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 W ARD COURT FROM W HICH APPEALED: W A RREN COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: HARRIS H. BARNES, III JAMES W ILLIAMS JANOUSH ATTORNEYS FOR APPELLEE: DAVID W

. MOCKBEE D. W ESLEY MOCKBEE NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN PAR T A N D R E V E R S E D A

ND RENDERED I N P A R T

. O N C R O S S

- A P P E AL: AFFIR M E D

- 0 7 / 2 0 / 2 0 1 7 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE DICKINSON, P.J., KING AND CHAMBERLIN, JJ. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. The Chancery Court of Wa r r e n C o u n t y , F irst Judicial District, f ound that Ronald
Lam pkin ha d b r e a c h ed his f iduciary duties to Lim e stone Products, Inc. ( “Lim e stone”). 1
Lam pkin a nd Jam es Oldrum Sm ith Jr. jointly owned a nd operated Lim estone with a line of

1 A p o rtio n o f th e f

acts b elo w is ad a

p ted f r o m L a n e v. L a m

p k in , 1 7 5 S o . 3 d 1 2 2 2 , 1 2 2 3 (M iss. 2 0 1 5 ) (

L a m p k in II ), an d a p o rtio n o f

th e f acts is q u o ted v erb atim

f r o m o u r p rev io u s o p in io n .credit personally guaranteed by each of them

. Upon Sm ith’s d eath and h is estate’s ref usal to guarantee the line of credit, Lam pkin f orm ed Delta Stone, a n ew corporation which operated

o n t h e sam e property , used the s am e f acilities, and sold rock to t he sam e clients to w h o m Lim e s tone had sold. ¶2. Lam

pkin sought a d eclaratory judgm ent against the estate that he was not violating his f iduciary duties to L i m estone. The executors of t he estate counterclaim ed f o r lost prof

its and attorney ’s f

ees. A t the l iability s tage of the b if urcated trial, the c h ancellor determ ined that
Lam pkin had breached his f

iduciary duty to Lim estone by usurping a corporate opportunity

. In the d a m ages, stage of the trial, the chancellor considered expert testim ony , awarded dam a g es, and denied the e xecutors’ r equest f or at t o r n e y ’ s f

e es, expert-witness f

ees, and punitive dam ages. The executors appealed a nd the Court of Appeals af f irm ed. Lane v. Lam pkin , 176 So. 3d 62, 75 (Mis s . Ct. App. 2014) ( Lam pkin I ). This Court granted certiorari, reversed the Court of App e a l s and f o und that t he chancellor had abused his discretion in calculating the d am ages award. Lam pkin I I , 175 So. 3d at 1231. This Court

rem anded f

or the chancellor to re-evaluate dam ages. I d

. ¶3. O n rem and, the chancellor reassessed the dam ages due to Lim estone a s a r e s u l t o f
Lam pki n ’ s breach of his f

iduciary duties. Aggrieved, the executors appeal again. As explained below, we af

f irm in part and reverse and render in part.
FACTS AND PROCEDURAL HISTORY ¶4. Quoting f

rom Lam pkin II : In 1995, Lam

pkin and Sm i th f

o rm ed Lim estone, which they operated on land they jointl y o w n e d i n W arren County

. Lam p kin and Sm ith each owned a

2one-half interest in the corporation, which bought a nd sold r ocks

. L am pkin also owned Lam

p kin Construction, which becam e one of L im estone’s b iggest custom ers. For ten y ears, Lim estone operated on a line of c r edit personally guaranteed by both Lam

pkin and Sm ith. The line o f credit was set to exp i r e i n S eptem

b er 2006. In August 2006, Sm i th died, and his s tock in t h e c o rporation and his interest in the r eal property transf

e rred to the Estate. Prior to the expi r a t i o n of Lim estone’s line of credit, Lam p kin secur e d a n extension until Decem ber 8, 2006, to provide the Estate with t im e to determ ine whether it would guarantee the loan. Between Septem ber 2006 and Decem

b e r 2006, the parties discussed renew i n g t he line of credit. However, the Estate f ailed to p rovide a g uarantee bef ore t h e d e adline. L a m

pkin then f

orm ed a new corporation, Delt a Stone, which be g a n o p e rating in January 2007. D e l ta Stone perf orm ed the sam e f

unctions as Lim estone, and through his new com pany , Lam

pkin com

pleted Lim e stone’ s contracts and satisf ied its debt obligations.
Lam pkin f iled a l awsuit against the Executors in W arren County Circuit C o u r t

. . . . T he Executors f iled a counterclaim against Lam pkin f or present and f

uture p rof

its the c orporation lost due to Lam p kin’s actions a n d f

or a ttorney [ ’]s[ ] f

ees. [ O]ne o f the [ E]xecutors[ ] also f

iled a m otion to transf

er the m atter to W arren County Chancery Court. The circuit court judge entered an order f inding t he m atter to be proper f or a declaratory judgm ent. Further f i ndi n g t h a t the chancery court possessed p r o p e r jurisdiction over the subject m atter of the declaratory -judgm ent action, the circuit c o urt judge granted the m otion to transf er the m atter to chancery court. In an order e ntered b y the W a rren County Chancery C o u r t , all the chancellors recused them selves f rom the case, a n d t h e Mississippi Suprem e Court appointed a special judge to p reside over the proceedings.

. . . Fol lowing the chancellor’s ruling that Lam p kin breached his f iduciary d uty to Lim estone by starting Delta S tone and usurping a corporate opportunity , the parties presented evidence as to the

3dam age that resulted f rom Lam pkin’s breac h of duty

. Both parties hired an expert to testif y as t o the valuation o f L im estone. Lam pkin h ired Brent Saunders, and the Executors h ired Ja me s Koerber

. T h e chancellor accepted both experts as certif ied public accountants and experts in the f ield of business valuation.

. . . Koerber’s expert report indicated that between 2000 a n d 2 007, L im estone’s average net incom e was $20,914.00. Koerber opined that, in total, 649,203 tons of rock were diverted f rom Lim e stone between 2003 and 2 0 1 1

. T h is unreported rock was, beginning in 2007, diverted to Delta Stone: “y ou’ve got all of this unreported rock that went through say Delta [ S]tone and then som e that should h a v e b een attributable to L im estone.” Based on t he unreported rock, Koerber testif

ied that Lim e stone had incurred lost-prof it dama g e s of $1,095,281. Additionally , Koerber calculated that the lost-prof it dam ages f

rom 2011 through 2012 had b e en $270,804.00, which he based on “ the average of 2007, 2008, 2009, and 2 010’s lost prof its.” Koerber estim ated that l ost prof its am ounted t o $1,366,085, w h i c h h e rounded down to $ 1,366,000. He t hen added $169,129 to that f

igur e t o account f

o r loss of assets, bringing the total loss to $1,535,129. The chancellor indicated i n h i s valuation o rder t hat “the Sm ith estate’s portion, based on Koerber’s f i gures, would be $767,564.50.”
S a u n d e r s , Lam

pkin’s expert, testif

ied that t he r ock was not “unreported,” as Koerber had stated, b ut that Lam pkin had “m oved the tons f rom Lim estone to Delta Stone.” According to Saunders, the tons of rock “m ay be unreported in Lim estone but we’ve got a accounting a n d analy sis” w hich shows that “they just m oved over to Delta Ston e b e c a u s e [ Lam pkin] k ept on running the thing just like he was doing bef o re.” Instead of c onducting a lost-prof its anal y sis, Saunders conducted a valuation of the “ net book value” of Lim e stone. As of 2006, the y ear S m i th d ied, Saunders opined that the n et book value was $165,000. The 2007 valuation, according to Saunder s , was $156,000. According t o the chancellor, “[ a]f ter deductions, Saunders added t he value of the corporation’s r em a ining assets” and “arrived at a total net bo o k v a l u e of $125,546.32.” Saunders stated that $62,773.16 w a s owed to the Sm ith estate. The chan c e llor then conducted an independent assessm ent of the dam a ges, which he chronicled in a Judgm ent on Valuation o f B usiness. He acknowledged Saunders’s calculation of net book value, including d eductions, at $ 1 25,546.32. He opined that “in m aking an a s sessm ent of lost p rof its f rom January 1, 2008[ ,] f

orward the m ore f

air a ssessm ent of dam a ges would be t hat o f h i storical lost prof

its.” He then took into consideration Koerber’s calculation of average y early net incom e of $20,914, m ultiplied that f

igu r e by f

ive, representing the y e ars 2008 through 2012, and con c l u d e d that t he “historical

4lost prof its” am ounted to $104,570. Theref ore, “[ u]tilizing t he net book value provided by Saunders, in a ddition to t he h istorical costs, the Court f inds that the total sum of dam ages d ue to Lim estone Products totals $ 230,116.32.” The chancellor ordered Lam

pkin to pay $230,116.32 [ t o Lim estone] “as a result of his usurpation of corporate opportunity ,” o r otherwise $115,058.16 [ to the Estate], in the event the parties r e ached an agreem ent to dissolve the corporation. The chanc e l l o r denied the executors’ r equest f or attorney [ ’]s[ ] f ees, expert-witness f

ees, and punitive dam ages. Aggrieved, the e xecutors appealed the chancellor’s judgm ent, and the c ase was assigned t o the Court of Appeals. The Court of A ppeals af f irm ed, f inding t hat the chancello r h a d not abused his discretion in t he m ethods he em ploy ed to asses s t h e dam ages owed to Sm ith’s estate, in determ ining t hat Lam p kin’s expert h ad accoun t e d f

o r the unreported rock, in f ailing to award dam ages based on unpaid rent due t o Lim estone, and in f a iling to award costs to Sm ith’s estate. Af

ter f iling the requisite m otion f or rehearing i n the Court of Appeals, the executors tim ely f

iled [ a]

. . . petitio n f

o r a w r i t of certiorari

. . . . The executors of Sm ith’s e state assert[ ed] that the c hancellor em ploy ed t he wrong analy sis in a ssessing dam a ges, that the chancellor f ailed to t ake into a ccount the unreported rock in assessing dam ages, that t he chancell o r f a i l e d to award dam ages based on unpaid rent due to Lim estone, and that the c hancellor f ailed to award attorney s’ f

ees, e xpert-wi t n e ss f

ees, and punitive dam ages to the Sm ith Estate.
Lam pkin II , 175 So. 3d at 1223–27 (quoting Lam pkin I , 176 So. 3d at 88–91). ¶5. In Lam

pkin II , this Court r eversed the judgm e nt of the C o u r t o f A ppeals and f ound that t he c hancellor had abused his d iscretion in a w arding dam ages. Lam p kin II , 175 So. 3d at 1231. This Court held that The chancellor’s calculation of “ h i s t o r ical net book value” was m isleading because it did not account f or a rock price i ncrease af

ter Lam pkin’s breach, and also because it w as, without explanation, based only on the y ears 2008 t hrough 2012. The chancellor’ s b u siness valuation ignored o ur precedent which instruct e d h i m t o calculate the “entire loss suf f ered by the corporation” as a result of Lam

p kin’s b reach of f

idu c i ary duty and usurpation of corporate opportunity

. Id

. at 1229–30. T h i s C o u rt also rem anded f or the chancellor “to take i nto account the

5unreported rock i n h is calculation of lost f uture prof

its” and “ r econ s ider whether the Sm ith

e s t a t e is entitled to lease proceeds f rom 2007

. . . onward” Id

. at 1230-31. In s u m, t h e chancellor on rem a nd was to evaluate the “entire loss” t o Lim estone by considering: (1) the rock price increase af

ter Lam pkin’s breach, (2) the tim e f ram e o f the loss, ( 3) the unreported rock and (4) the lease. ¶6. Upon rem and f

r om Lam pkin II , the chancellor, by agreed order, allowed Lam pkin to

a mend his com

plaint. I n the am ended com plaint, Lam

pkin requested t hat he receive t h e “reasonable rental value” f or his o ne-half interest in the p roperty that was subject to the lease f r o m Big River Shipbuilders, one of Sm ith’s businesses that also operated o n the sa me property

. ¶7. On May 23, 2 016, the chancellor e ntered his Judgm ent on R em and. At t he outset, the

c h a n c ellor recognized that the parties had d eterm ined the record was com plete and had provided additional b rief

ing and argum ent in the f

o rm o f proposed j udgm ents. Af ter a review of the r ecord, th o u g h , w e d i d not f ind any p roposed j udgm ents f rom the parties. Lam

pkin subm i tted an additional brief t o the chancellor bef ore his Judgm e n t on Rem a nd. No additional brief ing or supplem entation f

rom the estate is in the record. The chancellor a lso recognized that this Court instructed him to evaluate the entire loss suf f ered by Lim estone. ¶8. The chancellor f

irst valued the dam ages d

ue to the estate f

or lost assets at $36,811.50. This f igure was calculated by exam ining Lim e stone’s assets on D ecem ber 31, 20 0 6 , a n d subtracting Lim estone’s assets i t still had in 2012 along with various expenses t he estate owed Lim e s tone.

6¶9. Next, the chancellor calculated the e n t i r e l o s s s u f f e r e d by L i m estone. Under this calculation, Lim estone was owed $288,177.02, of which the est a t e w a s owed half —$144,088.51. In c alculating this f igure, the chancellor f

ound that t he dam ages period f or l ost prof

its should be calculated f

rom 2007 through 2012. To c alculate Lim estone’s lost prof its, the chancellor used Koerber’s f igure of 89.15 percent f

or the cost of go o d s sold by Lim e s tone. The chancellor then added an am ount f or shrinkage, the am ount of rock lost in transport to Lim estone, a rriving at a total f igure of 90 percent f

or the cost of goods sold. The chancellor noted that this f igure w as less than the actual cost of goods sold by Lim estone and Delta f or the y e ars 2007 and 2008. The chancellor next c a l c u l a t e d the average operating

e x p e n s e p e r y ear at $281,055.40 by a veraging f i ve y ears of actual expenses f rom the

com p ani e s f r o m 2 0 03 through 2007. Again, t he chancellor noted that this num ber was

som e w hat lower than the actual sa l e s r ef lected by Delta Stone. Using t hese f igures, the chancellor estim ated the lost prof i ts due to Lim estone as $240,147.52. ¶10. The chancellor then turned to the issue of u nreported r ock. Beginning h is analy sis, the chancellor recognized, “this cour t d o e s not f ind that either Lam

pkin or S m ith operated Lim e s tone Products to e ither shareholder’s detrim ent in the period bef ore . . . S m ith’s death in August o f 2006.” Af

ter reviewing t he expert rep o r t s , the chancellor determ ined that he could account f

or all but 36,000 tons of unreported rock, which he valued at $36,000 per an early agreem ent by

Lam pkin and Sm ith that Lam

pkin could purchase his rock at $1 per ton plus costs. The estate , t heref ore, was owed $18,000 f or the unreported rock u nder the chancellor’s calculations.

7¶11. The chancellor next analy zed the am ount due Lim estone under the l e a s e a g r e em ent. Recognizing a partition judgm ent, entered on Novem ber 9, 2011, held t hat Lam pkin was the sole owner of the land on which Lim estone had operated, the chancellor calculated the am ount of rent due to the estate f

rom 2007 through Novem ber 2011. U nder the l ease, t he estate was due $2,000 a m onth, which totaled $118,000. ¶12. Last, the chancellor f ound that Lam

pk i n w a s e n t i t l e d t o a $ 9 6 , 0 0 0 s e t o f f —f or

m a nagem ent of Lim e stone af ter Sm ith’s death—which would be applied against the estate’s dam a g es award. Apply ing this s etof f , the chancellor determ i ned t h a t t h e estate w as owed $220,900.01. ¶13. Aggrieved, the e s t a t e n o w a p p eals and Lam pkin c ross-appeals. The e state raises several issues which we restate f or clarity

. First, t he estate argues that the c h a n c e llor erred in his lost-assets c alculation. S e c ond, the estate m a intains that the chancellor erred in calculating the l ost prof

its due to Lim estone. Third, the estate f inds error in the chancellor’s valuation o f the unreported rock. F o u r t h , t h e e s tate a rgues that the chancellor erred in his calculation of dam ages under the lease. F i f th, the estate claim s t h a t t h e c h ancellor should have awarded it attorney ’s f ees. In response, L am

pkin c ross-appeals one issue, arguing that the chancellor erred in his calculation of dam ages under the lease. 2
STANDARD OF REVIEW ¶14. “W e alway s review a c hancellor’s f indings of f

act, but

. . . will not disturb the f actual

2 We n o te th at, w h ile b o th p arties cite th e reco rd in L a m p k in I I (C au se N o . 2 0 1 3 -C T

0 0 5 5 4 -S C T ), n eith er p arty m o v ed th is C o u rt to co n so lid ate t h e p rio r r eco r d w ith th e cu rren t ap p eal. We h av e, h o w ev er, co n s id ered th e p rio r reco r d in o u r rev iew o f th is ap p eal. 8f

indings of a chancellor when sup p orted by s ubstantial evidence unless [ w e] can say with reasonable certainty that the chancellor abused his discretion, w as m anif estly wrong, clearly

erroneous, or applied an erroneous legal s tandard.” Lane v. Lam pkin , 175 So. 3d 1222, 1227 (Miss. 2015) (internal quotations om itted). This Court reviews questions of law under a de novo standard. I

d . Further, [ i]n the context of a dam ages ass e s s m e nt, which is a f inding of f

act, “the appellate court m

ust review the dam ages award by looking to the ‘ f acts of each case.’” W e have held that “dam a ge awards are o nly overturned when the trial judge has a

bused 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. L ane , 997 So. 2d 1 98, 206 (Miss. 2008); Texaco, Inc. v. Addison , 613 So. 2d 1193, 1202 (Miss. 1993)).
ANALYSIS
I. Lost Assets Calculation ¶15. The estate f

irst argues that the chancellor e rred by reducing t he lost-assets calculation b y $ 5 5 , 1 04 in his judgm ent on r em and. Lam pkin agrees that $55,104 was incorrec t l y deducted f

rom the asset calculation. Theref ore, we reverse and render on this issue and hold that o ne-half

, $27,552, should be added back to the am ount due to the e state f or a l ost-assets total of $64,363.50.
II. Lost Profits ¶16. In Mississippi, a party m ay recover f o r l o s s of f

u ture prof

its “as long as such prof

its

are proved with r easonable certainty , not based on speculation or conjecture.” Lovett v. E.L. Garner, I nc. , 511 So. 2d 1 3 46, 1353 (Miss. 1987). “This Court has stated that ‘there are no

9guidelines set in stone specif y i ng the degree of certainty that we r equire of parties in proving loss of f uture prof

its.’” Lane v. Lam

pkin , 1 7 5 So. 3d 1222, 1 228 (Miss. 2015) (quoting
Lovett , 511 So. 2d at 1353). Further, “the degr ee of proof required usually depends on the particular f

acts of the case.” Lovett , 511 So. 2d at 1353. This Court has been clear that: Liability c annot be escaped on the grounds that t h e p r o of as to the am ount of dam ages, if any , is too uncertain t o j ustif y t h e lower court’s award. It is w ell recognized that “Mississippi is equally f irm in i ts determ ination that a party will not be perm itted t o escape liability b ecause of the l ack of a perf ect m easure of dam ages his wrong has caused.”
R & S Dev., I

nc. v. Wilson , 534 S o. 2d 1 008, 1012 (Miss. 1988) (quoting Johnston v. Safeco Ins. Co. of Am . , 727 F.2d 548, 551 (5th Cir. 1984)). ¶17. Wi t h i n t h e c o ntext of recovering l ost prof its due to a breach o f f

iduciary duty , thi s Court has recognized that: Although r e covery of p rof its m ay be awarded whe r e one who breaches a f iduciary obligation m akes prof its in excess of the l oss c aused b y the breach,

. . . one who breaches a f iduciary o bligation is responsible f or the entire l o s s suf f ered by the corporation as a result of t he breach. This liability is n ot lim i ted to the recovery

of prof its or to “out-of

-pocket” loss. Aqua-Culture Techs., Ltd. v. Holly , 677 So. 2 d 171, 183–84 (Miss. 1996) ( quoting Norte &
Co. v. Huffines , 288 F. Supp. 855, 864 (S.D.N.Y. 1968)). The Huffines c o urt f o und that, in the context of a shareholders’ derivative suit, the “entire loss suf f ered by the c orporation” as a result of a f

raudulent stock exchange should be “ m easured under the ‘ loss of t he bargain’ rule.” Huffines , 288 F. Supp. at 864. W ithin this c ontext, the d am ages due to a corporation

are m e a sured by the dif f erence b etween the value of w hat the c orporation w ould have received if the f

alse and m isleading representations as to t he value of the stock were true and

1 0the value of

what the corporation actually received. Id

. ¶18. W hile lost prof

i ts due t o a usurped corpor a t e o p p ortunity cannot be m easured in exactly the sam e m anner as dam ages due to a f raudulent e xchange of stock, the principle undergirding the “loss of the bargain” rule applies here. The estate is d ue dam ages calculated as one-half

o f t h e dif f erence between the value o f the l ost prof its Lim estone would h ave received if
Lam pkin h ad not usurped L im estone’s corporate opportunity and the value of what Lim estone actually did receive. See Huffines , 288 F. Supp. at 864. Here, t he chancellor’s award accords with this principle and was not an abuse of the chancellor’s discretion. ¶19. T h e c h a n c e l l o r c o nsistently cited the f act that he was calculating the entire loss t o Lim e s tone pursuant to this Court’s instructions o n rem and. In order to do this, the chancellor looked to the evidence i n the record to calculate two f i gures: (1) the c o st o f goods com bined with the shrinkage f

actor and (2) the average operating e x pense f i gure. The chancellor used portions of Koerber’s reports to c alculate these two f igures. Next, the chancellor u sed these f igures and the gross sales f rom Delta Stone f

or t he y ears 2 007 t hrough 2011 to calculate the lost prof i ts due to Lim estone. ¶20. The estate strenuousl y a r g u e s t h a t t he chancellor’s reliance on these f igures f rom Koerber’s f

inancial analy sis was error. The estate a rgues that, i nstead, the chancellor should have accepted Koerber’s calculation of lost p rof its in his f orensic analy sis. It is settled law, however, that the a dm ission or exclusion of expert t estim ony i s 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 f actual a llegations concerning u n r e p o r t ed r ock on which

1 1Koerber’s f

orensic a naly sis prim a rily w as based. For i nstance, the chancellor spe cif ically f ound that neither Lam

pkin nor Sm ith, bef

o re Sm ith’s death i n A u gust of 2006, operated Lim e s tone to the detrim ent o f the other shareholder. Further, we n ote that the chancellor specif ically reincorporated h is initial f indings concerning the c r edibility o f the expert witnesses into the Judgm e nt on Rem and. ¶21. The chancellor did not abuse his discretion b y perf orm ing his own calculation of lost prof its derived f

rom the expert r eports a n d t e s tim ony bef ore him

. On rem a nd, the parties chose n ot to supplem ent the record with any additional analy sis or reports. Indeed, i t appears that the estate did not f

ile any thing at all bef

ore the chancellor entere d his Judgm ent on Rem and. Even now o n appeal, the estate has f a i l e d to cite a n y authority in its brief s concerning why the chancellor erred by using f igures f rom Koerber’s f

i nancial analy sis and

not his f o rensic analy sis. This Court consistently h as held that “[ f ]ailure to cite legal authority in s u pport of an issue i s a procedural bar on appeal.” Webb v. DeSoto Cty. , 843 So. 2d 682,
685 ( Miss. 2003) (citing McClain v. State , 625 So. 2d 7 74, 781 (Miss.1993)). The lost-prof its calculation that the estate argues that t he chancellor s hould have accepted on rem and was unreasonable, as the estate m erely relied, once again, on the s am e expert testim ony a nd reports

m u ch of w hich the chancellor already had r ejected in h is initial judgm ent. T hese f i ndings by the chancellor were unaf

f e cted by this Court’s rem and. Lam pkin I I , 175 So. 3d at 1229–30. ¶22. The chancellor’s calculation of $240,147.52 as Lim estone’s lost prof its i s not an abuse of discretion. T he chancellor used the actual p rof it f i gures f rom Delta Stone to calculate the entire los t p rof

its Lim estone would have received had Lam pkin not usurped L im estone’s

1 2corporate opportunity

. See Holly , 677 S o. 2d at 183–84 (quoting Huffines , 288 F. Supp. at

864). ¶23. W e note that the better practice in calculating l ost p rof i t s i n the usurped-corporateopportunity context would b e to avoid using t he actual f igures of the b usiness that benef itted f rom the breach o f f

iduciary duty

—here, Delta Stone. Instead, it would b e m ore appropriate

to consider an estim ation or projection of the f uture prof

its of the dam aged business had the

c o r porate opportunity not been usurped or to consider the past prof its of t he dama g e d business, accounting f

o r any a dvantage received by the business t h a t benef i tted f rom the breach of f

iduciary d uty

. Under norm al c ircum stances, had the chancellor chosen to project f uture pr o f

i t s , h e would have had the benef i t of e xpert reports. A s discussed above, the chancellor here rejected signif icant portions of Saunders’s and Koerber’s reports and did not abuse his discretion in calculating Lim estone’s lost prof its him self

. ¶24. A l s o , as clarif

ication f o r f uture ref erence, in Lam

p kin I I , we did n ot re v e r s e t h e chancellor’s initial judgm ent solely because he used evidence of Lim e s tone’s past prof its to calculate lost f

uture p rof

its. Lam pkin II , 175 So. 3d at 1228–2 9

. Instead, this Court recognized that, w ithin the c ontext of the particular f acts of this case, p ast prof its alone were ins u f f i c i e n t to calculate the entire loss suf f ered by Lim estone. Id

. This Court s tated, “The chancellor’s assessm ent of ‘historical lost net prof its’ i n his d am ages calculation did not take into account Lam

pkin’s post-breach rock-price increase.” Id

. at 1 2 2 8

. E v i dence of past prof its can be used a s a means to calculate lost prof its i n t he f

iduciary -duty context as long

as t he dam ages award ultim ately represents the entire loss t o the corporation. Id

. at 1228–29;

1 3see also Sanders v. Dantzler , 375 S o. 2 d 774, 777 (Miss. 1979) (recognizing in the contract

context that “ one way to show dam ages (the loss of f uture prof i ts) is to introduce evidence of past prof its”). In other words, the chancellor’s initial judgm ent would have been proper had he calculated the lost prof its d u e t o Lim e s tone by considering Lim estone’s past prof its adjusted by

such f actors as the post-breach rock-price increase at Delta Stone. ¶25. T h i s i s not to say the c hancellor abused his discretion, here on r e ma n d , w h e n h e decided not to use Lim e stone’s past prof i t s t o calculate lost prof

its. On the contrary , the chancellor specif

ically e nsured that the Judgm ent on R em and provi d e d f o r t h e e ntire loss suf f ered by Lim estone. Again, “dam age awards are only overturned when the trial judge has abused his discretion or in exceptional c ases where s u ch awards are s o g ross as to be contrary
to right reason.” Lam

pkin II , 175 So. 3d at 1227 (internal quotations om itted). The cost of goods and the average expense f igures u sed by the chancellor w ere less than Delta Stone’s actual f igures. The c han c e l l o r theref ore calculated these f

igures with the p rinciple of awarding the entire loss to Lim estone. F urther, the chancellor did not err in considering Delta
Stone’s actual sales f

igures, a s he did not accept the com plete testim ony of either expert. In f act, using these f

i g u r e s e n s u red that the Judgm e nt on Rem and “t[ ook] into account
Lam pkin’s post-breach rock-price increase” as this C ourt had instructed the c hancellor t o do in L am pkin II

. Id

. at 1228. ¶26. The chancellor’s award is proper under this Court’s directive in Lam pkin I I and Holly

. The a ward f

or lost prof

its to Lim estone, on rem and, is m ore than double t he a m ount originally awarded by the chancellor. Thus, we f ind that the chancellor did not abuse his discretion on

1 4this issue.

III. Unreported Rock ¶27. In Lam

pkin II , t h i s C o u r t f

o und that the chancellor had abused his discretion by “f ailing to take into account

. . . unreported rock [ diverted f rom Lim estone to Delta Stone] in his calculation of lost f

uture prof its.” Lam pkin II , 175 So. 3d at 1230. W hile calculating the entire loss suf

f ered in his Judgm ent on Rem and, taking into account the e xpert testim ony of both Saunde r s and Koerber, the chancellor determ ined that 36,000 tons o f rock were unreported. 3 The chancellor then f ound that these “36,000 tons should have b een paid at the rate of one dollar per ton over cost and added to the lost prof its.” Theref

ore, the chancellor valued t his r ock at $36,000 and determ ine d t h at the Estate’s d am ages were half of this

am ount, $18,000. ¶28. On appeal, the E state a rgues that the chancellor’s one-dollar

- p e r - t o n v a l u a t i on is

erroneous because it i s based on an unenf orceable o r a l agreem ent between Lam pkin and
Sm ith. According to the estate, the agreem ent p rovided that Lam pkin c o u ld purchase rock f rom L im estone at one dollar per ton over Lim estone’s cost. The estate now contends that this oral agreem ent between Sm ith and Lam pkin was too indef

inite and theref

ore unenf orceable.
See Poole v. Johns-Manville Prods. Corp. , 49 So. 2d 891, 893 (Miss. 1951) (holding that a
contract that cannot be perf orm ed within f

i f teen m onths m

ust b e m em oria l i z ed in a signed writing to be enf

orceable). Further, the estate claim s t hat, though this arrangem ent could be

3 A s n o ted ab o v e, th e ch an cello r rej ected K o erb e r’s o p in io n th at, b eg in n in g in 2 0 0 3 , L a m p k in b eg a n d iv ertin g h u n d red s o f th o u san d s o f

to n s o f ro c k f ro m L im esto n e . 1 5unaf

f ected by the statute of f

rauds if the parties continuously com plied with the agreem ent, Sm ith and Lam

pkin did not alway s abide by this agreem ent because L am pkin at tim es paid

m o re than one d o llar per t on. T h e e s t a t e claim s, instead, that the rock should be valued at $1.70 per ton based on K oerber’s lost-prof its c alculation, 4 resulting in d am ages o f $61,200, of which one half

is due to the estate. ¶29. Though not raised by Lam pkin, we cannot f

ind evidence in the r ecord t hat the estate has preserved these a rgum ents f or appeal. There is no indication t hat the e state argued to the chancellor that the a greem ent i s u nenf orceable under the statute o f f r auds. “W e will not consider issues raised f

or the f i rst tim e on appeal.” Anderson v. LaV ere , 136 So. 3d 404, 410 ( M i ss. 2014). The chancellor’s Judgm ent on Rem and states that both p arties presente d additional brief

ing on rem and, but the record contains only one brief —a brief s ubm itted by
Lam pkin. Further, the Judgm ent on Rem and does n ot m ention that the chancellor relied on
any oral agreem ent between Sm ith and Lam pkin when valuing the unreported rock. ¶30. Even if the estate’s argum ents were not procedurally barred, the issue here is not the enf o rceability of the oral agreem ent, but rather whether the trial judge abused his discretion in valuing the unreported roc k. “[ U]nder Mississippi law, a plaintif f is entitled to the gross

am ount t hat would have been received pursuant to the b u s i n e s s that was i nterrupted by a def e ndant’s wrongf

ul act, less the c ost of running the business.” J & B Entertainm ent v. City

o f Jackson, Miss. , 720 F. S upp. 757, 765 (S.D. Miss. 2010) (citing Fred’s St o r e s o f

4 T h e estate p ro v id ed n o citatio n to th e reco rd in d icatin g w h ere K o erb er v alu ed th e ro ck at $ 1 .7 0 p er to n . 1 6Mississippi, Inc. v. M & H Drugs, Inc. , 725 So. 2d 902, 914 (Miss. 1998)). The chancellor

did not abuse h is discretion in valuing the rock according to the prof it agreem ent. At trial,
Lam pkin testif

ied that he had paid f

or at least 1 36,000 tons of rock under this arrangem ent. Saunders also testif

ied that the parties at tim e s had honored the agreem ent. Further,
Lam pkin’s counsel elicited testim ony f rom Koerb e r t h at Lam

pkin purchased rock f

rom Lim e s tone under the a greem ent. Thus, e v idence in t h e record supports the chancellor’s valuation, and we cannot say that the chancellor a bused his discretion by v aluing t h e unreported rock at $36,000.
IV. Lease A. The Estate’s Appeal under the Lease 1. Dam ages Period ¶31. The estate argues that the c hancellor erred in his c a lculation of dam a ges under the lease by awarding dam ages f

o r only 2007 thro u gh Novem b er 2011. W i thout citation to any authority , the estate r epeatedly argues that the dam a ges period m u st be consistent and that the chancellor should have continued to award dam ages under the lease through July 2012. As noted above, the “[ f

]ailure to cite legal authority in support of an issue i s a procedural bar on appeal.” W

ebb , 843 So. 2d at 685. Thus, we need not address this issue. ¶32. Notwithstanding the procedural bar, t h e c h a n c e llor did n ot abuse his d iscretion in de t e r m i n i n g t hat L am

pkin d id not owe any dam ages under the lease af t er Novem

ber 2011.
In his award, the chancellor noted that the p roperty at issue in the s uit was subject to a partition judgm ent in N ovem ber 2 011 that granted the l and on which Delta S tone operated to

1 7Lam

pkin. Also, the chancellor reincorporated his initia l f a c t ual f inding t hat t he estate and
Lam pkin were not on good term s and would not have continued to do business together f or long even if Lam

pkin had not usurped Lim e s tone’s corpor a t e o pportunity

. Thus, the chancellor did not abuse his discretion in determ ining that the estate was due dam ages only f o r t h e period w hen Lam

pkin and the estate both owned the property , bef ore the partition judgm ent. 2. Interest on Judgm ent ¶33. Next, the e state argues that i t is entitled to l egal interest on the a m ount of the judgm ent that was awarded under the lease. “An award of prejudgm ent i nterest is r eviewed f or abuse of discretion.” Theobald v. Nosser , 7 84 So. 2d 142, 145 (Miss. 2001). Mississippi law provides f

or legal interest to the prevailing party under a breach-of

- contract action. Sentinel
Indus. Contracting Corp. v. K im m ins Indus. Serv. Corp. , 743 So. 2 d 954, 971 (Miss. 1999); Miss. Code Ann. §§ 75-17-1(1), 7 (R e v . 2 0 1 6 )

. “Prejudgm e nt interest m ay be a llowed in

cases where the am ount due is liquidated w hen the claim is originally m ade o r when the denial of a claim i s f

rivolous or in b ad f

aith.” U.S. Fid. & Guar. Co. v. Estate of Francis ex rel.
Francis , 825 So. 2d 38, 50 (Miss. 2002) (quoting Preferred Risk M ut. Ins. Co. v. J

ohnson , 730 So. 2d 574, 577 (Miss.1998)). ¶34. Here, the estate is not due interest on t he judgm ent. First, the estate’s claim under the lease was not l iquidated when it originally was m ade, as the chancellor had t o determ ine the dam a g es p eriod b ef

ore he could award any dam ages under t he lease. Second, there i s no indication in the record or the Judgm ent on Rema n d t h a t L a mpkin acted in bad f aith. The

1 8chancellor recognized that neither s hareholder, p rior to S m ith’s d eath, operated Lim estone to

the detr i me n t of the other shareholder. Further, t he f act that L am

pkin f iled this action willingly as a com p l aint f or declaratory

judgm ent is f

urther evidence that he was not acting in bad f aith. Theref

ore, the estate is not due any interest on its judgm ent. 3. Attorney ’s Fees under the Lease ¶35. The estate also claim s that it is entitled to attorney ’s f ees under the lease. This Court reviews the g rant or denial of attorney ’ s f e e s u n der a n abuse-of

-discretion standard. In re Estate of Gillies , 830 So. 2d 640, 644 (Miss. 2002). Attorney ’s f ees a r e recoverable w h en provided f

or by contract. See Jackson Cty. S c h . B d. v. Osborn , 605 So. 2d 7 31, 734–35 (Miss. 1992); Lovett v. Anderson , 573 So. 2d 758, 760–61 (Miss. 1990) (attorney ’ s f ees under

a l ease). In order to r e cover attorney ’s f ees, a party “m

ust f u r n i s h an e videntiary predicate theref or.” Key Constructors, Inc. v. H & M Gas Co. , 537 So. 2d 1318, 1325 (Miss. 1989);
C olem an & Colem an Enters., I nc. v. Waller Funeral Hom e , 106 So. 3d 3 09, 3 1 9 ( M i s s . 2012). ¶36. Here, the l e a s e p r o v i d e s : “Lessee agrees to pay a reasonable attorney ’s f ee on any

am ount d ue hereunder w hich, a f

t e r d ef ault in pay

m ent, m ay be placed in the hands of an attorney f or collection.” I n its brief , the estate argues that an attorney ’s f ee of 25 percent of the r ecovered am ount under the lease is “justif ied.” No evidence in the record supports this

num ber a s r e a s o n a b l e . This Court has held that it “m ay not judicially note what is a reasonable f

ee a nd it certainly m ay not m erely pull a f igure o ut of t h i n a i r . ” Key Constructors , 537 So. 2d at 1325.

1 9¶37. Neither is there a presum ption f or a reasonable f

ee in this case. A nderson , 573 So. 2d

at 761 (f inding error when trial j udge sua sponte determ ine d t h a t a 2 5 percent f ee was reasonable under a lease); but see D ynasteel Corp. v. A ztec Indus., Inc. , 611 So. 2d 977, 986 (Miss. 1 992) ( holding u nder st atute that “we will presum e reasonable an attorney [ ’]s[ ] f ee of o ne-third of the judgm e nt obtained, where the f ee s o calculated is not m ore than $5,000.”); Miss. Code Ann. § 11-53-81 ( Rev. 2012) ( dealing with attorney ’s f ees under Open Account Statute). ¶38. W ithout a ny evidence bef ore us, we cannot f

ind that th e c h a n c e l l o r a b u s e d h i s discretion by n ot awarding a ttorney ’s f ees under the l ease. On r em and, t h e e s t a t e did not supplem ent the record with any evidence of the reasonablene s s o f the f ees t hat it incurred litigating the issue of the lease in the proceedings below. In f act, as already noted above and conceded by the estate’s counsel at oral argum ent, the estate did not s uppleme n t t h e record

on rem and at all. A t o r a l argum ent, counsel f or the estate argued that the chancellor had suf f icient evidence bef

ore him to d eterm ine that t he estate’s requested attorney ’s f ees under the lease were reasonable o n the b asis of the bill f iled by the e s t ate bef

ore r em and. 5 Upon review of a two-page transaction listing f or $163,135 in a ttorney ’ s f ees f iled by t he estate, we
cannot determ ine what p ortion—if any —of the f e es are attributable to the estate’s litigation

5 A s an asid e , a litig an t

h as an af f irm ativ e d u ty

to p ro v id e th is C o u rt w ith sp ecif ic citatio n s to th e ap p ellate reco rd . M .R .A .P . 2 8 (7 ) (“T h e arg u m en t sh all co n tain th e co n ten t io n s o f ap p ellan t

. . . w ith citatio n s to th e . . . p a rts o f t h e reco rd relied o n .”) We h av e f o u n d f ailu r e to f u lf ill th is d u ty a p ro c ed u ral b ar in th e p ast. M a tter o f E sta te o f S m ith v. B o o lo s , 2 0 4 S o . 3 d 2 9 1 , 3 1 3

– 1 4 (M iss. 2 0 1 6 ). H ere, th e E state d id n o t p ro v i d e an y citatio n

— eith er in its b rief s o r at o ral arg u m en t— t o its p rev io u sly f iled b ill. 2 0of the lease. This is not s u rprising, as the transaction listing was f iled bef ore the rem and, but the e state did not supplem ent the record with a ny of t he evidence necessary to m ake a f inding concerning th e reasonableness of the f ee under t he lease. Faced w ith no evidence to determ ine the reasonableness of t h e f e e , the chancellor did n ot abuse his discretion by not awarding any attorney ’s f ees to the estate under the lease, and we af f i rm the judgm ent of the chancellor on this issue.

B. Lam pkin’s Cross-Appeal under the Lease ¶39. On cross-appeal, Lam p kin argues that Delta Stone utilized only 6.82 a cres of the 17.38

acres subject to the lease and should be liable t o Lim estone only f o r the acreage he, through Delta Stone, actually used. In h is a rgum ent, Lam pkin n otes that several entities owned f irst by Sm ith and subsequently b y the estate o perated on the rem aining 10.56 acres without pay ing
rent to Sm ith or Lam

pkin. ¶40. “ [ I ] t i s a q u estion of law f or the court t o determ ine whether a contract is am biguous and, if not, enf

orce the contract as written.” Royer H om es of Mississippi, Inc. v

. Chandeleur
Hom es, Inc. , 857 So. 2d 748, 7 5 1 (Miss. 2003). W e f ind that the l ease at issue is not

am biguous; also, neither p a rty argues that i t i s a mb i g uous. Af t er a review of the lease, we disagree with Lam

p k in on his cross-appeal. ¶41. I n 1 9 9 9 , L i me s t o n e e n t e r e d into the original lease with L am p kin and Sm ith. I t included the entire 1 7

. 3 8 a c r e s a t issue. L am pkin usurped the e ntire lease agreem ent f rom Lim e s tone. As such, L am pkin is liable f

or “the entire loss to the corporation.” See Holly , 677 So. 2d at 183–84. Lim estone—regardless of whether it ever used the e ntire lease or not—lost

2 1the entire lease w hen Lam pkin bre a c h e d h is f

iduciary duty to Lim estone. Delta Stone m ay have ope r ated only o n a portion of the land subject t o the lease, but Lam pkin usurped the entire lease. Thus, we af

f irm the chancellor’s calculation of dam ages under the lease on this issue.
V. Attorney ’s Fees 6 ¶42. The estate also a r g u e s t h a t t h e c h a ncellor should have re-exam i ned the issue of attorney ’s f

ees af ter this Court’s rem and. The Estate claim s that dam ages f or “the entire loss suf f ered” by Lim estone w ould include an award f o r attorney ’s f

ees. W hile Lim estone is entit l e d t o d am ages f

or the entire loss suf

f ered due to Lam

pkin’s breach, we u ltim ately disagree with the estate on this issue, as dam ages m ust be allowable under the law. ¶43. Initially , we note that if an “ issue was raised on appeal [ ,] then it has been previously litigated a nd theref

ore is b arr e d f

rom consideration in the present proceedings.” Larson v. Larson , 192 S o. 3d 1137, 1140 (Miss. C t. A pp. 2016) (quoting Pruett v. T higpen , 444 So. 2d 819, 823 (Miss. 1984)). The chancellor originally d eterm ined that the estate was not due dam a g es f

or advancing attorney ’s f ees on behalf of Lim estone. T h i s Court’s decision in
Lam pkin II did not disturb this f

inding. See Lam

pkin II , 175 So. 3 d at 1221. As such, the estate is barred f

rom relitigating the issue of

attorney ’s f

e es. ¶44. Considering the estate’s a r g u me n t , t hough, it is c l ear that the chancellor did not err when he d i d not reconsi d e r attorney ’s f ees in the J udgm ent on Rem and. “This Court has

6 T h e f o llo w i n g an aly sis relates to atto rn ey ’s f ees claim ed b y th e e state sep arate an d ap art f ro m an y f ees u n d er th e lease, see Issu e IV A 3 su p ra . 2 2repeatedly held that ‘in the absence of contractual provisions o r statutory authority ,

attorney [ ’]s f

ees m ay not be awarded as dam ages in a case unless punitive d am ages are also proper.’” M

u llen v. Green T

ree Fin. Corp.-Miss. , 730 So. 2d 9, 1 5 (Miss. 1998) (quoting
Central Bank of Miss. v. Butler , 517 So. 2d 507, 512 (Miss. 1987)). In his initial j udgm ent, the chancellor f

ound that Lam

p kin’s conduct did not justif y the award of punitive dam ages. This Court did not specif i cally set aside this f

inding. See Lam

pkin II , 175 So. 3d at 1221. Also, as already

has been discussed, the chancellor, on rem and, f ound that neither Lam

pkin

nor Sm i th operated Lim estone to the other’s detrim ent b ef ore Sm ith’s passing in 20 0 6. Further, the f

act that Lam

pkin brought the action as a declaratory judgm ent i s evidence that

s u p p o rts the chancellor’s determ ination that L am pkin’s conduct did not m e rit punitiv e dam a g es. Thus, we af

f irm the judgm ent of

the chancellor on this issue.
CONCLUSION ¶45. W e af

f irm the chancellor’s judgm ent o n every issue except f or the calculation of lost

assets. Concerning the calculation of lost assets, w e r e v e r s e and render j udgm ent in the

am ount of

$64,363.50. ¶46. ON DI R E C T A P P E A L : A F F I R M E D I N P A R T A N D R E V E R SED AND RENDERED IN PART. ON CROSS-APPEAL: AFFIRMED. WALLER, C.J., DICKINSON AND R A N D OLPH, P.JJ., KITCHENS, KING, COLEMAN AND BEAM, JJ., CONCUR. MAX WELL, J., NOT PARTICIPATING.

2 3