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Triangle Construction Co. Inc. v. Fouche & Associates, Inc.

Court of Appeals of Mississippi

May 9, 2017


          DATE OF JUDGMENT: 10/07/2015




         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.


         ¶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.


         ¶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 ...

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