TRIANGLE CONSTRUCTION CO., INC. APPELLANT
v.
FOUCHE AND ASSOCIATES, INC. APPELLEE
DATE
OF JUDGMENT: 10/07/2015
RANKIN
COUNTY CIRCUIT COURT HON. WILLIAM E. CHAPMAN III, TRIAL JUDGE
ATTORNEY FOR APPELLANT: MACY DERALD HANSON
ATTORNEY FOR APPELLEE: CECIL MAISON HEIDELBERG
EN
BANC.
IRVING, P.J.
¶1.
Triangle Construction Company (Triangle) filed suit in the
Circuit Court of Rankin County against East Madison Water
Association (EMWA) and Fouche[1] and Associates (Fouche). In the
suit, Triangle alleged that it had entered into a contract
with EMWA that had been breached by both EMWA and Fouche, the
designated engineer in the contract. It further alleged,
based upon several theories, that it was entitled to recover
damages from Fouche. Both Fouche and EMWA filed separate
motions for summary judgment. The record does not inform us
as to the status of EMWA's motion. However, the circuit
court granted Fouche's motion and entered judgment
accordingly pursuant to Rule 54(b) of the Mississippi Rules
of Civil Procedure. Triangle now appeals, arguing that there
existed genuine issues of material fact regarding:
(1) whether Fouche, as the designing engineer of the
water-installation project at issue in this lawsuit, breached
the tort-based duties that it owed to Triangle, the
contractor, to design and manage the project in a reasonable
and prudent manner; (2) whether Fouche had entered into the
terms of the Specifications for Water Distribution System
Addition 2009 contract either as a signatory or through its
conduct, as an implied[-]in-fact contract; (3) whether Fouche
was the responsible party for obtaining easements for this
project, on behalf of [EMWA]; and (4) whether an
accord-and-satisfaction agreement had been reached between
Triangle and Fouche related to the claims pleaded by Triangle
against Fouche.
Finding
no genuine issue of material fact, we affirm.
FACTS
¶2.
Triangle won a bid offered by EMWA for a construction project
to build a water system in Madison and Leake Counties. On
February 9, 2010, Triangle and EMWA entered into the
"Specifications for Water Distribution System Addition
2009" agreement, which incorporates many contractual
documents as part of the "Contract" between
Triangle and EMWA that is now at the center of this
dispute.[2] Triangle argues on appeal that Fouche, the
project's engineer, was also a party to the Contract;
however, Fouche disagrees.
¶3. Triangle asserts that while it performed its
obligations satisfactorily under the Contract's terms,
EMWA and Fouche did not. Specifically, Triangle argues that
EMWA and Fouche did not obtain easements in a timely manner,
as they had agreed to do in the Contract. Triangle further
argues that EMWA and Fouche prematurely and negligently
issued a notice instructing Triangle to proceed with its work
("Notice to Proceed") far before the easements
necessary to continue that work had been acquired. Triangle
maintains that these failures resulted in delays, as
"Triangle could not perform its contractually obligated
work" in "significant areas of the [p]roject."
Furthermore, Triangle asserts that, even after the
appropriate easements had finally been attained, neither EMWA
nor Fouche gave Triangle notice that it could continue its
work, resulting in more unnecessary delays.
¶4.
Triangle also argues that Fouche elected to expand the size
and scope of the project "long after the [p]roject had
been designed, sealed by [Fouche], and long after the Notice
to Proceed . . . had been issued to Triangle." Triangle
asserts that, as a result, EMWA and Fouche "made
repeated oral promises to Triangle that [they] would execute
a 'Summary Change Order' that would fairly compensate
Triangle for the greatly-expanded scope of work that it was
commanded to perform"; however, Triangle maintains that
it never received such an order.
¶5.
Triangle contends that, upon ultimate completion of the
project, EMWA sent Triangle a check marked "Final
Payment, " but the check did not compensate Triangle for
its increased construction costs as a result of the delays or
for the extracontractual project expansion. Triangle concedes
that it cashed the check, but argues that it repeatedly
asserted to EMWA-including in a letter sent to Fouche-that it
did not consider EMWA's "final payment" to be
final and that it would continue seeking the remainder of
what it was owed.
¶6.
Triangle's lawsuit against both EMWA and Fouche, as
codefendants, alleged breach of contract, unjust enrichment
or quantum meruit, breach of the covenant of good faith and
fair dealing, and negligence. As stated, the circuit court
granted Fouche's motion for summary judgment, leading to
this appeal.
¶7. Additional facts, as necessary, will be discussed
throughout the opinion.
DISCUSSION
¶8.
Rule 56(c) of the Mississippi Rules of Civil Procedure
provides that a motion for summary judgment shall be granted
if "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." M.R.C.P. 56(c). "We
review the grant or denial of a motion for summary judgment
de novo, viewing the evidence 'in the light most
favorable to the party against whom the motion has been
made.'" Karpinsky v. Am. Nat'l Ins.,
109 So.3d 84, 88 (¶9) (Miss. 2013) (quoting Pratt v.
Gulfport-Biloxi Reg'l Airport Auth., 97 So.3d 68, 71
(¶5) (Miss. 2012)). "However, to survive summary
judgment, the party opposing the motion may not rest upon the
mere allegations or denials of his pleadings, but his
response . . . must set forth specific facts showing there is
a genuine issue for trial." Huynh v. Phillips,
95 So.3d 1259, 1262 (¶6) (Miss. 2012) (citation and
internal quotation marks omitted). "Summary judgment is
appropriate where a non-moving party who will bear the burden
of proof at trial does not establish the existence of an
essential element to his case." Gorman-Rupp Co. v.
Hall, 908 So.2d 749, 757 (¶ 25) (Miss. 2005)
(citation omitted).
¶9.
For clarity, we will first address whether Triangle's
negotiation of EMWA's check marked "final
payment" operated as an accord and satisfaction of its
claims against EMWA and Fouche; next, we will address
Triangle's contract claims, including both Fouche's
status as a party to the Contract and whether Fouche was
contractually obligated to acquire the easements; finally, we
will address ...