Before Pittman, P.j., McRAE And Mills, JJ.
The opinion of the court was delivered by: Pittman, Presiding Justice
J. L. McCool Contractors, Inc. v. Mississippi Transportation Commission, et al, 96-CA-01365-SCT
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT: 11/14/96
TRIAL JUDGE: HON. GLENN BARLOW
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - TORTS (OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE)
DISPOSITION AFFIRMED - 8/13/98
MOTION FOR REHEARING FILED:
This case began on February 6, 1996, when J.L. McCool Contractors, Inc. (hereinafter "McCool") filed its Complaint for Declaratory, Injunctive, Damage, and Other Relief, in the Chancery Court of Jackson County, against the Mississippi Transportation Commission, Ronnie Shows, Wayne Burkes, Oliver Zack Stewart, Robert L. Robinson, Jim Smith, and USF&G (hereinafter "the Commission"). McCool sought relief and damages because of the improper administration of a minority preference program by the Commission.
Initially, the defendants and their surety, USF&G were sued individually. However, on March 22, 1996, on the joint motion of the parties, the claims against the defendants Shows, Burkes, Stewart, Robinson, and Smith, in their individual capacities, as well as the claim against USF&G, were dismissed without prejudice.
On April 8, 1996, the Commission filed its Answer to McCool's Complaint. The Commission's affirmative defenses asserted, among other things, that the complaint failed to state a claim upon which relief could be granted, that sovereign and statutory immunity barred all claims for monetary relief, that McCool had failed to comply with the notice provisions of the Tort Claims Act, and that McCool had failed to join an indispensable party (the Federal Highway Administration).
On May 31, McCool filed a Motion for Preliminary Injunction seeking to enjoin the Commission from improperly administering the Disadvantaged Business Enterprise (hereinafter "DBE") program. A hearing was held on that motion. The Chancellor took the motion under advisement.
On July 29, 1996, the Commission filed its Motion for Full, or in the Alternative Partial Summary Judgment. The Commission asserted that McCool had failed to join the Federal Highway Administration, which sets the guidelines for the Commission's DBE program, as an indispensable party. The motion also stated that the DBE program does not violate the Mississippi public bid statutes. The Commission argued further, that McCool's claim for damages was barred by the Tort Claims Act, because he had failed to give notice. Finally, the motion asserted that the Commission was protected by sovereign immunity § under Miss. Code Ann. 11-46-9 (a), (b), and/or (d). Alternatively, the Commission argued § that McCool's damages were limited to $50,000.00 under Miss. Code Ann. 11-46-15 (a) § and Miss. Code Ann. 11-46-11 (3) because only those acts occurring one year prior to the filing of the complaint are actionable.
A hearing on the Commission's motion for summary judgment was held on October 15, 1996.
By order, dated November 15, 1996, the Chancellor granted summary judgment to the Commission. It is from this Order that McCool appeals.
Years ago, in order to secure federal highway funding, the Commission adopted the DBE program that is designed to encourage minority participation in highway, bridge, and road projects. The DBE program provides a mechanism under which minority businesses (those owned by racial minorities and women) can be certified as a Disadvantaged Business Enterprise. The Mississippi Department of Transportation maintains a list of certified DBEs.
The Mississippi Department of Transportation is governed by three elected Commissioners who comprise the Mississippi Transportation Commission. They appoint an executive director, who has day-to-day administrative authority over the department. Jim Smith administers the DBE program ...