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Springer v. Ausbern Construction Co., Inc.

Supreme Court of Mississippi, En Banc

October 19, 2017

EDWARD SPRINGER
v.
AUSBERN CONSTRUCTION CO., INC.

          DATE OF JUDGMENT: 05/08/2014

         ON WRIT OF CERTIORARI

         CHICKASAW COUNTY CIRCUIT COURT HON. ANDREW K. HOWORTH TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: REX F. SANDERSON BARRETT JEROME CLISBY

          ATTORNEYS FOR APPELLEE: MARK D. HERBERT SABRINA BOSARGE RUFFIN BRADFORD COLEMAN RAY

          COLEMAN, JUSTICE.

         ¶1. A Lafayette County jury awarded Ausbern Construction Company, Inc. (Ausbern) a verdict of $182, 500 against Chickasaw County Engineer Edward Springer in his individual capacity for tortious interference with a road-construction contract. On appeal, the Mississippi Court of Appeals reversed the $182, 500 judgment and rendered judgment in favor of Springer. Springer v. Ausbern Constr. Co., Inc., 2016 WL 4083981, at *1 (¶ 1) (Miss. Ct. App. Aug. 2, 2016). The Court of Appeals held that the element of tortious interference that constitutes malice was not satisfied because Springer's actions were not without right or justifiable cause. Id.

         ¶2. Although the lack of evidence demonstrating malice was dispositive to the decision to reverse and render, a majority of the Court of Appeals alternatively held that Ausbern's claim against Springer had implicated the Mississippi Tort Claims Act and the trial court had erred by failing to grant Springer's motion to dismiss due to lack of presuit notice. Id. Our review of the record does not support the Court of Appeals' conclusion that Springer raised the issue of presuit notice in his motion to dismiss. Although Springer raised lack of notice as an affirmative defense in his answer to Ausbern's first amended complaint, he simply argued that he was entitled to immunity in support of his motion to dismiss. While we do not disturb the dispositive holding reached by the Court of Appeals resulting in the rendered judgment in favor of Springer, we grant Ausbern's petition for writ of certiorari resolve the Court of Appeals' perceived conflict between Zumwalt v. Jones County Board of Supervisors, 19 So.3d 672 (Miss. 2009), and Whiting v. University of Southern Mississippi, 62 So.3d 907 (Miss. 2011).

         ¶3. In short, we hold that Whiting did not overrule, sub silentio, Zumwalt as the Court of Appeals presumed in reaching its alternative holding. See Springer, 2016 WL 4083981, at *5 (¶ 22). To be certain, we overrule Whiting to the extent it held that a claim for tortious interference with a contract is subject to presuit notice requirements of the Tort Claims Act. As more fully explained below, Ausbern's claim against Springer in his individual capacity for tortious interference with the contract did not trigger the presuit notice requirements of the Tort Claims Act.

         FACTS AND PROCEDURAL HISTORY

         ¶4. In November 2010, Ausbern was awarded a contract with Chickasaw County for a road-construction project. Ausbern's low bid for the contract was based on unit specifications prepared by the office of Chickasaw County's engineer, Springer. Springer had estimated that 7, 689 cubic yards of 304A fill material would be required. The project actually required 17, 700 cubic yards of the unit material.

         ¶5. On January 23, 2012, Ausbern filed a formal claim for payment for the overage with the State Aid Office. On February 2, 2012, State Aid Division Engineer Joel Bridges sent a letter to Springer, acknowledging the error of the estimated quantity of the unit material. Bridges recommended payment to Ausbern for 17, 700 cubic yards of the unit material at the contract price per unit. On March 1, 2012, Springer sent a letter to Ausbern admitting the discrepancy between the estimated amount of unit material and the unit material actually used for the project. In an effort to mitigate Ausbern's claim for the contract adjustment, Springer offered Ausbern eight dollars per cubic yard for the overage rather than the contract unit price of $19.50. Ausbern declined to negotiate.

         ¶6. On March 29, 2012, Ausbern filed a complaint against the Board of Supervisors of Chickasaw County, alleging breach of contract. On July 12, 2012, Ausbern filed an amended complaint adding Springer as a defendant in his individual capacity for tortious interference with the contract. Ausbern alleged that a binding contract existed between Ausbern and the County as of November 23, 2010. Ausbern alleged that Springer, who had knowledge of the contract, intentionally, willfully, and with malice toward Ausbern induced the County to breach its contractual obligations. On August 15, 2012, Springer filed an answer to the amended complaint, arguing that Ausbern had not complied with the notice requirements of the Tort Claims Act.

         ¶7. The jury awarded Ausbern $387, 793.50 against the County for breach of contract. The County did not appeal the judgment. The jury awarded Ausbern $182, 500 against Springer for tortious interference with the contract. Springer appealed following the trial court's denial of his motion for judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial.

         ¶8. On appeal, the Court of Appeals reversed the $182, 500 judgment against Springer and rendered judgment because the element of tortious interference that constitutes malice was not satisfied. Springer, 2016 WL 4083981, at **1, 5 (¶¶ 1, 22). A unanimous Court of Appeals held that

Springer acted within the scope of his responsibility to the County and without bad faith. Because his actions were not "without right or justifiable cause, " the element of tortious interference that constitutes malice was not satisfied.

Springer, 2016 WL 4083981, at *1. Despite Ausbern's claim against Springer for tortious interference with the contract failing as a matter of law due to no evidence of malice, an essential element of the tort, the Court of Appeals proceeded to address a separate issue not necessary to its decision.

         ¶9. According to a majority of the Court of Appeals,

Springer argued pretrial in his motion to dismiss and argues again here on appeal that the tortious-interference claim against him as a governmental employee implicated the Mississippi Tort Claims Act and that Ausbern was therefore required to comply with the Act's pre-suit notice requirements. See Miss. Code Ann. § 11-46-11(1) (Rev. 2012); Ivy v. E. Miss. State Hosp., 191 So.3d 120, 122 (ΒΆ 8) (Miss. 2016). We agree with Springer's ...

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