Lowe v. Lowndes County Building Inspection DepartmentLowe v. Lowndes County Building Inspection Department
- Reporters:
- ,
- Before:
- Banks, Pittman, Mills, McRae, Smith, Waller, Cobb
Armstrong Walters, Columbus, Attorney for Appellee.
BEFORE PITTMAN AND BANKS, P.JJ. and MILLS, J.
BANKS, Presiding Justice, for the Court:
¶ 1. This case presents the question whether a county may be held liable in tort for damages for issuing a permit to perform work when it knows that the applicant
I.
a.
¶ 2. This appeal arises out of a contract entered into between the appellants, Malcolm and Harriet Lowe (The Lowes), and Donna Kay Lynn (Lynn) pursuant to which Lynn was to perform certain described carpentry, painting, electrical and foundation work on the residence owned by the Lowes located on Highway 69 South in Columbus, Mississippi. Lynn did not possess a valid licensе from the Mississippi State Board of Contractors as required by
¶ 3. The Lowes filed their complaint against LCBID on March 8, 1999, alleging that LCBID was negligent in issuing a building permit to Housing, Inc., on Lynn‘s application, when it knew that she did not posses a valid liсense as required by
¶ 4. LCBID filed a motion to dismiss admitting the facts, but alleging, inter alia, that no contractual relationship existed between the partiеs, and that the Lowes’ own negligence was the sole proximate cause of their harm. LCBID filed a subsequent motion to dismiss ten days later, alleging sovereign immunity pursuant to
b.
¶ 5. The Lowes and Lynn entered into a contract which Lynn would perform certain described carpentry, painting, electrical and foundation work on a residence owned by the Lowes located on Highway 69 South in Columbus, Mississippi. Several add ons to the contract were agreed to, and the final price, for performing all the work specified on the contract was $46,380. Lynn represented to the Lowes that she was licensed and bonded. However, Lynn did not posses a valid license from the MSBC as required by
II.
a.
¶ 6. A motion for dismissal under Miss. R. Civ. P. 12(b)(6) raises an issue of law. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990) (citing Lester Eng‘g Co. v. Richland Water & Sewer Dist., 504 So.2d 1185, 1187 (Miss.1987)). This Court reviews questions of law de novo. Tucker, at 872 (citing UHS-Qualicare, Inc. v. Gulf Coast Community Hosp., Inc., 525 So.2d 746, 754 (Miss.1987)). Under de novo review, this Court will affirm only if it can be shown, beyond doubt, no set of facts would entitle the Lowes to relief. Robinson v. Stewart, 655 So.2d 866, 867 (Miss.1995) (citing Tucker, at 872).
b.
¶ 8. This case turns upon the application and interpretation of the terms “arbitrary and capricious” in
(1) A governmental entity and its employees acting within the course and scope of their emplоyment or duties shall not be liable for any claim:
(h) Arising out of the issuance, denial, suspension, or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilegе, ticket, pass, permit, license, certificate, approval, order or similar authorization where the governmental entity or its employees is authorized by law to determine whether or not such authorization should be issued, denied, suspended, or revoked unless such issuance, denial, suspension or revocation, or failure or refusal thereof, is of a malicious or arbitrary and capricious nature.
(emphasis supplied).
¶ 9. Specifically, the question is, whether the failure of LCBID to abide by
¶ 10. Black‘s Law Dictionary defines “arbitrary and capricious” as “[c]haracterization of a decision or action taken by an administrative agency or inferior court meaning willful and unreasonable action without consideration or in disregard of facts or law or without determining principle.” Black‘s Law Dictionary 105 (6th ed.1990) (emphasis added).
¶ 11. We have yet to define the terms “arbitrary and cаpricious” in the context of
An act is arbitrary when it is done without adequately determining principle, not done according to reason оr judgment, but depending upon the will alone,—absolute in power, tyrannical, despotic, non-rational,—implying either a lack of understanding of or a disregard for the fundamental nature of things ... An аct is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settle controlling principles.
Id. at 1240 (quoting In re Housing Authority of City of Salisbury, 235 N.C. 463, 70 S.E.2d 500, 503 (1952)); see also Melody Manor Convalescent Ctr. v. Mississippi State Dep‘t of Health, 546 So.2d 972, 974 (Miss.1989); Mississippi State Tax Commission v. Dyer Inv. Co., 507 So.2d 1287, 1289 (Miss.1987); State Bd. of Psychological Examiners v. Coxe, 355 So.2d 669, 671 (Miss.1978).
¶ 12. In Mississippi Dep‘t of Envtl. Quality v. Weems, 653 So.2d 266 (Miss. 1995), this Court determined that the Mississippi Commission on Environmental Quality acted arbitrarily and capriciously by failing to follow clear statutory directives, stating:
[T]he Commission‘s actions, as stated in its ruling, indicate an arbitrary and capricious reaction. An administrative act is arbitrary and capricious if the agency `entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so imрlausible that it could not be ascribed to a difference in view or the product of any agency expertise.” 2 Am Jur 2d § 530 at 519 (1994). In addition, the failure of an agency to abide by its rules is per se arbitrary and capricious as is the failure of an administrative body to conform to prior procedure without adequate explanation for the change. Id.
¶ 13. The Lowes argue thаt this Court recently specifically ruled that immunity will not attach where a governmental entity fails to abide by a statutory mandate, stating: “[u]nder this statute, as long as ordinary care is used while performing statutory duty, immunity exists. But when the state actor fails to use ordinary care in executing and performing or failing to execute or perform an act mandated by statute there is no shield of immunity.” L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141 (Miss. 1999) (emphasis added).
¶ 14. LCBID does not dispute the allegations in the complaint. LCBID argues that the Lowes are dissatisfied with work performed by subcontractor Lynn and seek to expand
¶ 15. Paragraph VI of plaintiffs’ complaint reads as follows:
The Lowndes County Building Inspection Department, knowing that Lynn was the contractor performing the work and knowing that Lynn was not properly licenсed pursuant to Miss.Code Ann. § 73-59-3 allowed Lynn to sign the building permit application as agent for Housing, Inc. The permit was issued by the department despite knowledge by the department at all relеvant times hereto that Housing, Inc. had no contract with Plaintiff and was not performing any contract work for Plaintiff. At no times relevant hereto did the department notify Plaintiffs or the Mississippi Statе Board of Contractors that Lynn did not posses a valid license all in violation of Miss.Code Ann. § 73-59-17.
We assume these facts to be true at this stage. Whether they are and, if so, whether the acts of the county were a proximate cause of injury to the plaintiff are issues yet to be resolved. We decide only that, accepting the allegations as true, the county has engaged in arbitrary and capricious conduct violative of a statutory mandate.
¶ 16.
[LCBID] shall refuse to issue a permit for any undertaking which would classify the applicant as a residential builder or remodeler under this chapter unless the applicant has furnished evidence that he is either licensed ... or exempt.... [LCBID] shall also report to [MSBC] the name and address of аny person who... has violated this chapter by accepting, or contracting to accomplish, work which would classify the person as a residential builder or remodeler ... without а license or acknowledgment.
¶ 17. As we stated earlier we must take the Lowes’ complaint as true. It is clear that if LCBID knew, as alleged, that Lynn was not licensed and that Lynn had contractеd to performed the work, LCBID would be in violation of
¶ 18. For the foregoing reasons the judgment of the circuit court is reversed, and this case is remanded to that court for further proceedings consistent with this opinion.
¶ 19. REVERSED AND REMANDED.
PITTMAN, P.J., McRAE, SMITH, MILLS, WALLER AND COBB, JJ., CONCUR. PRATHE