Triangle Construction Co., Inc. v. Fouche and Associates, Inc.
218 So. 3d 1180
| Miss. Ct. App. | 2017Background
- Triangle Construction contracted with East Madison Water Association (EMWA) to build a water distribution system under the "Specifications for Water Distribution System Addition 2009." Fouche was the project engineer but did not sign the owner–contractor agreement.
- Triangle alleges EMWA and Fouche failed to obtain necessary easements timely, issued a premature "Notice to Proceed," expanded the project scope orally, and failed to issue a promised summary change order, causing delays and increased costs.
- EMWA issued a check to Triangle marked "Final Payment" for $129,090.07, which Triangle cashed but sent correspondence (addressed to Fouche) asserting it did not waive additional claims.
- Triangle sued EMWA and Fouche for breach of contract, quantum meruit/unjust enrichment, breach of covenant of good faith, and negligence. The circuit court granted summary judgment for Fouche; Triangle appealed.
- On appeal the court addressed (1) whether cashing EMWA’s "Final Payment" check effected accord and satisfaction as to Fouche, (2) whether Fouche was a contracting party or had an implied-in-fact contract to obtain easements, and (3) whether Fouche owed tort duties to Triangle.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accord and satisfaction from cashing EMWA's check | Cashing the check did not waive claims; Triangle expressly reserved rights and continued pressing claims | Cashing a check labeled "Final Payment" constitutes accord and satisfaction, barring further claims | Held for defendant: cashing EMWA's "Final Payment" check constituted accord and satisfaction as to claims against Fouche (Triangle cannot have it both ways re: agency) |
| Whether Fouche was an express party to the Contract | Fouche was effectively a party: its seal appears on documents and §3.01 designates Fouche as EMWA's representative with authority | Contract title and terms show agreement is between Owner (EMWA) and Contractor (Triangle); §9.09(A) expressly disclaims duties owed by Fouche to Triangle | Held for defendant: Fouche is not an express contracting party; Contract limits Fouche's duties and disclaims obligations to Triangle |
| Whether an implied-in-fact contract required Fouche to obtain easements | Triangle points to conduct and alleged day-to-day control by Fouche to show an implied duty to procure easements | Contract §4.01 unambiguously makes EMWA responsible for easements; evidence (letters/deposition) supports EMWA's responsibility | Held for defendant: no genuine issue that EMWA—not Fouche—was responsible; no implied-in-fact contract shown |
| Whether Fouche owed tort duties to Triangle (negligence) | Engineer owed duty to contractor to exercise reasonable professional skill; Fouche negligently designed, expanded scope, and issued premature/late notices causing damages | §9.09(A) limits/negates duties owed by Fouche to Triangle; Triangle’s evidence is insufficient to show extracontractual duty or proximate cause | Held for defendant: no extracontractual duty established; summary judgment proper on tort claims |
Key Cases Cited
- Dix v. Trigger Contractors, Inc., 337 So. 2d 694 (Miss. 1976) (cashing a check marked "Final Payment" can constitute accord and satisfaction)
- Magnolia Constr. Co. v. Miss. Gulf S. Eng’rs, Inc., 518 So. 2d 1194 (Miss. 1988) (engineers may owe duties to contractors derived from the engineer–owner contract; duty scope determined from contract)
- Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84 (Miss. 2013) (standard of review for summary judgment: de novo, viewing evidence for nonmoving party)
- Franklin v. Franklin ex rel. Phillips, 858 So. 2d 110 (Miss. 2003) (elements and effect of contracts implied in fact / quasi-contract unjust enrichment)