Aladdin Const. Co. Inc. v. John Hancock Life Ins. Co.
Decision Date | 27 October 2005 |
Docket Number | No. 2004-CA-00090-SCT.,2004-CA-00090-SCT. |
Citation | 914 So.2d 169 |
Parties | ALADDIN CONSTRUCTION COMPANY, INC., Brightway Services, Inc., Jones Sign Company, Inc. and Robert Joe Hill d/b/a J-N-H Construction v. JOHN HANCOCK LIFE INSURANCE COMPANY. |
Court | Mississippi Supreme Court |
Joseph Q. White, Pascagoula, Jr., John G. McDonnell, Biloxi, Henry P. Pate, attorneys for appellants.
Rick Andrew La Trace, attorney for appellee.
EN BANC.
¶ 1. In July of 1999, John Hancock Mutual Life Insurance Company ("John Hancock"), owner of Singing River Mall, entered into a contract with McMo, Inc. ("McMo") to provide project management services, in addition to design and construction documentation services, for a renovation of the mall. The contract provided that McMo's role in the later stages shall be construction leader, acting in the interests of John Hancock and directing the contractors (the "Fabricator/Suppliers"). Thereafter, McMo entered into separate agreements with Aladdin Construction Company, Brightway Services Inc., Jones Sign Company, and J-N-H Construction ("Plaintiffs"), as contractors, whereas McMo is identified as the "construction manager," retained by "Owner" John Hancock. John Hancock routed all payments due the Plaintiffs through McMo, up to the full contract price. However, McMo failed to pay either all or part of what was owed to each Plaintiff. McMo subsequently filed for bankruptcy. Plaintiffs now seek payment from John Hancock first arguing inter alia that McMo acted as an agent of John Hancock, so as to bind John Hancock under agency law. John Hancock argues that McMo was not its agent, but rather a general contractor and Plaintiffs, should be considered subcontractors who, by failing to timely utilize Miss.Code Ann. § 85-7-181 (1999) (the "stop notice" statute), are estopped from recovery against John Hancock.
¶ 2. On July 30, 1999, John Hancock entered into a Mall Renovation Agreement with McMo providing that McMo would engage in "design, construction documentation and project management consulting services" at Singing River Mall. Specifically, McMo contractually agreed to solicit and analyze bid proposals,1 make recommendations to John Hancock therefrom,2 negotiate construction agreements with Fabricator/Suppliers [Plaintiffs] for John Hancock,3 route payments from John Hancock to Fabricator/Suppliers,4 and oversee the supervision, control, and selection of third-party services.5 Throughout, McMo was to act in the interests of John Hancock.6 The John Hancock-McMo contract specifically stated that, However, the designation of McMo as not an employee, but rather an independent contractor, does not foreclose the inquiry of whether McMo was also an agent vel non. A party can be both an independent contractor and an agent as the two roles are not mutually exclusive.7 The "Recommend Fabricator/Supplier(s)" provision, the "Negotiate Construction Agreement(s)" provision, and the "Manage Construction Funds and Pay Applications" provision of the John Hancock-McMo contract are clearly atypical of the role of a general contractor. Unquestionably, McMo was subject to John Hancock's control as to its conduct. Moreover, the John Hancock-McMo contract submitted that apart from life-safety issues, "[John Hancock] shall not communicate directly with the Fabricator/Suppliers, and shall refer all inquiries from any of them to McMo." None of the Plaintiff-Appellants were signatories to the Mall Renovation Agreement between John Hancock and McMo.
¶ 3. McMo then contracted with each Plaintiff to perform renovation work on Singing River Mall. Each Plaintiff entered into a separate contract with McMo. These contracts specifically refer to each Plaintiff as "Contractor,"8 John Hancock as "Owner," and McMo as "Construction Manager." Each contract also defined "construction manager" as "McMo Incorporated, retained by agreement with Owner to provide construction management services." The payment clause specifically provided for the Plaintiffs "to submit to Construction Manager its monthly application for payment promptly on the date established by Construction Manager, so as to enable Construction Manager to forward the application to Owner for payment." Essentially, the contract called for all services to be performed under the oversight, and to the satisfaction, of both McMo and John Hancock.9 Despite the required approval of both McMo and John Hancock, Plaintiffs were contractually required to direct all dealings to McMo.10 This requirement was particularly significant given the contractual presence of a "pay-when-paid" provision.11 Finally, the contract expressly required John Hancock to be named as one of the insureds under applicable insurance policies.12
¶ 4. According to Tina Dubose, General Manager for the Singing River Mall, upon receipt of the Plaintiffs' pay applications, McMo would forward an invoice directly to John Hancock and John Hancock would then review and approve the invoice for payment. Thereafter, John Hancock would forward the McMo invoice to Dubose with instructions to draft a check drawn on John Hancock's Singing River Mall operating account, payable only to McMo.13
¶ 5. John Hancock forwarded to McMo all monies which were due to the Plaintiffs, and monies due for McMo's separate fees.14 Instead of making payments to Plaintiffs from the payments received from John Hancock, McMo used the funds for other purposes. McMo failed to pay Plaintiffs, falsely insisting that it was waiting on payment from John Hancock, and became insolvent soon after. With McMo insolvent, Plaintiffs sought recovery from John Hancock arguing that McMo was an agent of John Hancock.15 Separate actions were filed in both the Circuit Court of Jackson County and the Chancery Court of Jackson County. The circuit court case was transferred to chancery court, and all cases were then consolidated.
¶ 6. The Jackson County Chancery Court concluded that there were no genuine issues of material fact and granted John Hancock's motion for summary judgment. The chancellor found that McMo was acting as a general contractor under this Court's definition found in Associated Dealers Supply, Inc. v. Mississippi Roofing Supply, Inc., 589 So.2d 1245, 1247-48 (Miss.1991). In essence, the chancellor determined that McMo had total control over the manner and means of performance under the contract, that no Plaintiffs had direct contact with John Hancock, and that John Hancock paid McMo prior to proper notice of non-payment or the filing of a mechanic's lien by any Plaintiff. Furthermore, the chancellor held that there was no agency relationship, explicit or implicit, between McMo and John Hancock.
¶ 7. In seeking a reversal and remand to the chancery court for a trial on the merits, the Plaintiffs raises numerous issues on appeal. It appears that the relief sought is controlled by two overriding, dispositive issues: (1) Was McMo a general contractor or an agent of John Hancock? If an agent of John Hancock, then McMo's actions bind John Hancock regardless of Plaintiffs failure to file a timely stop-payment notice under § 85-7-181. If a general contractor, Plaintiffs are arguably mere subcontractors, and § 85-7-181 controls. Assuming such, Plaintiffs failure to file a timely stop-payment notice would preclude recovery against John Hancock. (2) Were Plaintiffs required to be in privity with John Hancock in order to establish contractual obligations between the parties? If the answer is yes, then the absence of privity between Plaintiffs and John Hancock in the John Hancock-McMo contract and the lack of privity between John Hancock and Plaintiffs in the agreements between McMo and Plaintiffs, renders the Plaintiffs contractual obligation argument null. If the answer is no, however, then Plaintiffs may establish that John Hancock had an obligation to pay them under a third-party beneficiary theory.
¶ 8. "This Court does not sit to redetermine questions of fact." In re City of Horn Lake, 630 So.2d 10, 19 (Miss.1993) (citing Johnson v. Black, 469 So.2d 88, 90 (Miss.1985)). However, a de novo standard of review is applied to questions of law, see G.B. "Boots" Smith Corp. v. Cobb, 860 So.2d 774, 777 (Miss.2003), legal conclusions, see Andrew Jackson Life Insurance Co. v. Williams, 566 So.2d 1172, 1183-84 (Miss.1990), and jurisdictional questions, see McCain Builders, Inc. v. Rescue Rooter, LLC, 797 So.2d 952, 954 (Miss.2001).
¶ 9. Under Rule 56(c) of the Mississippi Rules of Civil Procedure, "judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Miss. R. Civ. P. 56(c). "This Court employs a de novo standard in reviewing a trial court's grant of summary judgment." Noxubee County Sch. Dist. v. United Nat'l Ins. Co., 883 So.2d 1159, 1163 (Miss.2004) (citing O'Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001)). "In conducting the de novo review, this Court looks at all evidentiary matters, including admissions in pleadings, answers to interrogatories, depositions, and affidavits." Id. (citing Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So.2d 845, 847 (Miss. 2001)). "This evidence must be viewed in the light most favorable to the party against whom the motion for summary judgment has been made." Id. (citing Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209 (Miss.2001)). ...
To continue reading
Request your trial-
The Carl Ronnie Daricek Living Trust v. Hancock County, 2009-IA-01513-SCT
...of statutes claimed to be in conflict, are legal questions subject to de novo review. See Aladdin Constr. Co., Inc. v. John Hancock Life Ins. Co., 914 So.2d 169, 174 (Miss.2005). DISCUSSIONI. Whether the Seawall Act is unconstitutional. ¶ 13. The landowners argue the following:[T]he Seawall......
-
Mortera v. State Farm Fire & Cas. Co.
...that a party is within the intent of the terms used when the party is explicitly named in the contract. Aladdin Constr. Co. v. John Hancock Life Ins. , 914 So. 2d 169, 180 (Miss. 2005) (finding that the explicit references in the contract to the third parties demonstrated that they were par......
-
Gross v. GGNSC Southaven, L.L.C.
...burden of proof as to the existence of an agency relationship rests with the party asserting it." Aladdin Constr. Co., Inc. v. John Hancock Life Ins. Co., 914 So.2d 169, 177 (Miss.2005). Here, therefore, the burden rests on Southaven. After examining Mississippi case law, Judge Mills held t......
- Belmont Holding, LLC v. Davis Monuments, LLC