Evan Johnson & Sons Const., Inc. v. Miss., et al.
| Docket Number: | 2001-CA-01675-SCT Linked Case(s): 2001-CA-01675-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 03-04-2004 Opinion Author: Carlson, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Breach of contract - Wrongful termination - Commercial impossibility - Defective design - Liquidated damages Judge(s) Concurring: Pittman, C.J., Smith, P.J., Easley and Dickinson, JJ. Non Participating Judge(s): Waller, P.J., and Diaz, J. Dissenting Author : Cobb, J. Concurs in Result Only: Graves, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 08-27-2001 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: Granted summary judgment to Appellees. Case Number: 251-97-1410 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Evan Johnson & Sons Construction, Inc. |
RICHARD M. DYE
PHIL B. ABERNETHY |
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| Appellee: | The State of Mississippi and Tompkins, Barron & Fields Architects, A Partnership | OFFICE OF THE ATTORNEY GENERAL BY: T. HUNT COLE, JR. EDWARD OMER PEARSON PETER LARKIN DORAN T. CALVIN WELLS BARRY CLAYTON CAMPBELL |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Breach of contract - Wrongful termination - Commercial impossibility - Defective design - Liquidated damages |
| Summary of the Facts: | Evan Johnson & Sons Construction, Inc. was awarded a contract to build the STARC Armory facility which was owned by the State through the Mississippi National Guard. Tompkins, Barron & Fields Architects was selected as the architect. Independent Roofing, Inc. was Johnson's roofing subcontractor. Johnson completed all portions of the project except the construction of the curved portion of the roof, which was to be performed by Independent Roofing. Independent Roofing informed Johnson that the construction as specified in the plans would not achieve the results sought by the State. Johnson notified the State of Independent Roofing's discovery; however, the State and Tompkins instructed Independent Roofing to install the roof as specified in the design. Notwithstanding this clear directive, Johnson attempted to place the roof over a structure of corrugated "S" deck which did not incorporate the use of bent or rolled "Z" purlins. After work was ceased, two cure notices were sent to Johnson directing the company to proceed with the project. As of the scheduled completion date, the roof had not been completed by Johnson, and the contract was then terminated by the State. Johnson filed a complaint against the State and Tompkins alleging breach of contract by the State due to the State’s alleged failure to submit plans and specifications which would produce the desired result; breach of implied warranty by the State; negligence by Tompkins; wrongful termination and breach of contract by the State; and, breach of contract by the State due to the State’s alleged failure to make timely payments under the contract. The State filed a counterclaim for liquidated damages and costs paid to complete the project. Tompkins filed a motion for summary judgment. The court granted summary judgment against Johnson and in favor of the State and Tompkins and dismissed with prejudice all claims asserted by Johnson against the State and Tompkins, but kept viable the State’s counterclaim for liquidated damages against Johnson. The State then filed a motion for summary judgment on its counterclaim for liquidated damages which the court granted. The court entered a judgment against Johnson and its surety in the amount of $119,150.34. Johnson appeals. |
| Summary of Opinion Analysis: | Issue 1: Wrongful termination Johnson argues that the affidavit of its expert specifically outlines the inadequacies of the design and the reasons the design fails to comply with the standard of care which should be exercised by a reasonably prudent architect. However, the affidavit was conclusory and did not present a material issue of genuine fact. Johnson also argues that the plans and specifications for the curved portion of the barrel vaulted roof were defective and ambiguous and therefore, the termination of Johnson's contract for failure to complete the roof was wrongful and a breach of contract. Several factors have been considered in evaluating a claim of commercial impossibility including whether any other contractor was able to comply with the specifications and the extent of the contractor's efforts in meeting the specifications. The subjective experience of the contractor is a factor that must be considered when determining whether a contract is commercially impossible. Johnson failed in his burden of proving impossibility not only on a subjective basis, but also on an objective basis. Because Johnson failed to prove any other contractor was unable to comply with the original design and specifications and because Johnson failed to attempt to construct the roof according to the original design and specifications, Johnson's claim for defective design fails. Issue 2: Liquidated damages Johnson argues that the grant of summary judgment in favor of the State regarding the counterclaim for liquidated damages was improper. Paragraph 5 of the government construction contract between the parties explicitly and expressly provides for the termination and award of contractual liquidated damages against the contractor for such delay-default. Paragraph 108 of the contract expressly sets the contractual rate of liquidated damages for delay. Johnson failed to rebut the State's evidence, and therefore, the court's grant of summary judgment in favor of the State as to liquidated damages was proper. |
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