CARLTON, J., for the Court:
¶ 1. This case addresses the valuation of a corporation and the related award of damages when one of the corporation's two shareholders dies and the remaining shareholder begins a new corporation to operate the same rock-supply business. In the present case, Limestone Products Incorporated had only two shareholders, Ronnie Lampkin and J.O. Smith Jr. Prior to Smith's death, Limestone operated for ten years with a line of credit personally guaranteed by both shareholders. However, upon Smith's death, his estate (the Estate) refused Lampkin's request to extend a guarantee for Limestone's credit line beyond December 2006. Due to the Estate's refusal to extend the credit line, Limestone lacked the ability to operate and to meet its obligations beyond December 2006. In January 2007, Lampkin began a new corporation, Delta Stone, which conducted the same rock-supply operations previously provided by Limestone.
¶ 2. Giving rise to the instant appeal, Lampkin filed a complaint for a declaratory judgment against Ernest Lane III and
¶ 3. After determining liability based on Lampkin's breach of his fiduciary duty of loyalty and his usurpation of a corporate opportunity, the chancellor then addressed and awarded damages for the offending conduct. In so doing, the chancellor determined that, even after establishing a new corporation and borrowing $400,000, Lampkin continued to fulfill a contract initiated with Limestone and to ensure that the profits went to Limestone. The chancellor also determined that Lampkin credited Limestone with rock purchased or delivered to Limestone. After reviewing the evidence, including differing testimony from the parties' experts in business valuation, the chancellor awarded damages by considering Limestone's net value as of December 31, 2006, and December 31, 2007, less expenses, but with the added value of the remaining corporate assets, such as an aged front-end loader and a heating and air-conditioning unit.
¶ 4. Upon appellate review, we find that the chancellor's analysis was supported by evidence in the record. In calculating the award of damages, the chancellor relied on expert opinions and financial reports to assess the corporation's net book value and its total net income for 2008 through 2012. The chancellor determined the corporation's total net book value to be $125,546.32. Based on the information provided, the chancellor also found Limestone's average net income to be $20,914, which amounted to a total net income of $104,570 for 2008 through 2012. However, on appeal, the Executors seek lost profits instead of lost income.
¶ 5. In the court below, the Executors also sought attorneys' fees and expert-witness fees, but the chancellor denied the request for fees, finding that Lampkin acted without malice or gross negligence and did not commit fraud. The chancellor found that, even though Lampkin usurped a corporate opportunity, Lampkin believed Limestone could not operate without the line of credit. The chancellor also found credible Lampkin's testimony that the Estate refused to cooperate with guaranteeing the line of credit. The chancellor further found that Lampkin acted in the interest of Limestone by completing the corporation's contracts and accounting for its profits and debts.
¶ 6. The Executors now appeal the judgment rendered by the Warren County Chancery Court in assessing damages owed to the Estate for Lampkin's breach of fiduciary duty and usurpation of a corporate opportunity. The Executors appeal the award of damages by raising the following issues: (1) whether the chancellor erred by admitting and relying on testimony from Lampkin's expert; (2) whether the chancellor properly assessed the amount of damages due to the corporation; and (3) whether the chancellor erred by refusing to award attorneys' fees and expert-witness fees. Finding no error in the chancellor's ruling, we affirm.
¶ 7. In 1995, Lampkin and Smith formed Limestone, which they operated on land they jointly owned in Warren County. Lampkin and Smith each owned a one-half interest in the corporation, which bought and sold rocks. Lampkin also owned Lampkin Construction, which became one of Limestone's biggest customers.
¶ 8. 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.
¶ 9. Lampkin filed a lawsuit against the Executors in Warren County Circuit Court. Lampkin asked the circuit court to find the following: (1) that Lampkin had the right to independently invest in and operate a rock-supply business; (2) that he was not in violation of his fiduciary duties as a director and officer of Limestone; (3) that he possessed the authority as an officer of Limestone to continue to sell the corporation's existing inventory, collect accounts receivable, and apply the monies received to the corporation's debt; and (4) that he should receive compensation for his actions and should be paid interest on any monetary advances made on the corporation's behalf. The Executors filed a counterclaim against Lampkin for present and future profits the corporation lost due to Lampkin's actions and for attorneys' fees. Lane, one of the co-executors, also filed a motion to transfer the matter to Warren County Chancery Court.
¶ 10. 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. Several of Smith's beneficiaries filed a motion to intervene in the lawsuit, which the specially appointed judge granted.
¶ 11. Lampkin filed a motion for separate trials on the issues of liability and damages. He also asked the chancellor to stay discovery on damages pending the outcome on the trial as to liability. The chancellor granted Lampkin's motion and bifurcated the trial. The chancellor held a hearing on the issue of liability in November 2009. The main issue before the chancery court was whether Lampkin breached his fiduciary duty to Limestone by usurping a corporate opportunity when he started Delta Stone. In determining whether Lampkin breached his fiduciary duty to Limestone, the chancellor considered the following: (1) whether the business opportunity was "reasonably related to the existing or prospective business activities of the corporation"; and (2) whether the corporation had the financial ability to seize the opportunity. See Aqua-Culture Tech.,
¶ 12. In his order, the chancellor noted Lampkin's concession that the business ventures and activities of Delta Stone and Limestone were the same. The chancellor further noted that Delta Stone operated on the same property as Limestone, used the same facilities and equipment as Limestone, and sold rock to the same customers as Limestone. In determining whether Limestone had the financial ability to seize the corporate opportunity, the chancellor noted that "[t]here is no dispute amongst the parties that the bank would not renew the line of credit without the personal guarantees of both the Estate and Lampkin." The chancellor continued:
¶ 13. In reaching a determination as to Lampkin's liability, the chancellor considered the events that occurred between Smith's death in August 2006 and the December 2006 deadline for renewing the line of credit. Within his discussion of these events, the chancellor provided a summary of the correspondence exchanged by the parties. After reviewing the evidence, the chancellor found that Lampkin failed to timely provide financial information to the Estate and to give the Estate ample time to review Limestone's corporate records. As noted in the chancellor's order, the Estate requested this information to decide whether to provide a guarantee for Limestone's line of credit, and without the requested information, the Estate was unable to make an informed decision prior to the line of credit's expiration.
¶ 14. The chancellor stated that, if the line of credit was crucial to operating Limestone, then Lampkin, who was aware of the upcoming deadline, possessed a fiduciary duty to Limestone to cooperate with the Estate to meet the deadline. The chancellor found that Lampkin's failure to timely provide the necessary financial information to the Estate prevented him from prevailing in his argument that the Estate's failure to renew the line of credit relieved him of any further fiduciary duty to Limestone. According to the chancellor, "[t]he Estate should have been provided more time to make the determination [of whether to guarantee the line of credit], even if that meant allowing the line to mature and letting the line sit for a few more weeks or months while Limestone's documents were inspected."
¶ 15. Although Limestone's balance sheets showed the corporation to be solvent, the chancellor noted that the corporation apparently lacked "a substantial amount of equity with which to continue on with the business." The chancellor found that the line of credit had been Limestone's primary source of funds with which to purchase inventory for the past ten years. He therefore agreed with Lampkin that, without the guaranteed line of credit, Limestone could not continue to operate. The chancellor found that Lampkin was an officer and director of Limestone and thus owed a fiduciary duty to the corporation. By forming Delta Stone, Lampkin breached his fiduciary duty to Limestone. In addition, the chancellor found that Lampkin's failure to timely provide the Estate
¶ 16. 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 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.
¶ 17. After considering both experts' testimony, as well as the testimony provided by Lane and Lampkin, the chancellor entered his findings of fact. The chancellor stated that any damages owed by Lampkin should be paid to Limestone rather than to individual shareholders. As part of his analysis, the chancellor considered the profits Lampkin made because of the usurpation; Limestone's assets; both Limestone's and Delta Stone's income and profit; and the debts and other expenses associated with the operation of both Limestone and Delta Stone. The experts' testimony varied greatly as to the proper valuation for Limestone, and the chancellor found that the experts were "just splitting hairs" and getting "bogged down" in an argument over the proper terminology to describe Limestone's valuation. The chancellor stated, "Whether you call it asset based or net book value or lost profits, this [c]ourt is merely concerned with how and when to value this business."
¶ 18. With regard to damages, the Executors claimed that the Estate was entitled to one-half of the lease payments owed to Limestone since 2007. While the chancellor found that the lease was still in effect, he also noted Lampkin's testimony that no lease payments had been made in five years. In addition, the chancellor found that, as the only two shareholders of Limestone, Lampkin and Smith were equally responsible for any lease payments and equally entitled to one-half of any lease proceeds. He therefore found that the issue "create[d] a wash."
¶ 19. The chancellor next considered testimony by Koerber, the Executors' expert, that 649,203 tons of rock purchased by Limestone was diverted from the corporation's accounting system and remained unreported. The chancellor found that Lampkin and his expert, Saunders, accounted for this allegedly unreported rock in their testimony. As to this issue, the chancellor stated the following:
¶ 20. The chancellor next looked at the actual profit of Limestone and Delta Stone as reported in the companies' financial records. He found the following:
¶ 21. In determining Limestone's lost profits since January 1, 2008, the chancellor found "historical lost net profits" to be an appropriate method for assessing damages.
¶ 22. After determining the damages owed to Limestone, the chancellor next considered the Executors' claim for attorneys' fees and expert-witness fees. Although Lampkin usurped a corporate opportunity, the chancellor found that the parties and their attorneys had repeatedly corresponded in the several months after Smith's death and prior to the expiration of the line of credit. Therefore, the chancellor found that the Estate was well aware of Limestone's situation. The chancellor also noted Lampkin's belief that Limestone could not continue to operate without the line of credit, as well as Lampkin's efforts in completing Limestone's contracts and keeping the profits from Limestone separate from Delta Stone's profits. Based on the evidence presented, the chancellor found that Lampkin's actions failed to show malice or gross negligence or that he committed fraud. The chancellor therefore denied the request for attorneys' fees. Aggrieved by the chancellor's judgment, the Executors now appeal to this Court.
¶ 23. When supported by substantial evidence, a chancellor's findings of fact will not be disturbed on appeal unless the chancellor abused his discretion, was manifestly wrong, was clearly erroneous, or applied an erroneous legal standard. Biglane v. Under the Hill Corp., 949 So.2d 9, 13-14 (¶ 17) (Miss.2007). As the reviewing court, we examine the entire record and accept as true all "evidence which supports
¶ 24. The Executors contend that the chancellor erred by relying on testimony from Lampkin's expert, Saunders. In addressing this assignment of error, we recognize that "the admission of expert testimony is within the sound discretion of the trial judge." Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 34 (¶ 4) (Miss.2003) (citation omitted). "Therefore, the decision of a trial judge will stand unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion." Id. (citation and quotation marks omitted). In support of their argument, the Executors assert that Saunders's testimony was unreliable because his damage calculation was based on unreliable accounting methods and he possessed a conflict of interest.
¶ 25. The Executors first contend that Saunders erroneously used a business-valuation analysis to calculate damages owed to Limestone when he should have used a lost-profits analysis. The Executors further "contend that the inappropriate analysis utilized by [Saunders] should, at the very least, necessitate deference to the damages determined by [their] expert[, Koerber,] and, at most, render the testimony of [Saunders] unreliable according to Rule 702 of the Mississippi Rules of Evidence." The Executors also argue, without providing any supporting caselaw, that Saunders's testimony was unreliable due to a conflict of interest that compromised his objectivity. As reflected in the record, Saunders's firm performed tax work for Lampkin personally and for Lampkin's businesses, including Limestone and Delta Stone.
¶ 26. "Conflicting expert testimony — often called a `battle of the experts' — requires the fact-finder to assign credibility. The trial judge, as the fact-finder in this case, was free to accept or reject any of the expert opinions." Estate of Sykes ex rel. Campbell v. Calhoun Health Servs., 66 So.3d 129, 135 (¶ 27) (Miss.2011) (citations omitted). Our law clearly provides that expert testimony should only be admitted if it meets the requirements of Rule 702. Bailey Lumber & Supply Co. v. Robinson, 98 So.3d 986, 991 (¶ 13) (Miss.2012).
¶ 27. Rule 702 provides:
¶ 28. Thus, pursuant to Rule 702, expert testimony must satisfy a two-pronged inquiry: (1) "the witness must be qualified by virtue of his ... knowledge, skill, experience[,] or education"; and (2) "the witness's scientific, technical[,] or other
¶ 29. Saunders testified that he obtained his certified-public-accountant license in 1977. He further testified that he began his own accounting firm in 1981 and that his practice had included performing business valuations since the mid-1980s. Saunders also testified that he was a member of several professional associations and was certified in financial forensics by the American Institute of Certified Public Accountants. In addition, Saunders stated that he had previously testified and been accepted as an expert in all types of accounting-related areas, including business valuations, lost-profits calculations, corporate accounting practices and procedures, and damage studies.
¶ 30. During both Saunders's voir dire and cross-examination, the Executors questioned him about his objectivity and his firm's work on behalf of Lampkin and Lampkin's businesses. The Executors specifically asked Saunders during voir dire whether he could have Lampkin as a client and still retain his independence as an expert witness in the proceeding. In response, Saunders stated:
When asked during voir dire whether he worried that, if he testified adversely to Lampkin, he might lose Lampkin's business, Saunders replied, "Absolutely not."
¶ 31. As the record reflects, Lampkin laid a foundation and presented Saunders as an expert witness in business valuation, and the Executors then had an opportunity to conduct voir dire. As the fact-finder in the court below, the chancellor was in the best position to assign credibility to the conflicting expert testimony presented during the "battle of the experts," and he was free to accept or reject any of the expert opinions. See Campbell, 66 So.3d at 135 (¶ 27). Based on the record before him, the chancellor accepted Saunders as an expert in the field of business valuation and allowed him to testify. The chancellor clearly found that Saunders was qualified to render an expert opinion and that his testimony was relevant and reliable. See Bailey Lumber, 98 So.3d at 992 (¶ 13). After reviewing the record and applicable caselaw, we find no abuse of discretion by the chancellor's decision to admit and rely on Saunders's expert testimony. This issue therefore lacks merit.
¶ 32. Throughout their brief, the Executors argue that the chancellor failed to properly assess the damages owed to not only Limestone but also the Estate. The Executors seek lost profits instead of lost income as damages. In reviewing this assignment of error, we acknowledge the following:
Greater Canton Ford Mercury, Inc. v. Lane, 997 So.2d 198, 206 (¶ 30) (Miss.2008) (internal citations and quotation marks omitted). In support of their argument that the chancellor awarded Limestone inadequate damages, the Executors raise the following sub-arguments: (1) the chancellor based his calculation of damages on unreliable accounting methods; (2) the chancellor failed to take into account the unreported rock that Lampkin allegedly diverted from Limestone; and (3) the chancellor failed to award damages with respect to a valid lease agreement.
¶ 33. In response to the Executors' claim that the chancellor based his damages assessment on unreliable accounting methods, Lampkin asserts that the chancellor relied on portions of both experts' calculations that fell within accepted methodologies to arrive at a reasonable calculation based on the parties' evidence. Lampkin further asserts that the chancellor was within his discretion to "make his own calculation using an approved methodology, in this case[,] using past profits to calculate lost profits."
¶ 34. In calculating the amount of damages owed to Limestone, the chancellor cited Lovett v. E.L. Garner, Inc., 511 So.2d 1346, 1353 (Miss.1987), for his finding that "historical lost net profits" is an acceptable method to use in cases involving breach of contract. With regard to loss of future profits, Lovett states the following:
Id. (emphasis added and internal citations omitted).
¶ 35. Thus, as recognized by Mississippi caselaw, "one way to show damages (the loss of future profits) is to introduce evidence of past profits." Sanders v. Dantzler, 375 So.2d 774, 777 (Miss.1979). This Court has further clarified, however, that "[i]t is lost profits and not lost income which is the proper measure of damages, i.e., it is a net and not a gross figure on which damages should be calculated." Lynn v. Soterra Inc., 802 So.2d 162, 171 (¶ 33) (Miss.Ct.App.2001) (citing City of New Albany v. Barkley, 510 So.2d 805, 807 (Miss.1987)).
¶ 36. As reflected by the record in this case, the chancellor looked at Limestone's past performance for the years 2000 through 2007 to assess damages in the form of lost future profits for the years 2008 through 2012. In determining lost future profits, the chancellor used the average net income provided by Koerber, the
¶ 37. Based on applicable caselaw and the facts of this case, we find no abuse of discretion in the methods the chancellor used to assess Limestone's damages. In reviewing the particular facts of this case, we find that the record fails to demonstrate that this is one of those "exceptional cases where [the award was] so gross as to be contrary to right reason." Greater Canton Ford Mercury, 997 So.2d at 206 (¶ 30). Accordingly, this argument lacks merit.
¶ 38. The Executors also contend that the damages calculated with respect to lost profits are greatly understated because the chancellor failed to take into account unreported rock that Lampkin allegedly diverted from Limestone. Without providing any caselaw to support their argument, the Executors claim that the chancellor abused his discretion by eliminating the unreported rock from the calculation of Limestone's lost profits.
¶ 39. In his findings of fact, the chancellor discussed the parties' conflicting testimony regarding the allegations of unreported rock. The chancellor then dismissed the Executors' allegations, stating that "Lampkin and Saunders both provided testimony which accounted for the whereabouts of the alleged unreported rock." As our caselaw recognizes, "[c]onflicting testimony in the record is to be resolved by the trier of fact." Scott Addison Constr., Inc. v. Lauderdale Cnty. Sch. Sys., 789 So.2d 771, 773 (¶ 8) (Miss.2001). The chancellor, as the fact-finder in the court below, possessed the authority and discretion to weigh the credibility of the parties' testimony. Univ. Med. Ctr. v. Martin, 994 So.2d 740, 746-47 (¶ 25) (Miss.2008).
¶ 40. As reflected in his judgment, the chancellor clearly resolved this factual dispute regarding the allegations of unreported rock in Lampkin's favor. As previously acknowledged, on appeal this Court examines the entire record and accepts as true all "evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings of fact." Par Indus., Inc., 708 So.2d at 47 (¶ 4) (citation and internal quotation marks omitted). Based on the applicable standard of review, we find no abuse of discretion in the chancellor's resolution of this factual dispute in Lampkin's favor. This argument also lacks merit.
¶ 41. The Executors further assert that the chancellor failed to award damages based on a valid lease agreement. According to the Executors' argument, the chancellor erroneously found that lease monies were owed to Limestone by Lampkin
The Executors therefore argue that the chancellor ignored the corporate form of Limestone, the entity responsible for the lease payments, and instead pierced the corporate veil against the non-breaching party without any reason.
¶ 42. In response, Lampkin first asserts that the chancellor properly declined to award damages for lease payments that the Executors claim Lampkin owed. If this Court decides to consider the claim for lease payments, however, Lampkin argues that the Executors failed to raise the claim in their pleadings. According to Lampkin's brief, the claim was not raised until trial in July 2012. Thus, Lampkin argues that any claim as to lease payments before 2009 is time-barred by the three-year statute of limitations.
¶ 43. Lampkin also asserts that the Estate lost any ownership interest in the property leased by Limestone once the November 2011 judgment was entered to partition the property. He therefore argues that, at most, only lease payments allegedly owed from 2009 through 2011 could be considered. Overall, however, Lampkin asks this Court to affirm the chancellor's determination that the Estate suffered no damages from the failure to pay rent and that the facts make this issue "a wash."
¶ 44. Applying the appropriate standard of review to the facts of this case, we find no abuse of discretion by the chancellor's decision to not include any alleged lease payments in his calculation of the damages owed to Limestone. We therefore find that this argument lacks merit. As a result, we find no merit to the Executors' overall argument that the chancellor failed to properly assess damages owed to Limestone and the Estate.
¶ 45. In their final assignment of error, the Executors contend that the chancellor erred by denying their request for attorneys' fees and expert-witness fees. This Court reviews the grant or denial of attorneys' fees and expert-witness fees for abuse of discretion. See Smith v. Dorsey, 599 So.2d 529, 550 (Miss.1992) (finding no abuse of discretion in the chancellor's award of expert's fee and attorneys' fees).
¶ 46. Rule 54(d) of the Mississippi Rules of Civil Procedure discusses judgments and costs. The comment for Rule 54 states the following:
¶ 47. "As a general rule, fees for expert witnesses, beyond the ordinary fees authorized for witnesses, are not taxable as costs unless there is a statute specifically allowing such an expense." Hubbard v. Delta Sanitation of Miss., 64 So.3d 547, 564 (¶ 70) (Miss.Ct.App.2011) (citation and internal quotation marks omitted). While certain Mississippi statutes
¶ 48. As to the issue of an award of attorneys' fees, Mississippi caselaw provides the following:
Smith, 599 So.2d at 550 (internal citations omitted).
¶ 49. The supreme court has previously held:
Warren v. Derivaux, 996 So.2d 729, 738 (¶ 28) (Miss.2008) (internal citations omitted).
¶ 50. Based on the evidence presented by the parties, the chancellor found that Lampkin's conduct failed to show malice, gross negligence, or that Lampkin committed fraud. The chancellor further found that Lampkin usurped a corporate opportunity from Limestone but that the Estate was well aware of Limestone's developing situation. In his order, the chancellor noted Lampkin's testimony that Limestone could not continue operating without the line of credit, as well as Lampkin's efforts to complete Limestone's contracts and to
¶ 51. A review of the record shows that the chancellor's findings of fact were supported by substantial evidence. Therefore, applying our appropriate standard of review and accepting as true all "evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may drawn therefrom and which favor the lower court's findings of fact[,]" we find no abuse of discretion by the chancellor's refusal to award attorneys' fees and expert-witness fees. Par Indus., Inc., 708 So.2d at 47 (¶ 4) (citation and internal quotation marks omitted). This assignment of error lacks merit.
¶ 52.
LEE, C.J., IRVING, P.J., ROBERTS AND MAXWELL, JJ., CONCUR. GRIFFIS, P.J., DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, ISHEE AND FAIR, JJ. JAMES, J., NOT PARTICIPATING.
GRIFFIS, P.J., dissenting in part:
¶ 53. I respectfully dissent.
¶ 54. The chancellor called the judgment appealed a "Judgment on Valuation of Business." The chancellor recognized that Lampkin and Smith incorporated Limestone Products, Inc. The chancellor ruled:
The chancellor then concluded, without citation to authority, that "[t]he damages portion of the trial took place on the above referenced days. This portion of the trial consisted primarily of establishing a valuation for Limestone Products." (Emphasis added). The chancellor then discussed the opinions offered by the expert witnesses. The chancellor then stated the "Court's Findings":
¶ 55. I include this lengthy quote of the chancellor's opinion because I believe he has accurately stated the law that is applicable here. However, starting in the last sentence of this quote, the chancellor has committed error.
¶ 56. Further, in the next paragraph, the chancellor makes erroneous statements of law. The judgment states:
¶ 57. The chancellor has the duty to weigh the evidence, assess the credibility of witnesses, and chose what evidence to rely upon. Notably, the chancellor states that "the Court is of the opinion that the
¶ 58. The chancellor "determined Lampkin breached his fiduciary duty to the Smith estate by usurping a corporate opportunity through the starting of Delta Stone." A lost-profits analysis should be used to calculate damages based on a claim of breach of fiduciary duty. Griffith v. Griffith, 997 So.2d 218, 223 (¶ 19) (Miss.Ct. App.2008). Likewise, a lost-profits analysis should be used to calculate damages based on a claim of usurpation of a corporate opportunity. Aqua-Culture Technologies, Ltd. v. Holly, 677 So.2d 171, 184 (Miss.1996).
¶ 59. There is simply no legal authority for the chancellor to consider a business-valuation analysis for a claim of breach of fiduciary duty or usurpation of corporate opportunity.
¶ 60. Further, it is illogical to include a calculation of "net book value" in a calculation for damages when the court found a breach of fiduciary duty or a usurpation of corporate opportunity. Upon dissolution, the shareholder of a corporation is entitled to receive a distribution of the corporation's assets that remain. "Net book value" is simply an accounting term that is not directly related to the actual value of the corporation's assets. It should not be considered as part of the calculation of damages for a recovery based on the claims of breach of fiduciary duty or a usurpation of corporate opportunity. There is simply no case to support this conclusion.
¶ 61. Also, I disagree with the chancellor's disregard of the unreported rock. Each side's expert witness agreed that tons of rock were diverted by Lampkin from Limestone Products to either Delta Stone or Lampkin Construction. Saunders testified to the following in his direct testimony about Koerber's testimony of "unreported rock":
Thus, Saunders's testimony supported Koerber's analysis, when Koerber testified:
I am of the opinion that the chancellor was in error to not consider the unreported rock in the calculation of damages.
¶ 62. Accordingly, I would reverse and remand this case to the chancellor for a new trial on damages. As part of the remand, I would also remand the claim of attorney's fees. I note that in Aqua-Culture, the Mississippi Supreme Court upheld an award of attorney's fees against the "improperly-acting shareholder." Covington v. Covington, 780 So.2d 665, 671
BARNES, ISHEE AND FAIR, JJ., JOIN THIS OPINION.
$125,546.32 + $104,570.00 _____________ $230,116.32