Filed: Jul. 08, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS July 8, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-60916 (Summary Calendar) THE SANDERSON GROUP, Plaintiff-Appellant, versus MORRIS-SHEA BRIDGE; ET AL, Defendants, MORRIS-SHEA BRIDGE and TRAVELERS CASUALTY & SURETY COMPANY, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Mississippi No. 2:02-CV-896 Before WIENER, BENAVIDES, and STEWART,
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS July 8, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-60916 (Summary Calendar) THE SANDERSON GROUP, Plaintiff-Appellant, versus MORRIS-SHEA BRIDGE; ET AL, Defendants, MORRIS-SHEA BRIDGE and TRAVELERS CASUALTY & SURETY COMPANY, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Mississippi No. 2:02-CV-896 Before WIENER, BENAVIDES, and STEWART, ..
More
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 8, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60916
(Summary Calendar)
THE SANDERSON GROUP,
Plaintiff-Appellant,
versus
MORRIS-SHEA BRIDGE; ET AL,
Defendants,
MORRIS-SHEA BRIDGE and TRAVELERS
CASUALTY & SURETY COMPANY,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
No. 2:02-CV-896
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
The Sanderson Group, Inc. (“Sanderson”) is a one-man Louisiana corporation owned and
operated by Dave Sanderson. This suit commenced when Sanderson sought costs in a Mississippi
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Chancery Court for repairs for alleged damages caused to a construction crane it rented to Morris-
Shea Bridge Co., Inc.(“Morris-Shea”).1 Sanderson’s action also alleged a claim for breach of
contract, contending that Morris-Shea failed to provide proper notice of termination of its rental
agreement, as was required under the terms of their agreement. The matter was removed to the
United States District Court for the Southern District of Mississippi pursuant to diversity jurisdiction,
and the case was tried in a two-day bench trial. The district court took the matter under advisement,
and subsequently made extensive findings of fact and conclusions of law. Based on these findings and
conclusions, the district court rendered judgment in favor of Morris-Shea and its surety, Travelers
Casualty and Surety Company of America (“Travelers Casualty”) (collectively “the defendants”).
Sanderson now appeals from that judgment and the dismissal of its claims with prejudice. For the
reasons stated below, the final judgment of the district court is AFFIRMED.
BACKGROUND
In January of 2000, K.R. Bo rries Construction Company (“Borries”) leased a 1965 model
4000 W Manitowoc crane (“the crane”) to Morris-Shea. The lease provided for a month-to-month
rental fee in the amount of $8,000 per month. It also provided, inter alia, that Morris-Shea maintain
and return the crane in good and working condition and that Morris-Shea provide a 30-day written
notice before terminating the lease. The district court found that Morris-Shea received the crane in
poor working condition, but that the crane was sufficient to meet Morris-Shea’s particular needs.
In February of 2000, Borries sold the crane to Sanderson for approximately $200,000. As
part of the sales agreement, Borries assigned Morris-Shea’s lease agreement to Sanderson. The
1
From what can be gleaned from the record, it appears that the suit was filed in
Mississippi because that was the location of the construction site and the place where the contract
was formed.
2
district court determined that Morris-Shea ceased using the crane in September of 2000 and that
Morris-Shea returned the crane in good and working condition. The record indicates that evidence
was presented suggesting that the crane was in better condition than when Morris-Shea received it,
and that Sanderson implicitly acknowledged that fact when it advertised the crane as being in
excellent condition in December of 2000. Notwithstanding this advertisement, Sanderson sent
invoices to Morris-Shea in October of 2001, more than a year after Morris-Shea ceased using the
crane, for reimbursement of repairs Sanderson made to the crane. After an unsuccessful demand for
payment, Sanderson filed this suit in November of 2001. The case was removed to the district court
in December of 2002. Final judgment in favor of the defendants was entered in September of 2004,
and this appeal by Sanderson ensued.
DISCUSSION
A. Damages For Costs of Repairs2
Sanderson claims that during the course of the lease Morris-Shea abused and damaged the
crane, and that pursuant to the terms of the lease agreement Morris-Shea is liable for the costs
Sanderson spent on repairs. The parties agreed to bench try their factual dispute concerning the
responsibility for damages to the crane. Based on the evidence presented, the district court concluded
that Sanderson did not meet its burden of proving that Morris-Shea caused damage to the crane as
was alleged. Accordingly, the court concluded that Sanderson failed to establish its claim that
Morris-Shea was liable under the contract for those costs. After a through review of the record in
this case, we conclude that there was ample evidence presented to support the district court’s findings
2
Following a bench trial, we review a district court’s conclusions of law de novo and its
findings of fact for clear error. FED. R. CIV. PROC. 52(a); see also Am. Int’l. Specialty Lines Ins.
Co. v. Canal Indem., 352 F.3d 254 (5th Cir. 2003).
3
that Morris-Shea did not cause the damage to the crane and that it returned the crane in good
working condition pursuant to the terms of the agreement. Accordingly, Sanderson’s claim that
Morris-Shea is liable for breach of contract as to this claim is without merit.
B. Breach of the Equipment Rental Agreement
Sanderson next claims that Morris-Shea failed to properly terminate the lease in writing as
required under the lease agreement. Relying on Mississippi contract law, the district court determined
that the lease was properly terminated when Morris-Shea made an additional $8000 payment for
Morris-Shea’s extended thirty day rental period. The court further determined that when Sanderson
accepted the $8,000, it waived its right to written notice under the contract. We agree.
Under Mississippi law, “a party to a contract may by words or conduct waive a right to which
he would otherwise have been entitled.” Canizaro v. Mobile Communications Corp., 655 So. 2d 25,
29 (Miss. 1995); see also Eastline Corp. v. Marion Apts., Ltd.,
524 So. 2d 582, 584 (Miss. 1988)
(finding that the parties, through their conduct, had waived their contractual provision requiring that
all changes to the contract be executed in writing); accord Sentinel Indus. Contracting Corp. v.
Kimmins Indus. Serv. Corp.,
743 So. 2d 954, 964 (Miss. 1999). The Mississippi Supreme Court has
instructed that “[t]he existence of waiver is a factual determination to be made by the trial court.”
Scott Addison Constr., Inc. v. Lauderdale County Sch. Sys.,
789 So. 2d 771, 776 (Miss. 2001).
The district court determined that Morris-Shea began renting the crane in January of 2000 and
that it ceased using it around September of that year. It is undisputed that Morris-Shea di d not
provide written notice to Sanderson prior to the time it discontinued use of the crane.
Notwithstanding, the record suggests that sometime before August of 2000, Morris-Shea orally
4
advised Sanderson that it was discontinuing use of the equipment in August of 2000. The record
indicates that by September of 2000, Sanderson had knowledge that Morris-Shea had ceased using
the crane. As a result of Morris-Shea’s failure to provide written notice as prescribed in the
agreement, Sanderson sent Morris-Shea a certified letter on September 6, 2000, advising Morris-Shea
that it had not properly terminated the lease agreement. The letter also suggested that the parties
meet to discuss the proper method of closing the lease and that at the meeting the parties hold a joint-
survey of the machine to “determine what remedial action [would be] required to place the machine
in the proper state of repair, prior to the termination of the lease.”
Morris-Shea presented testimony that in response to Sanderson’s letter, it sent its then
equipment manager, Jerry Mitchell, to confer with Sanderson at the work site, and that at the meeting
Mitchell gave Sanderson a handwritten note indicating Morris-Shea was terminating the lease. The
district court also heard testimony that Morris-Shea agreed to one month’s extra rent to settle the
termination of lease issue and that Sanderson agreed to accept the $8,000 pay ment to resolve the
matter. The record reflects that a Morris-Shea check, # 29510, was paid to Sanderson on September
26, 2000. The record also reflects that not until more than a year after the September meeting were
further invoices by Sanderson sent to Morris-Shea requesting payment for rents. In fact, the district
court determined that no correspondence whatsoever was sent by Sanderson to Morris-Shea until
September 19, 2001, when Sanderson sent a letter demanding over $18,000 for reimbursement for
repairs it made to the crane.
Based upon our thorough review of this record, we hold that the district court identified the
correct principle of law when it applied the Mississippi doctrine of waiver. Moreover, there is more
than sufficient evidence to support the district court’s finding that Sanderson waived its right under
5
the contract to written notice when it accepted the final $8,000 rental payment. For these reasons,
we do not conclude that the district court’s finding of waiver was clear error.3
CONCLUSION
For the foregoing reasons, the final judgment of the district court dismissing Sanderson’s
breach of contract claims against Morris-Shea is affirmed.
AFFIRMED.
3
Because the district court correctly disposed of the breach of contract issue pursuant to
the doctrine of waiver, the issue raised in Sanderson’s brief of whether Morris-Shea successfully
met its burden of proving accord and satisfaction pursuant to Mississippi Code § 75-3-311 is
moot.
6
