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Mathes Electric Supply Co., Inc. v. Can't Be Beat Fence Co., LLC

Court of Appeals of Mississippi

September 4, 2018

MATHES ELECTRIC SUPPLY CO., INC. APPELLANT
v.
CAN'T BE BEAT FENCE COMPANY, LLC AND INTERNATIONAL FIDELITY INSURANCE COMPANY APPELLEES

          DATE OF JUDGMENT: 09/09/2016

          HANCOCK COUNTY CIRCUIT COURT, HON. LAWRENCE PAUL BOURGEOIS JR. JUDGE.

          ATTORNEY FOR APPELLANT: BILLY C. CAMPBELL JR.

          ATTORNEYS FOR APPELLEES: MARK D. HERBERT MICHAEL MADISON TAYLOR JR. J. HENRY ROS.

          BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.

          BARNES, J.

         ¶1. On March 10, 2009, Can't Be Beat Fence Company LLC (CBB) entered into a contract with the City of Bay St. Louis, Mississippi, for the construction of the Bay St. Louis Commagere Ballfield (Project). As required by Mississippi Code Annotated section 31-5-51 (Rev. 2008), CBB, as the principal, and International Fidelity Insurance Company (International Fidelity), as the surety, executed a labor-and-material payment bond. CBB entered into a subcontract with Greg Williams Electric Co. Inc. (Williams) for electrical work on the Project.

         ¶2. Mathes Electric Supply Co. Inc. (Mathes) provided Williams with materials for the Project. Although CBB paid Williams for its work, Williams never paid Mathes for the materials; so on April 1, 2010, Mathes submitted a payment-bond claim to CBB and International Fidelity. The insurance company denied the claim. On November 22, 2010, Mathes filed suit against Williams, CBB, and International Fidelity in Hancock County Circuit Court, alleging several causes of action, including bad faith on the part of International Fidelity for failing to remit its claim.[1] Mathes requested compensatory damages of $97, 740.34, along with interest, costs of debt collection, and attorney's fees, as well as punitive damages for its bad-faith claim against International Fidelity.

         ¶3. On February 8, 2012, CBB and International Fidelity (the Appellees) filed a motion for summary judgment, asserting Mathes "failed to provide any evidence that it gave proper notice pursuant to [section] 31-5-51," which provides:

Any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety (90) days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be given in writing by the claimant to the contractor or surety at any place where the contractor or surety maintains an office or conducts business. Such notice may be personally delivered by the claimant to the contractor or surety, or it may be mailed by certified mail, return receipt requested, postage prepaid, to the contractor or surety. No such action may be maintained by any person not having a direct contractual relationship with the contractor-principal, unless the notice required by this section shall have been given.

(Emphasis added). The Appellees argued that because there was "no evidence that any of the materials invoiced by Mathes in the [ninety-day] notice period [(January 1-April 1, 2010)] were incorporated into the [P]roject," the bond claim was untimely filed. They also asserted that summary judgment was appropriate for the claim of bad faith as the lack of notice was "a justifiable reason to deny Mathes's payment[-]bond claim."

         ¶4. Mathes responded, attaching two affidavits from two of Williams' employees, Sid Carroll and Charles Tow. Attesting that he was "competent to testify" and was making "th[e] affidavit from personal knowledge," Carroll, an estimator for Williams, averred that he had "performed work on the Commagere Ballfield Project," and material referenced in Mathes's Invoice 19640-00, dated January 12, 2010, "was incorporated into the Commagere Ballfield Project and/or was used and/or consumed in the course of the construction of the Commagere Ballfield Project." The invoice was attached to Carroll's affidavit. Tow, the Project supervisor for Williams, also testified that materials from Mathes had been incorporated in the Project, but the invoices referenced in his affidavit were all dated prior to January 1, 2010.

         ¶5. On April 19, 2012, the Appellees filed a rebuttal and a motion to strike Carroll's affidavit, contending the affidavit was "problematic and self-serving because he was not actually at the [P]roject at the time the materials would have been used in the [P]roject." To support its motion, the Appellees submitted "daily logs" dated January 5, 2010, to January 13, 2010, that Williams had provided to CBB. The only employees listed as working onsite at the Project were Tow, Vern Richardson, and Randy Breeden-Carroll was not listed. Mathes filed a motion to stay consideration of the Appellees' motion for summary judgment, as to the bad-faith claim, pending completion of discovery.

         ¶6. A hearing on the motion for summary judgment was held April 19, 2012, after which the circuit court asked the parties to submit proposed findings of undisputed facts and conclusions of law. Mathes continued to conduct discovery, deposing Tow and Goff. Tow testified unequivocally that materials listed in invoices dated after January 1, 2010, were used in the Project. Mathes filed Tow's March 31, 2014 deposition with the circuit court on ...


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