Alaina Hill Rogers v. Casey and Co. LLC;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-00800-COA

ALAINA HILL ROGERS APPELLANT

v.

CASEY AND CO. LLC APPELLEE

DATE OF JUDGMENT: 05/14/2018
TRIAL JUDGE: HON. JOHN ANDREW GREGORY
COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: RICHARD SHANE McLAUGHLIN
ATTORNEY FOR APPELLEE: REX F. SANDERSON
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION AFFIRMED IN PART; REVERSED AND
RENDERED IN PART - 12/10/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

CARLTON, P.J., FOR THE COURT:

¶1. Casey and Co. LLC, owned by Casey Moss,1 sued Alaina Hill Rogers for damages

regarding florist services and materials supplied for Alaina’s wedding in May 2017. Alaina’s

family operates a furniture store in Woodland, Mississippi (Woodlands Furniture). In a

bench trial, the court found that in December 2016, before any florist-planning services took

place, the parties agreed that Casey would perform the florist services for Alaina’s wedding

and that Casey could have a sectional sofa, with a pre-tax retail value of $3,799, from

Woodlands Furniture. The trial court further found that the value of the sectional sofa would

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For ease of reference we will sometimes refer to the plaintiff as Casey.
be credited on Casey’s final bill to Alaina for her florist services.

¶2. Casey and Alaina subsequently met three times at the wedding-venue site between

January 2017 and May 13, 2017, which was Alaina’s wedding day. Casey tendered the final

bill for the florist services and materials to Alaina. The statement provided an itemized

description and price for all materials and labor furnished, totaling $8,872.44, and reflected

a $3,799 credit for the sectional sofa, resulting in a final balance of $5,073.44. Alaina

refused to pay, contending that the parties’ only agreement was that Casey could have the

sectional sofa in exchange for her florist services for Alaina’s wedding.

¶3. After Alaina refused to pay, Casey & Co. filed its complaint in the First Judicial

District of Chickasaw County Circuit Court, seeking recovery on the total amount of

indebtedness of $5,073.44, together with costs, interest, and attorney’s fees. After a bench

trial, the court found in favor of Casey & Co., awarding a judgment in the amount of

$5,073.44, together with interest and costs. The trial court also awarded an attorney’s fee in

the amount of $2,536.72. Alaina appealed.

¶4. For the reasons addressed below, we affirm the trial court’s award of the principal

amount of the judgment, plus interest and costs. We reverse and render the trial court’s

decision to award an attorney’s fee in the amount of $2,536.72.

STATEMENT OF FACTS AND COURSE OF PROCEEDINGS

¶5. Plaintiff Casey Moss operates a florist business under the name Casey and Co. LLC.

Casey provided florist services and materials to Defendant Alaina Hill Rogers for Alaina’s

wedding on May 13, 2017, which was also Mother’s Day. Alaina’s family operates a

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furniture business, Woodlands Furniture. The record reflects that in December 2016, Casey

was looking for a sectional sofa for her home and found one at Woodlands Furniture. Casey

and Alaina reached an agreement for Casey to take the sectional sofa, which had a pre-tax

retail value of $3,799, and that amount would be credited on Casey’s final bill to Alaina for

the florist services and materials for Alaina’s wedding.

¶6. When Casey tendered the final, itemized bill for her florist services and materials to

Alaina, which reflected a credit for the sectional sofa, Alaina refused to pay the remaining

balance in the amount of $5,073.44. Casey, through Casey & Co., filed a complaint against

Alaina in the Chickasaw County Circuit Court on August 18, 2017, seeking to recover the

total amount of indebtedness of $5,073.44, together with costs, interest, and attorney’s fees.

Attached to the complaint was Casey’s affidavit of the account and the itemized statement

for materials and services that Casey & Co. provided for Alaina’s wedding. In the complaint,

Casey alleged that Alaina had refused to pay “although often requested to do so.”

¶7. Alaina answered and raised a number of affirmative defenses, including the defense

that “there was no agreement between the parties including sufficiently definite terms as to

amount to a valid contract.”

¶8. The parties agreed to try the case without a jury, and the bench trial was held on

March 22, 2018.

¶9. Casey testified on behalf of Casey & Co. She testified that in December 2016 she was

looking for a sectional sofa at Woodlands Furniture and casually spoke with Alaina’s aunt

about Casey “get[ting] some furniture for some of the cost of the [florist services] for

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[Alaina’s] wedding.” Casey told Alaina’s aunt that she would be meeting with Alaina in

January and that she did not know what the wedding would be like because they had not yet

met. Casey and Alaina talked after that conversation, and Casey testified that she and Alaina

agreed that Casey could pick up the sectional sofa that she liked, and that Casey “would take

it off the bill [for her florist services and materials].”

¶10. Text messages between Casey and Alaina were admitted into evidence. These text

messages reflect that in December 2016, Alaina agreed that Casey’s husband would pick up

the sectional sofa and that Woodlands Furniture would hold a blank check from Casey “until

after [Alaina and Casey] settle up from the wedding.”2 Casey’s husband picked up the

sectional sofa in December as the parties agreed. On May 6, 2017 (a week before the

wedding), Casey again sent a text message to Alaina to confirm the price of the sectional so

that she could “know for wedding billing purposes.”

¶11. Casey further testified that she and Alaina met three times in Kilmichael, Mississippi,

the place where the wedding would be held. Kilmichael was about forty-five minutes from

Casey’s place of business in Houston, Mississippi. Casey and Alaina met once in January

and once in the first week of May, and then Casey and two other workers spent

approximately six hours at the wedding venue on the day of the wedding.

¶12. Casey testified about the labor that went into setting up for the wedding, as well as the

labor and materials necessary to create the bouquets, floral arrangements, and other

decorations for the wedding. Casey testified that Alaina gave Casey pictures of the bouquets,

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The record reflects that Casey’s husband forgot the blank check, so Casey offered
for the store to hold a debit card instead.

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centerpieces, cake flowers, garlands to drape in the trees at the venue, floral arrangements,

and pew markers that Alaina wanted, and these photos were admitted into evidence. Seven

hand-written pages of Casey’s notes from her meetings with Alaina were also admitted into

evidence, detailing the number and descriptions of the various bouquets, corsages,

boutonnieres, garlands, greenery, pew markers, table arrangements, cake flowers, vase

arrangements, centerpieces, and other decorations that Casey was to furnish.

¶13. The hand-written final invoice that Casey submitted to Alaina’s father at the wedding

was admitted into evidence, as well as a typed-up version of the same invoice that Casey

prepared. The final invoice provided a description and price for all materials and labor

furnished, totaling $8,872.44, from which the $3,799 for the sectional sofa was credited,

resulting in a final balance of $5,073.44. Casey testified that when she learned that Alaina

and her family were not planning to pay the balance of her final statement, she sent a letter

memorializing her demand for this amount of money. A detailed statement of services

rendered by Casey’s lawyer was also admitted into evidence.

¶14. Casey testified that she and Alaina agreed on everything listed on the invoice. With

respect to cost, Casey testified that she told Alaina that the flowers would be more costly

because her wedding was on Mother’s Day. Mother’s Day, according to Casey, was very

busy for a florist and required her to bring in extra help. Casey also testified that Alaina

wanted certain pew markers made from orchid leis that had to be flown in from Hawaii, and

Casey told her “a few times” that these would be expensive. Casey suggested that they put

them on every other pew, but Alaina “wanted them on every pew, so that’s what we did.”

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¶15. As for other pricing, Casey admitted that she and Alaina did not reach an agreement

as to a final price. She testified that Alaina never mentioned needing a quote, so she did not

give her one. Casey further testified that they were “add[ing] to this account constantly.”

Copies of entries from Facebook were also admitted into evidence. In these entries, Alaina

and Casey were joking with Alaina’s father, Jeff Hill, about the wedding services Alaina’s

father still had to pay for. Casey said, “[H]e just doesn’t know does he???” Jeff Hill replied,

“[P]retty sure I don’t want to either.”

¶16. After Casey’s testimony, the plaintiff rested. Defense counsel moved for an

involuntary dismissal under Rule 41(b) of the Mississippi Rules of Civil Procedure, which

the trial court denied.

¶17. Alaina testified on her own behalf. She testified that Casey got the sectional sofa,

“and then we agreed that she would do the flowers, and we never agreed upon a price other

than the sectional.” Alaina confirmed that she did not pay the balance of Casey’s invoice that

remained after the price of the sectional sofa was credited. She testified that she felt like

Casey had already been paid everything that they owed her because she got the sectional.

Invoices from other vendors from Alaina’s wedding were admitted into evidence. The total

amount of these invoices was $10,400.

¶18. On cross-examination, Alaina confirmed that she was satisfied with the work that

Casey did and that Casey supplied everything that Alaina wanted her to supply.

¶19. Jeff Hill, Alaina’s father, also testified for the defense. He testified that Alaina had

told him they did not need to worry about paying for the florist services, as follows: “The

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only thing I know is my daughter came in and said, Dad, we don’t have to worry about one

of the bills, the florist. I said, Okay. Why? She said, Because we traded a sectional for her

services. Traded some furniture [were] her exact words.” Mr. Hill also testified that the food

caterer, who also provides florist services in the area, “looked at the job and said it would’ve

been around $3,500.” The defense rested.

¶20. The plaintiff called Melissa Murphy, the owner of Amory Flower Shop in nearby

Amory, Mississippi, as a rebuttal witness. Ms. Murphy testified that she reviewed the

invoice Casey presented for Alaina’s wedding and that her own price would be more,

specifically $10,007.18, as compared to Casey’s total invoice of $8,872.44. Ms. Murphy also

testified that she charges a $750 setup-and-tear-down fee, as compared to the $500 fee Casey

charged, and that she added travel expenses separately. On cross-examination, Ms. Murphy

acknowledged that she generally makes it a practice to provide an estimate, but she has also

“done the very same thing Casey has done. There was no price ever mentioned. They want

what they want, and we provide the services.” The plaintiff then rested.

¶21. The trial court took the matter under advisement, and on May 14, 2018, the court

entered a judgment in favor of Casey & Co. The trial court found as follows:

1. The Plaintiff is a florist in Houston, Mississippi, who supplied flowers
for the wedding of the Defendant in Kilmichael, Mississippi. The
Defendant testified that she was satisfied with the service of the
Plaintiff for the wedding.

2. The Defendant has not paid the Plaintiff in full for her wedding,

3. The Defendant is in the retail furniture business. The Plaintiff and the
Defendant had an agreement that the Defendant would sell furniture
called a sectional to the Plaintiff for the sum of $3,799.00. The

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Defendant testified that the price did not include sales tax.

4. The Plaintiff’s testimony and the text messages between Plaintiff and
Defendant indicated that the cost of the sectional would be credited on
the final account for the wedding.

5. The Plaintiff tendered the statement of account to the Defendant in the
amount of $8,872.44. The account shows a credit for the sectional
applied in the amount of $3,799.00 with a final balance of $5,073.44.

6. The Plaintiff introduced into evidence an itemized statement of service
and time by her attorney.

The trial judge held that “Plaintiff should recover a judgment for the amount of $5,073.44,”

together with interest and costs, “and an attorney fee ($2,536.72, ½ of the balance sued for)

. . . for a total amount of $8,387.49.”

¶22. Alaina appealed, asserting that (1) the trial court erred by enforcing a contract where

both parties to the contract admitted there was no agreement as to price; (2) the trial court

erred by awarding an attorney’s fee where there was no statutory basis nor agreement to

support such an award; and (3) the trial court erred by awarding an attorney’s fee in the

absence of evidence of the McKee3 factors and with no McKee analysis.

¶23. For the reasons set forth below, we affirm the trial court’s decision that Casey & Co.

should recover a judgment for the amount of $5,073.44, together with interest and costs. We

reverse and render the trial court’s decision to award an attorney’s fee because we find that

attorney’s fees were not provide for by contract or statute.

STANDARD OF REVIEW

¶24. “The existence of a contract is a question of fact that is to be determined by a jury, or

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McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982).

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a trial judge when a trial is conducted without a jury.” Bert Allen Toyota Inc. v. Grasz, 909

So. 2d 763, 768 (¶12) (Miss. Ct. App. 2005). “The standard of review for factual

determinations made by the trial judge as the sole trier of fact in a bench trial is the

substantial evidence standard.” Delta Reg’l Med. Ctr. v. Taylor, 112 So. 3d 11, 19 (¶21)

(Miss. Ct. App. 2012) (internal quotation mark omitted). In this regard:

The findings of the trial judge will not be disturbed unless the judge abused his
discretion, was manifestly wrong or clearly erroneous or applied an erroneous
legal standard. A circuit court judge sitting without a jury is accorded the
same deference with regard to his findings as a chancellor, and his findings are
safe on appeal where they are supported by substantial, credible, and
reasonable evidence.

Id. at 19-20 (¶21) (citations and internal quotation marks omitted). “However, the Court

reviews conclusions of law . . . de novo.” Id. at 20 (¶21).

DISCUSSION

I. The Enforceability of the Agreement

¶25. Alaina asserts that the trial court erred in enforcing the agreement between her and

Casey because there was no agreement between them on the price of Casey’s florist services

and materials. In response, Casey asserts that the trial court did not abuse its discretion in

finding that the facts supported its determination that Casey should recover the remaining

balance of her bill, plus interest and costs, from Alaina. For the reasons addressed below,

we affirm the trial court’s judgment awarding $5,073.44 in Casey & Co.’s favor, together

with interest and costs.

¶26. We recognize that “[t]he elements of a valid contract are (1) two or more contracting

parties; (2) consideration; (3) an agreement that is sufficiently definite; (4) parties with the

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legal capacity to make a contract; (5) mutual assent; and (6) no legal prohibition precluding

contract formation.” Bert Allen Toyota, 909 So. 2d at 768 (¶12). In this case, Alaina asserts

that any agreement between her and Casey was not “sufficiently definite” because they did

not have any agreement as to the price of Casey’s florist services and materials. In support,

Alaina relies on Leach v. Tingle, 586 So. 2d 799 (Miss. 1991), a case in which the

Mississippi Supreme Court held that “price is an essential term [in a contract]. It must be

stated with specificity. Where it is not provided, the contract fails.” Id. at 803.

¶27. The supreme court also recognized in Leach, however, that “[t]his does not mean that

the price must be set out simply. Where, from the terms of the contract, one familiar with

elementary principles of mathematical reasoning may deduce with certainty the sales price,

the contract will not fail.” Id. Only “[w]here the language employed necessarily requires a

substantial measure of speculation and conjecture in ascertaining price, [will] the contract

fail[].” Id.

¶28. This concept is further developed in a respected treatise on contracts, as follows:

[A]lthough the necessity for definiteness may compel the court to find that the
language used is too uncertain to be given any reasonable effect, when the
parties’ language and conduct evidences an intent to contract, and there is
some reasonable means for giving an appropriate remedy, the court will strain
to implement their intent. Thus if a promise indefinite as to price is capable of
being made certain by an objective standard through extrinsic facts, it will be
enforced.

1 Williston on Contracts § 4:25, at 771-73 (4th ed. 1990) (emphasis added) (citations

omitted). In Denbury Onshore LLC v. Precision Welding Inc., 98 So. 3d 449 (Miss. 2012),

the Mississippi Supreme Court likewise recognized this principle, observing that “‘[i]f no

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statement as to the wages or price to be paid’ is listed, the court will ‘invoke a standard of

reasonableness so that the fair value of the services or property is recoverable.’” Id. at 454

n.21 (quoting 1 Williston on Contracts § 4:25, at 758-59 (4th ed. 1990)); see Pugh v.

Gressett, 136 Miss. 661, 101 So. 691, 698 (1924) (“An offer to sell goods need not specify

the price, for, if no price is stated, it will be presumed that the reasonable market price was

intended.”).

¶29. In this case, the trial court found that Casey’s testimony and the text messages

between Casey and Alaina “indicated that the cost of the sectional would be credited on the

final account for the wedding” and that the statement of account that Casey tendered to

Alaina showed that Casey applied a credit for the sectional sofa for the agreed upon amount

of $3,799.00, leaving a final balance of $5,073.44.

¶30. The trial court also heard the parties’ testimony and reviewed the evidence regarding

the conduct of the parties, including the meetings between Alaina and Casey, the numerous

photos Alaina gave to Casey to show her what she wanted at her wedding, and the copious

notes taken by Casey at her meetings with Alaina—evidence of conduct supporting the

parties’ “intent to contract” for the materials and services Casey provided.

¶31. Further, other than Alaina’s and her father’s testimonies, we find no evidence to

support a theory that the cost of the floral services were limited to the cost of the sectional

sofa. Instead, we find that the evidence supports the trial court’s determination that the

parties would settle up at the end. Indeed, the record reflects that Alaina and her father did

not want to know the costs of the floral services. Not only did Alaina fail to ever ask for a

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quote or a price on anything, but also the testimony, text messages, and Facebook messages

admitted at trial support the finding that Alaina did not have a price limit, but rather she was

going to get what she wanted regardless of the price—including flying floral leis in from

Hawaii.

¶32. The record also reflects that Alaina accepted the goods and services provided by

Casey & Co., Alaina was satisfied with the work that Casey did, and Casey supplied

everything that Alaina wanted her to supply.

¶33. Finally, Casey’s detailed statement of the account, itemizing each item furnished and

labor costs, provides the reasonable means to determine the cost so as to allow the trial court

to enforce the parties’ contractual intentions. Additionally, the testimony from Melissa

Murphy, the owner of Amory Flower Shop in nearby Amory, Mississippi, supports the trial

judge’s decision that the contract price was reasonable. See generally 1 Williston on

Contracts § 4:25, at 771-73 (4th ed. 1990).

¶34. In the light of our deferential review of the trial court’s findings, we find that

substantial, credible evidence supports the trial court’s judgment against Alaina for the

amount of $5,073.44, together with interest and costs. We further find that there was no

manifest error in the trial court awarding judgment in Casey & Co.’s favor.

II. Award of an Attorney’s Fee

¶35. Alaina asserts that there was no legal basis for an award of an attorney’s fee in this

case, and thus the trial court’s award of $2,536.72 in an attorney’s fee should be reversed and

rendered. We agree and find that the trial court’s legal conclusion that Casey was entitled

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to an attorney’s fee in this case was made in error.

¶36. In Tupelo Redevelopment Agency v. Gray Corp., 972 So. 2d 495 (Miss. 2007), the

supreme court held that “unless provided by statute or contract, or unless punitive damages

are awarded, attorneys’ fees may not be recovered.” Id. at 517 (¶68). In this case there is no

contractual provision allowing for the recovery of attorney’s fees, nor do we find that this

case involves an open account under Mississippi Code Annotated section 11-53-81 (Rev.

2012), as we address below.

¶37. This Court’s decision in Douglas Parker Electric Inc. v. Mississippi Design &

Development Corp., 949 So. 2d 874 (Miss. Ct. App. 2007), supports our determination that

this is not an open-account case. In Douglas Parker, this Court held that the trial court was

correct in determining that an agreement between a general contractor (MD&D) and a

subcontractor (Parker) to pump out a barge damaged in a hurricane was “an oral contract

rather than an open account.” Id. at 876 (¶8). In reaching this conclusion, this Court first

observed that “an open account must contain a ‘final and certain agreement on price.’” Id.

at 877 (¶8) (quoting McLain v. W. Side Bone & Joint Ctr., 656 So. 2d 119, 123 (Miss. 1995)).

We further observed that “an open account ‘results where the parties intend that the account

shall be kept open and subject to a shifting balance as additional related entries of debits or

credits are made, until it shall suit the convenience of either party to settle and close the

account.’” Id. (quoting Motive Parts Warehouse Inc. v. D & H Auto Parts Co., 464 So. 2d

1162, 1166 (Miss. 1985)).

¶38. Applying these principles to the facts before it, the Court found in Douglas Parker

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that “there [was] scant evidence to indicate that there was any discussion of the price of

Parker’s services, let alone a ‘final and certain agreement on price.’” Id. at 877 (¶9).

Continuing, the Court found that “[f]urthermore, there was no running balance of credits and

debits, nor was payment due at the convenience of either party. Instead, Parker understood

that it would be paid when the barge was sold.” Id. Even though Parker treated the

agreement as one on open account by sending a demand letter with its final invoices to

MD&D and then initiated a collection lawsuit when it got no response from MD&D, see id.

at 876 (¶4), this Court found that “the agreement between the parties was in the nature of an

oral contract rather than an open account.” Id. at 877 (¶9).

¶39. These same factors are present in this case. Both Casey and Alaina testified that there

was no agreement between them as to price except to the extent that the record showed that

Alaina specified exactly what she wanted regardless of the cost. Nor was there a “running

balance of credits and debits” or any testimony that either party believed “payment [was] due

at the convenience of either party.” Id. Instead, although the record reflects that Alaina

made additional requests and new floral items were added up until Alaina’s May 2016

wedding, Casey did not issue interim invoices with a running balance, nor did she request any

payment at all until the job was completed and she presented her final, itemized invoice, just

as Parker did in Douglas Parker.

¶40. In finding that the evidence herein establishes an oral contract but not an open

account, we conclude that the trial court erred in awarding an attorney’s fee to Casey & Co.

for an open account. We therefore reverse and render on this issue. In the light of this

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decision, we do not address Alaina’s final assignment of error asserting that in awarding an

attorney’s fee, the trial court erred in failing to utilize the McKee factors. See McKee, 418

So. 2d at 767.

¶41. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

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