Designer Custom Homes, LLC v. U.S. Coating Specialties & Supplies, LLC

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00207-COA

DESIGNER CUSTOM HOMES, LLC APPELLANT

v.

U.S. COATING SPECIALTIES & SUPPLIES, APPELLEE
LLC

DATE OF JUDGMENT: 01/27/2023
TRIAL JUDGE: HON. DAVID ANTHONY CHANDLER
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: PATRICK VANCE DALY
ATTORNEY FOR APPELLEE: BRYANT DONLEVY GUY
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: REVERSED AND RENDERED - 06/04/2024
MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., WESTBROOKS AND SMITH, JJ.

WILSON, P.J., FOR THE COURT:

¶1. U.S. Coating Specialties & Supplies LLC (USCSS) refused to pay money owed to

Designer Custom Homes LLC (DCH) under a contract, so DCH sued USCSS in county

court. The county court granted DCH’s summary judgment motion and entered a judgment

for DCH in the amount of $121,480.92, including prejudgment interest, penalties, costs, and

attorney’s fees. USCSS appealed to circuit court, arguing that the county court erred by

granting summary judgment “when [USCSS] had not been permitted to conduct discovery.”

The circuit court reversed, though not on the ground raised by USCSS. Rather, the circuit

court reversed based on a perceived issue of fact that the court raised sua sponte.

¶2. The circuit court erred by reversing based on an issue and argument that USCSS did
not raise in the county court or on appeal. The circuit court also erred because there is no

genuine issue of material fact. Therefore, we reverse the decision of the circuit court and

render judgment affirming the county court’s judgment in favor of DCH.1

FACTS AND PROCEDURAL HISTORY

¶3. USCSS subcontracted with DCH to install drywall at the Continental Tire plant in

Clinton. During the performance of the subcontract, DCH submitted seven invoices to

USCSS. USCSS paid the first four invoices but refused to pay the last three invoices, which

totaled $69,114.18. In October 2019, DCH sued USCSS in the County Court of Hinds

County for breach of contract and quantum meruit. DCH’s complaint sought the balance due

on the invoices plus interest, penalties, and attorney’s fees.

¶4. USCSS failed to timely answer the complaint, and DCH obtained a clerk’s entry of

default. DCH then moved the court for a default judgment against USCSS, requesting a

judgment for $110,393.51, inclusive of the debt owed to DCH, prejudgment interest,

penalties, costs, and attorney’s fees. In response, USCSS filed an out-of-time answer without

leave of court and denied liability.

¶5. Three months later, DCH filed a motion for summary judgment. In support of its

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When we, in effect, render an affirmance of the county court’s judgment, “the
mandate may go directly to the county court.” Miss. Code Ann. § 11-51-79 (Rev. 2019)
(“When the result of an appeal . . . shall be a reversal of the lower court and in all material
particulars in effect an affirmance of the judgment or decree of the county court, the mandate
may go directly to the county court . . . .”); see Martin v. Motors Ins. Corp., 219 Miss. 473,
480, 68 So. 2d 869, 872 (1954) (“[T]he judgment of the circuit court is reversed and
judgment rendered here for the appellant, which is in effect an affirmance of the judgment
of the county court. The judgment of this Court being in effect an affirmance of the
judgment of the county court, the mandate will be issued direct to that court.”).

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motion, DCH itemized the following undisputed, material facts: (1) “DCH and [USCSS]

entered into a Service Contract where DCH was to perform sheetrock work”; (2) “DCH

properly and appropriately performed certain sheetrock and other related work . . . and

submitted invoices accordingly, . . . but [USCSS] . . . failed and refused to pay the remaining

three . . . invoices for the work performed . . . in the total principal amount of $69,114.18”;

and (3) USCSS owed costs, interest, and penalties in addition to the amount due under the

parties’ contract. The contract, unpaid invoices, an account statement, a prior demand letter,

and a calculation of damages were filed as exhibits to the motion.

¶6. In support of the motion, DCH also attached an affidavit from Christine Bridges, a

member of DCH “familiar with the [USCSS] account.” Bridges stated under oath “that the

facts stated in” specified paragraphs of DCH’s summary judgment motion were “true and

correct” and that the other exhibits to the motion were “true and correct copies” of the

relevant documents.

¶7. USCSS filed a response asserting that DCH “was overpaid on invoices 1-4,” that

DCH’s “work . . . was not accepted by the owner,” and that DCH “was released from the job

site for unsatisfactory dry wall finishing.” However, USCSS submitted no affidavits or any

other competent evidence in support of its response. Rather, the only exhibit to the response

was a one-page, unsigned, unsworn document that included the style of the case and some

unsupported calculations that purported to show that DCH was overpaid for the work it

satisfactorily performed. Nothing in the record shows who created the document.

¶8. The county court held a combined hearing on DCH’s motions for a default judgment

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and summary judgment. Following the hearing, the court granted summary judgment in

favor of DCH because there were “no genuine issues of material fact,” and DCH was

“entitled to judgment as a matter of law.” The court entered a judgment in favor of DCH for

$121,480.92, including prejudgment interest, penalties, costs, and attorney’s fees.

¶9. USCSS filed a notice of appeal to the circuit court. The clerk filed the record on

appeal in October 2020, but USCSS took no action on the appeal for nearly two years. In

August 2022, DCH moved to dismiss the appeal for want of prosecution, but the circuit court

denied the motion to dismiss. In its brief on appeal to the circuit court, USCSS argued: “The

county court erred in finding no genuine issues of material fact existed, and thereby

granting the appellee’s motion for summary judgment, when the appellant had not been

permitted to conduct discovery.” (Italics added). USCSS’s four-page appellate brief did not

identify any specific facts actually in dispute or any competent evidence that raised a genuine

issue of material fact. Rather, USCSS cited caselaw holding that it is error to grant summary

judgment without giving the non-movant a sufficient opportunity to conduct discovery.

¶10. In its brief in the circuit court, DCH argued that USCSS’s argument failed for three

reasons: (1) USCSS waived the issue by failing to raise it in the county court,2 (2) USCSS

never pursued discovery while the case was pending in the county court, and (3) USCSS

failed to submit any affidavits or other competent evidence in response to DCH’s motion for

summary judgment.

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DCH was correct on this point. USCSS’s response in opposition to DCH’s motion
for summary judgment did not argue that the motion should be denied because discovery
was needed. Indeed, the word “discovery” does not appear in the county court record.

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¶11. The circuit court held oral argument in the appeal. Counsel for USCSS again argued

that the county court erred by granting summary judgment without allowing discovery, and

counsel for DCH responded that USCSS’s argument failed for the three reasons discussed

in DCH’s brief. But during DCH’s argument, the circuit judge raised a wholly different

issue, stating that there was “some doubt in [his] mind pertaining to the accuracy of one

exhibit” to DCH’s summary judgment motion. Specifically, the judge noted that one invoice

included a charge for 41 hours of labor by three workers at a rate of $20 per hour for a total

of $2,460, but the following highlighted notation appeared next to the charge: “this should

be 41 hrs @ $20.00 hr, the work order was for only one worker.” The judge asked DCH’s

attorney to explain the notation, and counsel acknowledged that he could not explain it. But

counsel also noted, “[T]hey [(i.e., USCSS)] haven’t even argued that on appeal.”

¶12. Following oral argument, the circuit court issued an opinion reversing the grant of

summary judgment. The judge discussed USCSS’s actual argument on appeal—that the

county court erred by granting summary judgment without permitting discovery—as well as

DCH’s response. But the judge then stated,

The lack of a plausible explanation pertaining to the highlighted statement on
the exhibit remains. When asked about the statement at the hearing before this
Court, the lawyer for DCH stated that [USCSS] failed to dispute it, so it could
not serve as a basis for a genuine dispute of a material fact. With no clear
explanation of the highlighted statement, doubt as to whether summary
judgment is proper lingers. When there is doubt, the standard is to err on the
side of denying the motion for summary judgment.

(Paragraph break omitted). DCH filed a notice of appeal, and the Supreme Court assigned

the appeal to this Court.

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ANALYSIS

¶13. On appeal, DCH argues that the circuit court erred by raising an issue and argument

sua sponte that USCSS did not raise in the county court or on appeal to the circuit court.

DCH also argues that there was no genuine issue of material fact to preclude summary

judgment.3

¶14. On the first point, we agree with DCH. “It is a long-established rule in this state that

a question not raised in the trial court will not be considered on appeal.” Adams v. Bd. of

Supervisors of Union Cnty., 177 Miss. 403, 170 So. 684, 685 (1936); see also, e.g., Kimball

Glassco Residential Ctr. Inc. v. Shanks, 64 So. 3d 941, 948 (¶22) (Miss. 2011) (“[I]ssues not

raised in the trial court are barred from consideration at the appellate level.”). “A trial judge

cannot be put in error on a matter which was never presented to him for decision.” Methodist

Hosps. of Memphis v. Guardianship of Marsh, 518 So. 2d 1227, 1228 (Miss. 1988). In the

county court, USCSS failed to present an affidavit or any other evidence to contest any

specific charges in the invoices relied on by DCH. Rather, USCSS simply made a broad

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USCSS’s brief is a ship passing in the night. It fails to discuss either the basis of
the circuit court’s ruling or DCH’s arguments. Rather, with some minor changes, USCSS
simply recycles the four-page brief it filed in the circuit court, arguing that the county court
erred by granting summary judgment “when [USCSS] had not been permitted to conduct
discovery.” (Emphasis omitted). This argument is without merit because, as noted above
(see supra note 2), USCSS failed to raise the issue in the county court. Moreover, a party
opposing summary judgment based on an alleged need for discovery “must present specific
facts why he cannot oppose the motion and must specifically demonstrate how
postponement of a ruling on the motion will enable him, by discovery or other means, to
rebut the movant’s showing of the absence of a genuine issue of fact.” Rainer v. River Oaks
Hosp. LLC, 282 So. 3d 751, 757 (¶20) (Miss. Ct. App. 2019) (quoting Scales v. Lackey
Mem’l Hosp., 988 So. 2d 426, 434 (¶19) (Miss. Ct. App. 2008)). USCSS failed to raise this
issue in the county court and has never made such a showing.

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argument—again, unsupported by any affidavit or any other evidence—that DCH had been

overpaid and performed unsatisfactory work. Therefore, the circuit court erred by raising a

new issue—the significance of a notation regarding one line item on one invoice—for the

first time on appeal. The circuit court also erred by raising the issue sua sponte because, as

discussed above, USCSS did not even raise or brief the issue on appeal. As our Supreme

Court has explained, an appellate court will not “address an issue that has not been briefed

on appeal” because the court “will not act as an advocate for one party to an appeal.”

Rosenfelt v. Miss. Dev. Auth., 262 So. 3d 511, 519 (¶27) (Miss. 2018). The circuit court’s

error in raising this issue sua sponte is, by itself, a sufficient reason to reverse the decision

of the circuit court and reinstate the judgment of the county court.

¶15. We also conclude that the circuit court erred by finding that there is a genuine issue

of material fact. We review an order granting summary judgment de novo, viewing the

evidence in the light most favorable to the non-moving party. Maness v. K & A Enters. of

Miss. LLC, 250 So. 3d 402, 409 (¶16) (Miss. 2018). Summary judgment “shall” be granted

“if the pleadings, depositions, answers to interrogatories and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The moving

party bears the burden to persuade that there is no genuine issue of material fact. Maness,

250 So. 3d at 409 (¶17). The moving party “also bears the burden of production at summary

judgment” if it “would bear the burden of proof” at trial. Id.

¶16. In responding to a motion for summary judgment, the non-moving party “may not rest

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upon the mere allegations or denials of [its] pleadings, but [its] response, by affidavits or as

otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine

issue for trial.” M.R.C.P. 56(e). The nonmoving party must therefore come forward with

“significant probative evidence showing that there are indeed genuine issues for trial.” Price

v. Purdue Pharma Co., 920 So. 2d 479, 485 (¶16) (Miss. 2006) (quoting McMichael v.

Nu-Way Steel & Supply Inc., 563 So. 2d 1371, 1375 (Miss. 1990)). “Such things as

admissions in pleadings, answers to interrogatories, depositions, and affidavits can all be

presented to the trial court to prove or disprove a genuine issue of material fact.” Dew v.

Tchula Grain Co., 812 So. 2d 1014, 1017 (¶7) (Miss. Ct. App. 2001). But a “genuine” issue

of fact exists only when “the evidence is such that a reasonable jury could return a verdict

for the nonmovant.” Brown Lakeland Props. v. Renasant Bank, 243 So. 3d 784, 790 (¶17)

(Miss. Ct. App. 2018) (quoting Frazier v. McDonald’s Rests. of Miss. Inc., 102 So. 3d 341,

345 (¶21) (Miss. Ct. App. 2012)).

¶17. “A breach-of-contract case has two elements: (1) the existence of a valid and binding

contract, and (2) a showing that the defendant has broken, or breached it.” Maness, 250 So.

3d at 414 (¶43). To meet its burdens of production and persuasion, DCH submitted copies

of the parties’ contract, DCH’s unpaid invoices, and an account statement, along with an

affidavit from Bridges to authenticate the documents. Bridges’s affidavit also attested to the

critical facts underlying DCH’s complaint and motion for summary judgment. Bridges

verified that “pursuant to [the parties’ contract], DCH properly and appropriately performed

certain sheetrock and other related work . . . and submitted invoices accordingly.” Bridges

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also verified that USCSS “paid the first four invoices submitted, but . . . failed and refused

to pay the remaining three (3) invoices for the work performed . . . in the total principal

amount of $69,114.18.”

¶18. In its response to the summary judgment motion, USCSS “denie[d]” the motion’s

factual assertions and “assert[ed] that [DCH had been] overpaid” and that its “work was not

accepted by the owner.” However, USCSS submitted no evidence to support any of its

denials or assertions. Rule 56 makes clear that the non-moving party “may not rest upon the

mere allegations or denials of [its] pleadings, but [its] response, by affidavits or as otherwise

provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for

trial.” M.R.C.P. 56(e). Yet that is exactly what USCSS did in this case. USCSS submitted

only one document that an unidentified person apparently created during this litigation. The

document purports to show calculations related to amounts paid and owed (or not owed)

under the parties’ contract, but the document is not signed, sworn, or explained. In short, the

document is nothing more than a piece of paper summarizing USCSS’s mere allegations and

denials. Such a document is “not competent [evidence] to oppose summary judgment.”

Handy v. Madison Cnty. Nursing Home, 192 So. 3d 1005, 1010 (¶16) (Miss. 2016); see also

Hickerson v. State, 336 So. 3d 1134, 1142 (¶20) (Miss. Ct. App. 2022) (an unsworn

“affidavit” has “no legal effect”). “Materials such as depositions, answers to interrogatories,

and affidavits must be sworn, made upon personal knowledge, and show that the party giving

them is competent to testify.” Handy, 192 So. 3d at 1010 (¶16) (quotation marks omitted).

Because USCSS rested merely upon its own allegations and denials, and because USCSS

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submitted no evidence to contradict the showing made in DCH’s motion, the county court

properly granted DCH’s motion for summary judgment.

¶19. As described above, the circuit court, sitting as an appellate court, sua sponte queried

whether a notation next to a single line item on one invoice raised a genuine issue of material

fact. But there is nothing in the record to explain that notation, and there is no evidence in

the record that USCSS disputed that particular charge. Moreover, Bridges’s affidavit affirms

that USCSS owed DCH the total amounts billed on the invoices to USCSS and shown on

USCSS’s account statements. USCSS submitted no evidence to contradict Bridges’s

affidavit. Accordingly, there was simply no “significant probative evidence showing that

there are indeed genuine issues for trial.” Price, 920 So. 2d at 485 (¶16). Therefore, the

county court properly granted DCH’s motion for summary judgment.

CONCLUSION

¶20. The circuit court erred by reversing based on an issue and argument that were neither

raised in the county court nor briefed on appeal. The circuit court also erred by finding that

the record evidence presented a genuine issue of material fact. Therefore, we reverse the

decision of the circuit court and render judgment affirming the county court’s judgment in

favor of DCH. See supra note 1.

¶21. REVERSED AND RENDERED.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD,
LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.

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