Agency, Inc. v. National General Ins. Co., 604 So. 2d 236, 240 (Miss.
1992)).
Ovella contends that this claims fails as a matter of law because B & C
cannot demonstrate with significant probative evidence that Ovella committed an
intentional wrong or requisite similar conduct. Def.’s Mot. for Summ. J. [101] at p.
4. In the present case, the breach of contract claim must be resolved by a jury.
Because the claims for tortious breach of contract and breach of the duty of good
faith and fair dealing are intertwined with a determination of whether Ovella
breached the contract, summary resolution of these claims would be improper. In
the context of this case, any findings as to whether there was an intentional wrong,
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insult, abuse, or negligence so gross on the part of Ovella as to constitute an
independent tort should be made by the jury in conjunction with resolving the
breach of contract claim. See Lee v. Thompson, 43 So. 3d 1104, 1115-16 (Miss. 2010);
Occu-Health, Inc. v. Mississippi Space Svcs., 2008 WL 2037443, * 5 (S.D. Miss. May
9, 2008). In reaching these conclusions, the Court is guided by the principle that
summary judgment should be used cautiously “when resolution of the dispositive
issue requires a determination of state of mind.” Croley v. Matson Navigation Co.,
434 F.2d 73, 77 (5th Cir. 1970).
d.
Lost Profits
Ovella asserts that B & C’s claim “for lost profits damages fails as a matter of
law because the alleged damages are not a consequence of any of the claims asserted
by B & C in this lawsuit, and, even assuming the alleged damages stem from one
the claims in this case, they are too speculative to merit recovery.” Def.’s Mot. for
Summ. J. [101] at p. 4. In the Amended Complaint, B & C seeks lost profits in its
prayer for relief. Am. Compl. [55] at p. 11.
Recovery of lost profits does not require that the loss be susceptible to
exact calculation. Nevertheless, the amount of the loss must be shown by
competent evidence with reasonable certainty. While this reasonablycertain-evidence determination is a fact intensive inquiry, opinions of
estimated lost profits must, at a minimum, be based on objective facts,
figures, or data from which the amount of lost profits can be ascertained.
J & B Entm't v. City of Jackson, Miss., 720 F. Supp. 2d 757, 764 (S.D. Miss. 2010).
The Court concludes that the issue of whether B & C sustained lost profits as
a result of Ovella’s conduct is inextricably intertwined with the breach of contract
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claims and cannot be dismissed as a matter of law at this juncture. Ovella’s Motion
for Partial Summary Judgment should be denied as to this issue.
III. CONCLUSION
Based on the foregoing, the Court concludes that B & C’s Motion for
Summary Judgment should be granted in part and denied in part. The Court
further finds that Ovella’s Motion for Summary Judgment should be denied as there
are disputed questions of material fact requiring jury resolution.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, for the reasons
stated herein, Plaintiff B & C Construction & Equipment’s Motion [96] for Summary
Judgment on the basis of res judicata and collateral estoppel, filed March 15, 2013,
pursuant to FED. R. CIV. P. 56, is GRANTED IN PART AND DENIED IN PART
as set forth herein.
IT IS, FURTHER, ORDERED AND ADJUDGED that, for the reasons
stated herein, Defendant Dominic Ovella’s Motion [100] for Partial Summary
Judgment, filed March 18, 2013, pursuant FED. R. CIV. P. 56, is DENIED.
SO ORDERED AND ADJUDGED, this the 8th day of July, 2013.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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