Ernest Lane, III v. Ronald D. Lampkin , 234 So. 3d 338 ( 2017 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-CA-00941-SCT
ERNEST LANE, III, AS EXECUTOR OF THE
ESTATE OF JAMES OLDRUM SMITH, JR. AND
LIMESTONE PRODUCTS, INC.
v.
RONALD D. LAMPKIN
DATE OF JUDGMENT: 05/20/2016
TRIAL JUDGE: HON. GEORGE WARD
COURT FROM WHICH APPEALED: WARREN COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: HARRIS H. BARNES, III
JAMES WILLIAMS JANOUSH
ATTORNEYS FOR APPELLEE: DAVID W. MOCKBEE
D. WESLEY MOCKBEE
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN PART
AND REVERSED AND RENDERED IN PART.
ON CROSS-APPEAL: AFFIRMED - 07/20/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE DICKINSON, P.J., KING AND CHAMBERLIN, JJ.
CHAMBERLIN, JUSTICE, FOR THE COURT:
¶1. The Chancery Court of Warren County, First Judicial District, found that Ronald
Lampkin had breached his fiduciary duties to Limestone Products, Inc. (“Limestone”).1
Lampkin and James Oldrum Smith Jr. jointly owned and operated Limestone with a line of
1
A portion of the facts below is adapted from Lane v. Lampkin, 175 So. 3d 1222,
1223 (Miss. 2015) (Lampkin II), and a portion of the facts is quoted verbatim from our
previous opinion.
credit personally guaranteed by each of them. Upon Smith’s death and his estate’s refusal to
guarantee the line of credit, Lampkin formed Delta Stone, a new corporation which operated
on the same property, used the same facilities, and sold rock to the same clients to whom
Limestone had sold.
¶2. Lampkin sought a declaratory judgment against the estate that he was not violating his
fiduciary duties to Limestone. The executors of the estate counterclaimed for lost profits and
attorney’s fees. At the liability stage of the bifurcated trial, the chancellor determined that
Lampkin had breached his fiduciary duty to Limestone by usurping a corporate opportunity.
In the damages, stage of the trial, the chancellor considered expert testimony, awarded
damages, and denied the executors’ request for attorney’s fees, expert-witness fees, and
punitive damages. The executors appealed and the Court of Appeals affirmed. Lane v.
Lampkin, 176 So. 3d 62, 75 (Miss. Ct. App. 2014) (Lampkin I). This Court granted
certiorari, reversed the Court of Appeals and found that the chancellor had abused his
discretion in calculating the damages award. Lampkin II, 175 So. 3d at 1231. This Court
remanded for the chancellor to re-evaluate damages. Id.
¶3. On remand, the chancellor reassessed the damages due to Limestone as a result of
Lampkin’s breach of his fiduciary duties. Aggrieved, the executors appeal again. As
explained below, we affirm in part and reverse and render in part.
FACTS AND PROCEDURAL HISTORY
¶4. Quoting from Lampkin II:
In 1995, Lampkin and Smith formed Limestone, which they operated on land
they jointly owned in Warren County. Lampkin and Smith each owned a
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one-half interest in the corporation, which bought and sold rocks. Lampkin
also owned Lampkin Construction, which became one of Limestone’s biggest
customers.
For ten years, Limestone operated on a line of credit personally
guaranteed by both Lampkin and Smith. The line of credit was
set to expire in September 2006. In August 2006, Smith died,
and his stock in the corporation and his interest in the real
property transferred to the Estate. Prior to the expiration of
Limestone’s line of credit, Lampkin secured an extension until
December 8, 2006, to provide the Estate with time to determine
whether it would guarantee the loan. Between September 2006
and December 2006, the parties discussed renewing the line of
credit. However, the Estate failed to provide a guarantee before
the deadline. Lampkin then formed a new corporation, Delta
Stone, which began operating in January 2007. Delta Stone
performed the same functions as Limestone, and through his new
company, Lampkin completed Limestone’s contracts and
satisfied its debt obligations.
Lampkin filed a lawsuit against the Executors in Warren County
Circuit Court. . . . The Executors filed a counterclaim against
Lampkin for present and future profits the corporation lost due
to Lampkin’s actions and for attorney[’]s[] fees. [O]ne of the
[E]xecutors[] also filed a motion to transfer the matter to Warren
County Chancery Court.
The circuit court judge entered an order finding the matter to be
proper for a declaratory judgment. Further finding that the
chancery court possessed proper jurisdiction over the subject
matter of the declaratory-judgment action, the circuit court judge
granted the motion to transfer the matter to chancery court. In an
order entered by the Warren County Chancery Court, all the
chancellors recused themselves from the case, and the
Mississippi Supreme Court appointed a special judge to preside
over the proceedings.
...
Following the chancellor’s ruling that Lampkin breached his
fiduciary duty to Limestone by starting Delta Stone and usurping
a corporate opportunity, the parties presented evidence as to the
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damage that resulted from Lampkin’s breach of duty. Both
parties hired an expert to testify as to the valuation of Limestone.
Lampkin hired Brent Saunders, and the Executors hired James
Koerber. The chancellor accepted both experts as certified
public accountants and experts in the field of business valuation.
. . . Koerber’s expert report indicated that between 2000 and 2007, Limestone’s
average net income was $20,914.00. Koerber opined that, in total, 649,203 tons
of rock were diverted from Limestone between 2003 and 2011. This
unreported rock was, beginning in 2007, diverted to Delta Stone: “you’ve got
all of this unreported rock that went through say Delta [S]tone and then some
that should have been attributable to Limestone.” Based on the unreported
rock, Koerber testified that Limestone had incurred lost-profit damages of
$1,095,281. Additionally, Koerber calculated that the lost-profit damages from
2011 through 2012 had been $270,804.00, which he based on “the average of
2007, 2008, 2009, and 2010’s lost profits.” Koerber estimated that lost profits
amounted to $1,366,085, which he rounded down to $1,366,000. He then
added $169,129 to that figure to account for loss of assets, bringing the total
loss to $1,535,129. The chancellor indicated in his valuation order that “the
Smith estate’s portion, based on Koerber’s figures, would be $767,564.50.”
Saunders, Lampkin’s expert, testified that the rock was not “unreported,” as
Koerber had stated, but that Lampkin had “moved the tons from Limestone to
Delta Stone.” According to Saunders, the tons of rock “may be unreported in
Limestone but we’ve got a accounting and analysis” which shows that “they
just moved over to Delta Stone because [Lampkin] kept on running the thing
just like he was doing before.” Instead of conducting a lost-profits analysis,
Saunders conducted a valuation of the “net book value” of Limestone. As of
2006, the year Smith died, Saunders opined that the net book value was
$165,000. The 2007 valuation, according to Saunders, was $156,000.
According to the chancellor, “[a]fter deductions, Saunders added the value of
the corporation’s remaining assets” and “arrived at a total net book value of
$125,546.32.” Saunders stated that $62,773.16 was owed to the Smith estate.
The chancellor then conducted an independent assessment of the damages,
which he chronicled in a Judgment on Valuation of Business. He
acknowledged Saunders’s calculation of net book value, including deductions,
at $125,546.32. He opined that “in making an assessment of lost profits from
January 1, 2008[,] forward the more fair assessment of damages would be that
of historical lost profits.” He then took into consideration Koerber’s calculation
of average yearly net income of $20,914, multiplied that figure by five,
representing the years 2008 through 2012, and concluded that the “historical
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lost profits” amounted to $104,570. Therefore, “[u]tilizing the net book value
provided by Saunders, in addition to the historical costs, the Court finds that the
total sum of damages due to Limestone Products totals $230,116.32.” The
chancellor ordered Lampkin to pay $230,116.32 [to Limestone] “as a result of
his usurpation of corporate opportunity,” or otherwise $115,058.16 [to the
Estate], in the event the parties reached an agreement to dissolve the
corporation. The chancellor denied the executors’ request for attorney[’]s[]
fees, expert-witness fees, and punitive damages.
Aggrieved, the executors appealed the chancellor’s judgment, and the case was
assigned to the Court of Appeals. The Court of Appeals affirmed, finding that
the chancellor had not abused his discretion in the methods he employed to
assess the damages owed to Smith’s estate, in determining that Lampkin’s
expert had accounted for the unreported rock, in failing to award damages
based on unpaid rent due to Limestone, and in failing to award costs to Smith’s
estate. After filing the requisite motion for rehearing in the Court of Appeals,
the executors timely filed [a] . . . petition for a writ of certiorari . . . . The
executors of Smith’s estate assert[ed] that the chancellor employed the wrong
analysis in assessing damages, that the chancellor failed to take into account the
unreported rock in assessing damages, that the chancellor failed to award
damages based on unpaid rent due to Limestone, and that the chancellor failed
to award attorneys’ fees, expert-witness fees, and punitive damages to the
Smith Estate.
Lampkin II, 175 So. 3d at 1223–27 (quoting Lampkin I, 176 So. 3d at 88–91).
¶5. In Lampkin II, this Court reversed the judgment of the Court of Appeals and found
that the chancellor had abused his discretion in awarding damages. Lampkin II, 175 So. 3d
at 1231. This Court held that
The chancellor’s calculation of “historical net book value” was misleading
because it did not account for a rock price increase after Lampkin’s breach, and
also because it was, without explanation, based only on the years 2008 through
2012. The chancellor’s business valuation ignored our precedent which
instructed him to calculate the “entire loss suffered by the corporation” as a
result of Lampkin’s breach of fiduciary duty and usurpation of corporate
opportunity.
Id. at 1229–30. This Court also remanded for the chancellor “to take into account the
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unreported rock in his calculation of lost future profits” and “reconsider whether the Smith
estate is entitled to lease proceeds from 2007 . . . onward” Id. at 1230-31. In sum, the
chancellor on remand was to evaluate the “entire loss” to Limestone by considering: (1) the
rock price increase after Lampkin’s breach, (2) the time frame of the loss, (3) the unreported
rock and (4) the lease.
¶6. Upon remand from Lampkin II, the chancellor, by agreed order, allowed Lampkin to
amend his complaint. In the amended complaint, Lampkin requested that he receive the
“reasonable rental value” for his one-half interest in the property that was subject to the lease
from Big River Shipbuilders, one of Smith’s businesses that also operated on the same
property.
¶7. On May 23, 2016, the chancellor entered his Judgment on Remand. At the outset, the
chancellor recognized that the parties had determined the record was complete and had
provided additional briefing and argument in the form of proposed judgments. After a review
of the record, though, we did not find any proposed judgments from the parties. Lampkin
submitted an additional brief to the chancellor before his Judgment on Remand. No additional
briefing or supplementation from the estate is in the record. The chancellor also recognized
that this Court instructed him to evaluate the entire loss suffered by Limestone.
¶8. The chancellor first valued the damages due to the estate for lost assets at $36,811.50.
This figure was calculated by examining Limestone’s assets on December 31, 2006, and
subtracting Limestone’s assets it still had in 2012 along with various expenses the estate owed
Limestone.
6
¶9. Next, the chancellor calculated the entire loss suffered by Limestone. Under this
calculation, Limestone was owed $288,177.02, of which the estate was owed
half—$144,088.51. In calculating this figure, the chancellor found that the damages period
for lost profits should be calculated from 2007 through 2012. To calculate Limestone’s lost
profits, the chancellor used Koerber’s figure of 89.15 percent for the cost of goods sold by
Limestone. The chancellor then added an amount for shrinkage, the amount of rock lost in
transport to Limestone, arriving at a total figure of 90 percent for the cost of goods sold. The
chancellor noted that this figure was less than the actual cost of goods sold by Limestone and
Delta for the years 2007 and 2008. The chancellor next calculated the average operating
expense per year at $281,055.40 by averaging five years of actual expenses from the
companies from 2003 through 2007. Again, the chancellor noted that this number was
somewhat lower than the actual sales reflected by Delta Stone. Using these figures, the
chancellor estimated the lost profits due to Limestone as $240,147.52.
¶10. The chancellor then turned to the issue of unreported rock. Beginning his analysis, the
chancellor recognized, “this court does not find that either Lampkin or Smith operated
Limestone Products to either shareholder’s detriment in the period before . . . Smith’s death
in August of 2006.” After reviewing the expert reports, the chancellor determined that he
could account for all but 36,000 tons of unreported rock, which he valued at $36,000 per an
early agreement by Lampkin and Smith that Lampkin could purchase his rock at $1 per ton
plus costs. The estate, therefore, was owed $18,000 for the unreported rock under the
chancellor’s calculations.
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¶11. The chancellor next analyzed the amount due Limestone under the lease agreement.
Recognizing a partition judgment, entered on November 9, 2011, held that Lampkin was the
sole owner of the land on which Limestone had operated, the chancellor calculated the amount
of rent due to the estate from 2007 through November 2011. Under the lease, the estate was
due $2,000 a month, which totaled $118,000.
¶12. Last, the chancellor found that Lampkin was entitled to a $96,000 setoff—for
management of Limestone after Smith’s death—which would be applied against the estate’s
damages award. Applying this setoff, the chancellor determined that the estate was owed
$220,900.01.
¶13. Aggrieved, the estate now appeals and Lampkin cross-appeals. The estate raises
several issues which we restate for clarity. First, the estate argues that the chancellor erred
in his lost-assets calculation. Second, the estate maintains that the chancellor erred in
calculating the lost profits due to Limestone. Third, the estate finds error in the chancellor’s
valuation of the unreported rock. Fourth, the estate argues that the chancellor erred in his
calculation of damages under the lease. Fifth, the estate claims that the chancellor should
have awarded it attorney’s fees. In response, Lampkin cross-appeals one issue, arguing that
the chancellor erred in his calculation of damages under the lease.2
STANDARD OF REVIEW
¶14. “We always review a chancellor’s findings of fact, but . . . will not disturb the factual
2
We note that, while both parties cite the record in Lampkin II (Cause No. 2013-CT-
00554-SCT), neither party moved this Court to consolidate the prior record with the current
appeal. We have, however, considered the prior record in our review of this appeal.
8
findings of a chancellor when supported by substantial evidence unless [we] can say with
reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly
erroneous, or applied an erroneous legal standard.” Lane v. Lampkin, 175 So. 3d 1222, 1227
(Miss. 2015) (internal quotations omitted). This Court reviews questions of law under a de
novo standard. Id. Further,
[i]n the context of a damages assessment, which is a finding of fact, “the
appellate court must review the damages award by looking to the ‘facts of each
case.’” We have held that “damage awards are only overturned when the trial
judge has abused his discretion or ‘in exceptional cases where such awards are
so gross as to be contrary to right reason.’”
Id. (quoting Greater Canton Ford Mercury, Inc. v. Lane, 997 So. 2d 198, 206 (Miss. 2008);
Texaco, Inc. v. Addison, 613 So. 2d 1193, 1202 (Miss. 1993)).
ANALYSIS
I. Lost Assets Calculation
¶15. The estate first argues that the chancellor erred by reducing the lost-assets calculation
by $55,104 in his judgment on remand. Lampkin agrees that $55,104 was incorrectly
deducted from the asset calculation. Therefore, we reverse and render on this issue and hold
that one-half, $27,552, should be added back to the amount due to the estate for a lost-assets
total of $64,363.50.
II. Lost Profits
¶16. In Mississippi, a party may recover for loss of future profits “as long as such profits
are proved with reasonable certainty, not based on speculation or conjecture.” Lovett v. E.L.
Garner, Inc., 511 So. 2d 1346, 1353 (Miss. 1987). “This Court has stated that ‘there are no
9
guidelines set in stone specifying the degree of certainty that we require of parties in proving
loss of future profits.’” Lane v. Lampkin, 175 So. 3d 1222, 1228 (Miss. 2015) (quoting
Lovett, 511 So. 2d at 1353). Further, “the degree of proof required usually depends on the
particular facts of the case.” Lovett, 511 So. 2d at 1353. This Court has been clear that:
Liability cannot be escaped on the grounds that the proof as to the amount of
damages, if any, is too uncertain to justify the lower court’s award. It is well
recognized that “Mississippi is equally firm in its determination that a party will
not be permitted to escape liability because of the lack of a perfect measure of
damages his wrong has caused.”
R & S Dev., Inc. v. Wilson, 534 So. 2d 1008, 1012 (Miss. 1988) (quoting Johnston v. Safeco
Ins. Co. of Am., 727 F.2d 548, 551 (5th Cir. 1984)).
¶17. Within the context of recovering lost profits due to a breach of fiduciary duty, this
Court has recognized that:
Although recovery of profits may be awarded where one who breaches a
fiduciary obligation makes profits in excess of the loss caused by the breach,
. . . one who breaches a fiduciary obligation is responsible for the entire loss
suffered by the corporation as a result of the breach. This liability is not limited
to the recovery of profits or to “out-of-pocket” loss.
Aqua-Culture Techs., Ltd. v. Holly, 677 So. 2d 171, 183–84 (Miss. 1996) (quoting Norte &
Co. v. Huffines, 288 F. Supp. 855, 864 (S.D.N.Y. 1968)). The Huffines court found that, in
the context of a shareholders’ derivative suit, the “entire loss suffered by the corporation” as
a result of a fraudulent stock exchange should be “measured under the ‘loss of the bargain’
rule.” Huffines, 288 F. Supp. at 864. Within this context, the damages due to a corporation
are measured by the difference between the value of what the corporation would have
received if the false and misleading representations as to the value of the stock were true and
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the value of what the corporation actually received. Id.
¶18. While lost profits due to a usurped corporate opportunity cannot be measured in exactly
the same manner as damages due to a fraudulent exchange of stock, the principle undergirding
the “loss of the bargain” rule applies here. The estate is due damages calculated as one-half
of the difference between the value of the lost profits Limestone would have received if
Lampkin had not usurped Limestone’s corporate opportunity and the value of what Limestone
actually did receive. See Huffines, 288 F. Supp. at 864. Here, the chancellor’s award accords
with this principle and was not an abuse of the chancellor’s discretion.
¶19. The chancellor consistently cited the fact that he was calculating the entire loss to
Limestone pursuant to this Court’s instructions on remand. In order to do this, the chancellor
looked to the evidence in the record to calculate two figures: (1) the cost of goods combined
with the shrinkage factor and (2) the average operating expense figure. The chancellor used
portions of Koerber’s reports to calculate these two figures. Next, the chancellor used these
figures and the gross sales from Delta Stone for the years 2007 through 2011 to calculate the
lost profits due to Limestone.
¶20. The estate strenuously argues that the chancellor’s reliance on these figures from
Koerber’s financial analysis was error. The estate argues that, instead, the chancellor should
have accepted Koerber’s calculation of lost profits in his forensic analysis. It is settled law,
however, that the admission or exclusion of expert testimony is within the discretion of the
chancellor. Giannaris v. Giannaris, 960 So. 2d 462, 469 (Miss. 2007). The chancellor did
not accept a large portion of the factual allegations concerning unreported rock on which
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Koerber’s forensic analysis primarily was based. For instance, the chancellor specifically
found that neither Lampkin nor Smith, before Smith’s death in August of 2006, operated
Limestone to the detriment of the other shareholder. Further, we note that the chancellor
specifically reincorporated his initial findings concerning the credibility of the expert
witnesses into the Judgment on Remand.
¶21. The chancellor did not abuse his discretion by performing his own calculation of lost
profits derived from the expert reports and testimony before him. On remand, the parties
chose not to supplement the record with any additional analysis or reports. Indeed, it appears
that the estate did not file anything at all before the chancellor entered his Judgment on
Remand. Even now on appeal, the estate has failed to cite any authority in its briefs
concerning why the chancellor erred by using figures from Koerber’s financial analysis and
not his forensic analysis. This Court consistently has held that “[f]ailure to cite legal authority
in support of an issue is a procedural bar on appeal.” Webb v. DeSoto Cty., 843 So. 2d 682,
685 (Miss. 2003) (citing McClain v. State, 625 So. 2d 774, 781 (Miss.1993)). The lost-profits
calculation that the estate argues that the chancellor should have accepted on remand was
unreasonable, as the estate merely relied, once again, on the same expert testimony and reports
much of which the chancellor already had rejected in his initial judgment. These findings by
the chancellor were unaffected by this Court’s remand. Lampkin II, 175 So. 3d at 1229–30.
¶22. The chancellor’s calculation of $240,147.52 as Limestone’s lost profits is not an abuse
of discretion. The chancellor used the actual profit figures from Delta Stone to calculate the
entire lost profits Limestone would have received had Lampkin not usurped Limestone’s
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corporate opportunity. See Holly, 677 So. 2d at 183–84 (quoting Huffines, 288 F. Supp. at
864).
¶23. We note that the better practice in calculating lost profits in the usurped-corporate-
opportunity context would be to avoid using the actual figures of the business that benefitted
from the breach of fiduciary duty—here, Delta Stone. Instead, it would be more appropriate
to consider an estimation or projection of the future profits of the damaged business had the
corporate opportunity not been usurped or to consider the past profits of the damaged
business, accounting for any advantage received by the business that benefitted from the
breach of fiduciary duty. Under normal circumstances, had the chancellor chosen to project
future profits, he would have had the benefit of expert reports. As discussed above, the
chancellor here rejected significant portions of Saunders’s and Koerber’s reports and did not
abuse his discretion in calculating Limestone’s lost profits himself.
¶24. Also, as clarification for future reference, in Lampkin II, we did not reverse the
chancellor’s initial judgment solely because he used evidence of Limestone’s past profits to
calculate lost future profits. Lampkin II, 175 So. 3d at 1228–29. Instead, this Court
recognized that, within the context of the particular facts of this case, past profits alone were
insufficient to calculate the entire loss suffered by Limestone. Id. This Court stated, “The
chancellor’s assessment of ‘historical lost net profits’ in his damages calculation did not take
into account Lampkin’s post-breach rock-price increase.” Id. at 1228. Evidence of past
profits can be used as a means to calculate lost profits in the fiduciary-duty context as long
as the damages award ultimately represents the entire loss to the corporation. Id. at 1228–29;
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see also Sanders v. Dantzler, 375 So. 2d 774, 777 (Miss. 1979) (recognizing in the contract
context that “one way to show damages (the loss of future profits) is to introduce evidence of
past profits”). In other words, the chancellor’s initial judgment would have been proper had
he calculated the lost profits due to Limestone by considering Limestone’s past profits
adjusted by such factors as the post-breach rock-price increase at Delta Stone.
¶25. This is not to say the chancellor abused his discretion, here on remand, when he
decided not to use Limestone’s past profits to calculate lost profits. On the contrary, the
chancellor specifically ensured that the Judgment on Remand provided for the entire loss
suffered by Limestone. Again, “damage awards are only overturned when the trial judge has
abused his discretion or in exceptional cases where such awards are so gross as to be contrary
to right reason.” Lampkin II, 175 So. 3d at 1227 (internal quotations omitted). The cost of
goods and the average expense figures used by the chancellor were less than Delta Stone’s
actual figures. The chancellor therefore calculated these figures with the principle of
awarding the entire loss to Limestone. Further, the chancellor did not err in considering Delta
Stone’s actual sales figures, as he did not accept the complete testimony of either expert. In
fact, using these figures ensured that the Judgment on Remand “t[ook] into account
Lampkin’s post-breach rock-price increase” as this Court had instructed the chancellor to do
in Lampkin II. Id. at 1228.
¶26. The chancellor’s award is proper under this Court’s directive in Lampkin II and Holly.
The award for lost profits to Limestone, on remand, is more than double the amount originally
awarded by the chancellor. Thus, we find that the chancellor did not abuse his discretion on
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this issue.
III. Unreported Rock
¶27. In Lampkin II, this Court found that the chancellor had abused his discretion by
“failing to take into account . . . unreported rock [diverted from Limestone to Delta Stone] in
his calculation of lost future profits.” Lampkin II, 175 So. 3d at 1230. While calculating the
entire loss suffered in his Judgment on Remand, taking into account the expert testimony of
both Saunders and Koerber, the chancellor determined that 36,000 tons of rock were
unreported.3 The chancellor then found that these “36,000 tons should have been paid at the
rate of one dollar per ton over cost and added to the lost profits.” Therefore, the chancellor
valued this rock at $36,000 and determined that the Estate’s damages were half of this
amount, $18,000.
¶28. On appeal, the Estate argues that the chancellor’s one-dollar-per-ton valuation is
erroneous because it is based on an unenforceable oral agreement between Lampkin and
Smith. According to the estate, the agreement provided that Lampkin could purchase rock
from Limestone at one dollar per ton over Limestone’s cost. The estate now contends that this
oral agreement between Smith and Lampkin was too indefinite and therefore unenforceable.
See Poole v. Johns-Manville Prods. Corp., 49 So. 2d 891, 893 (Miss. 1951) (holding that a
contract that cannot be performed within fifteen months must be memorialized in a signed
writing to be enforceable). Further, the estate claims that, though this arrangement could be
3
As noted above, the chancellor rejected Koerber’s opinion that, beginning in 2003,
Lampkin began diverting hundreds of thousands of tons of rock from Limestone.
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unaffected by the statute of frauds if the parties continuously complied with the agreement,
Smith and Lampkin did not always abide by this agreement because Lampkin at times paid
more than one dollar per ton. The estate claims, instead, that the rock should be valued at
$1.70 per ton based on Koerber’s lost-profits calculation,4 resulting in damages of $61,200,
of which one half is due to the estate.
¶29. Though not raised by Lampkin, we cannot find evidence in the record that the estate
has preserved these arguments for appeal. There is no indication that the estate argued to the
chancellor that the agreement is unenforceable under the statute of frauds. “We will not
consider issues raised for the first time on appeal.” Anderson v. LaVere, 136 So. 3d 404, 410
(Miss. 2014). The chancellor’s Judgment on Remand states that both parties presented
additional briefing on remand, but the record contains only one brief—a brief submitted by
Lampkin. Further, the Judgment on Remand does not mention that the chancellor relied on
any oral agreement between Smith and Lampkin when valuing the unreported rock.
¶30. Even if the estate’s arguments were not procedurally barred, the issue here is not the
enforceability of the oral agreement, but rather whether the trial judge abused his discretion
in valuing the unreported rock. “[U]nder Mississippi law, a plaintiff is entitled to the gross
amount that would have been received pursuant to the business that was interrupted by a
defendant’s wrongful act, less the cost of running the business.” J & B Entertainment v. City
of Jackson, Miss., 720 F. Supp. 757, 765 (S.D. Miss. 2010) (citing Fred’s Stores of
4
The estate provided no citation to the record indicating where Koerber valued the
rock at $1.70 per ton.
16
Mississippi, Inc. v. M & H Drugs, Inc., 725 So. 2d 902, 914 (Miss. 1998)). The chancellor
did not abuse his discretion in valuing the rock according to the profit agreement. At trial,
Lampkin testified that he had paid for at least 136,000 tons of rock under this arrangement.
Saunders also testified that the parties at times had honored the agreement. Further,
Lampkin’s counsel elicited testimony from Koerber that Lampkin purchased rock from
Limestone under the agreement. Thus, evidence in the record supports the chancellor’s
valuation, and we cannot say that the chancellor abused his discretion by valuing the
unreported rock at $36,000.
IV. Lease
A. The Estate’s Appeal under the Lease
1. Damages Period
¶31. The estate argues that the chancellor erred in his calculation of damages under the lease
by awarding damages for only 2007 through November 2011. Without citation to any
authority, the estate repeatedly argues that the damages period must be consistent and that the
chancellor should have continued to award damages under the lease through July 2012. As
noted above, the “[f]ailure to cite legal authority in support of an issue is a procedural bar on
appeal.” Webb, 843 So. 2d at 685. Thus, we need not address this issue.
¶32. Notwithstanding the procedural bar, the chancellor did not abuse his discretion in
determining that Lampkin did not owe any damages under the lease after November 2011.
In his award, the chancellor noted that the property at issue in the suit was subject to a
partition judgment in November 2011 that granted the land on which Delta Stone operated to
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Lampkin. Also, the chancellor reincorporated his initial factual finding that the estate and
Lampkin were not on good terms and would not have continued to do business together for
long even if Lampkin had not usurped Limestone’s corporate opportunity. Thus, the
chancellor did not abuse his discretion in determining that the estate was due damages only
for the period when Lampkin and the estate both owned the property, before the partition
judgment.
2. Interest on Judgment
¶33. Next, the estate argues that it is entitled to legal interest on the amount of the judgment
that was awarded under the lease. “An award of prejudgment interest is reviewed for abuse
of discretion.” Theobald v. Nosser, 784 So. 2d 142, 145 (Miss. 2001). Mississippi law
provides for legal interest to the prevailing party under a breach-of-contract action. Sentinel
Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So. 2d 954, 971 (Miss. 1999);
Miss. Code Ann. §§ 75-17-1(1), 7 (Rev. 2016). “Prejudgment interest may be allowed in
cases where the amount due is liquidated when the claim is originally made or when the denial
of a claim is frivolous or in bad faith.” U.S. Fid. & Guar. Co. v. Estate of Francis ex rel.
Francis, 825 So. 2d 38, 50 (Miss. 2002) (quoting Preferred Risk Mut. Ins. Co. v. Johnson,
730 So. 2d 574, 577 (Miss.1998)).
¶34. Here, the estate is not due interest on the judgment. First, the estate’s claim under the
lease was not liquidated when it originally was made, as the chancellor had to determine the
damages period before he could award any damages under the lease. Second, there is no
indication in the record or the Judgment on Remand that Lampkin acted in bad faith. The
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chancellor recognized that neither shareholder, prior to Smith’s death, operated Limestone to
the detriment of the other shareholder. Further, the fact that Lampkin filed this action
willingly as a complaint for declaratory judgment is further evidence that he was not acting
in bad faith. Therefore, the estate is not due any interest on its judgment.
3. Attorney’s Fees under the Lease
¶35. The estate also claims that it is entitled to attorney’s fees under the lease. This Court
reviews the grant or denial of attorney’s fees under an abuse-of-discretion standard. In re
Estate of Gillies, 830 So. 2d 640, 644 (Miss. 2002). Attorney’s fees are recoverable when
provided for by contract. See Jackson Cty. Sch. Bd. v. Osborn, 605 So. 2d 731, 734–35
(Miss. 1992); Lovett v. Anderson, 573 So. 2d 758, 760–61 (Miss. 1990) (attorney’s fees under
a lease). In order to recover attorney’s fees, a party “must furnish an evidentiary predicate
therefor.” Key Constructors, Inc. v. H & M Gas Co., 537 So. 2d 1318, 1325 (Miss. 1989);
Coleman & Coleman Enters., Inc. v. Waller Funeral Home, 106 So. 3d 309, 319 (Miss.
2012).
¶36. Here, the lease provides: “Lessee agrees to pay a reasonable attorney’s fee on any
amount due hereunder which, after default in payment, may be placed in the hands of an
attorney for collection.” In its brief, the estate argues that an attorney’s fee of 25 percent of
the recovered amount under the lease is “justified.” No evidence in the record supports this
number as reasonable. This Court has held that it “may not judicially note what is a
reasonable fee and it certainly may not merely pull a figure out of thin air.” Key
Constructors, 537 So. 2d at 1325.
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¶37. Neither is there a presumption for a reasonable fee in this case. Anderson, 573 So. 2d
at 761 (finding error when trial judge sua sponte determined that a 25 percent fee was
reasonable under a lease); but see Dynasteel Corp. v. Aztec Indus., Inc., 611 So. 2d 977, 986
(Miss. 1992) ( holding under statute that “we will presume reasonable an attorney[’]s[] fee
of one-third of the judgment obtained, where the fee so calculated is not more than $5,000.”);
Miss. Code Ann. § 11-53-81 (Rev. 2012) (dealing with attorney’s fees under Open Account
Statute).
¶38. Without any evidence before us, we cannot find that the chancellor abused his
discretion by not awarding attorney’s fees under the lease. On remand, the estate did not
supplement the record with any evidence of the reasonableness of the fees that it incurred
litigating the issue of the lease in the proceedings below. In fact, as already noted above and
conceded by the estate’s counsel at oral argument, the estate did not supplement the record
on remand at all. At oral argument, counsel for the estate argued that the chancellor had
sufficient evidence before him to determine that the estate’s requested attorney’s fees under
the lease were reasonable on the basis of the bill filed by the estate before remand.5 Upon
review of a two-page transaction listing for $163,135 in attorney’s fees filed by the estate, we
cannot determine what portion—if any—of the fees are attributable to the estate’s litigation
5
As an aside, a litigant has an affirmative duty to provide this Court with specific
citations to the appellate record. M.R.A.P. 28(7) (“The argument shall contain the
contentions of appellant . . . with citations to the . . . parts of the record relied on.”) We have
found failure to fulfill this duty a procedural bar in the past. Matter of Estate of Smith v.
Boolos, 204 So. 3d 291, 313–14 (Miss. 2016). Here, the Estate did not provide any
citation—either in its briefs or at oral argument—to its previously filed bill.
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of the lease. This is not surprising, as the transaction listing was filed before the remand, but
the estate did not supplement the record with any of the evidence necessary to make a finding
concerning the reasonableness of the fee under the lease. Faced with no evidence to
determine the reasonableness of the fee, the chancellor did not abuse his discretion by not
awarding any attorney’s fees to the estate under the lease, and we affirm the judgment of the
chancellor on this issue.
B. Lampkin’s Cross-Appeal under the Lease
¶39. On cross-appeal, Lampkin argues that Delta Stone utilized only 6.82 acres of the 17.38
acres subject to the lease and should be liable to Limestone only for the acreage he, through
Delta Stone, actually used. In his argument, Lampkin notes that several entities owned first
by Smith and subsequently by the estate operated on the remaining 10.56 acres without paying
rent to Smith or Lampkin.
¶40. “[I]t is a question of law for the court to determine whether a contract is ambiguous
and, if not, enforce the contract as written.” Royer Homes of Mississippi, Inc. v. Chandeleur
Homes, Inc., 857 So. 2d 748, 751 (Miss. 2003). We find that the lease at issue is not
ambiguous; also, neither party argues that it is ambiguous. After a review of the lease, we
disagree with Lampkin on his cross-appeal.
¶41. In 1999, Limestone entered into the original lease with Lampkin and Smith. It
included the entire 17.38 acres at issue. Lampkin usurped the entire lease agreement from
Limestone. As such, Lampkin is liable for “the entire loss to the corporation.” See Holly, 677
So. 2d at 183–84. Limestone—regardless of whether it ever used the entire lease or not—lost
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the entire lease when Lampkin breached his fiduciary duty to Limestone. Delta Stone may
have operated only on a portion of the land subject to the lease, but Lampkin usurped the
entire lease. Thus, we affirm the chancellor’s calculation of damages under the lease on this
issue.
V. Attorney’s Fees6
¶42. The estate also argues that the chancellor should have re-examined the issue of
attorney’s fees after this Court’s remand. The Estate claims that damages for “the entire loss
suffered” by Limestone would include an award for attorney’s fees. While Limestone is
entitled to damages for the entire loss suffered due to Lampkin’s breach, we ultimately
disagree with the estate on this issue, as damages must be allowable under the law.
¶43. Initially, we note that if an “issue was raised on appeal [,] then it has been previously
litigated and therefore is barred from consideration in the present proceedings.” Larson v.
Larson, 192 So. 3d 1137, 1140 (Miss. Ct. App. 2016) (quoting Pruett v. Thigpen, 444 So. 2d
819, 823 (Miss. 1984)). The chancellor originally determined that the estate was not due
damages for advancing attorney’s fees on behalf of Limestone. This Court’s decision in
Lampkin II did not disturb this finding. See Lampkin II, 175 So. 3d at 1221. As such, the
estate is barred from relitigating the issue of attorney’s fees.
¶44. Considering the estate’s argument, though, it is clear that the chancellor did not err
when he did not reconsider attorney’s fees in the Judgment on Remand. “This Court has
6
The following analysis relates to attorney’s fees claimed by the estate separate and
apart from any fees under the lease, see Issue IV A 3 supra.22
repeatedly held that ‘in the absence of contractual provisions or statutory authority,
attorney[’]s fees may not be awarded as damages in a case unless punitive damages are also
proper.’” Mullen v. Green Tree Fin. Corp.-Miss., 730 So. 2d 9, 15 (Miss. 1998) (quoting
Central Bank of Miss. v. Butler, 517 So. 2d 507, 512 (Miss. 1987)). In his initial judgment,
the chancellor found that Lampkin’s conduct did not justify the award of punitive damages.
This Court did not specifically set aside this finding. See Lampkin II, 175 So. 3d at 1221.
Also, as already has been discussed, the chancellor, on remand, found that neither Lampkin
nor Smith operated Limestone to the other’s detriment before Smith’s passing in 2006.
Further, the fact that Lampkin brought the action as a declaratory judgment is evidence that
supports the chancellor’s determination that Lampkin’s conduct did not merit punitive
damages. Thus, we affirm the judgment of the chancellor on this issue.
CONCLUSION
¶45. We affirm the chancellor’s judgment on every issue except for the calculation of lost
assets. Concerning the calculation of lost assets, we reverse and render judgment in the
amount of $64,363.50.
¶46. ON DIRECT APPEAL: AFFIRMED IN PART AND REVERSED AND
RENDERED IN PART. ON CROSS-APPEAL: AFFIRMED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,
COLEMAN AND BEAM, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.
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