Bradley v. Kelley Bros. Contractors, Inc.

• Decision Date: 11 June 2013
• Docket Number: No. 2011–CA–00776–COA.,2011–CA–00776–COA.
• Citation: 117 So.3d 331
• Parties: Wyman BRADLEY and Gloria Jerone Bradley, Appellants v. KELLEY BROTHERS CONTRACTORS, INC., Gregory Revette and Clyde Revette, Appellees.
• Court: Mississippi Court of Appeals

117 So.3d 331

Wyman BRADLEY and Gloria Jerone Bradley, Appellants

v.KELLEY BROTHERS CONTRACTORS, INC., Gregory Revette and Clyde Revette, Appellees.

No. 2011–CA–00776–COA.

Court of Appeals of Mississippi.

June 11, 2013.

Clarence McDonald Leland, Jackson, attorney for appellants.

Charles W. Wright Jr., Meridian, J. Richard Barry, L. Brooks Hooper, Robert Thomas Bailey, Meridian, attorneys for appellees.

Before IRVING, P.J., CARLTON and MAXWELL, JJ.

MAXWELL, J., for the Court:

¶ 1. Wyman and Gloria Bradley's claims against Kelley Brothers Contractors, Inc., Gregory Revette, and Clyde Revette for civil conspiracy, unjust enrichment, and intentional misrepresentation involve allegations of self-dealing over a county-approved, but federally reimbursed, hurricane-debris removal and disposal contract between Wayne County and Kelley Brothers. While differing somewhat, all three claims are based on allegations that Wayne County Supervisor Clyde Revette schemed with his son-in-law Jerry Kelley's company, Kelley Brothers, and his son, Gregory, to profit from the county debris-removal contract by not paying the Bradleys for providing a dumpsite.

¶ 2. The circuit court relied on language from a specific provision in the contract between Wayne County and Kelley Brothers to find the Bradleys' claims of unjust enrichment and civil conspiracy against Kelley Brothers and Gregory failed as a matter of law. But the record contains another version of the debris removal and disposal contract—the version Clyde produced during discovery and represented to be the governing contract between Wayne County and Kelley Brothers. And quite interestingly, this second version, while identical in all other respects, differs materially in the specific provision on which the circuit court relied in granting summary judgment. Because the conflicting contracts throw a material fact issue into dispute—which entity (the county or Kelley Brothers) was actually responsible for negotiating with the Bradleys to dump debris on their property—we must reverse the grant of summary judgment to Kelley Brothers and Gregory.

¶ 3. We also find Clyde was not entitled to a judgment as a matter of law. Relying on Clyde's status as a member of the Wayne County Board of Supervisors (the Board), the circuit court applied the Mississippi Tort Claims Act (MTCA) and its requirement of pre-suit notice to the Bradleys' claims of civil conspiracy and intentional misrepresentation against Clyde. But the Bradleys' claims are based on alleged actions outside of the scope of Clyde's employment with Wayne County, making the MTCA inapplicable. Since the Bradleys were not required to provide pre-suit notice, we also reverse the grant of summary judgment to Clyde. We remand this case to the circuit court.

Background

A. Contract to Remove and Dispose of Debris

¶ 4. After devastating the Mississippi Gulf Coast in late August 2005, Hurricane Katrina moved inland, leaving the roads in Wayne County clogged with storm debris. On September 12, 2005, the Board approved a contract to pay Kelley Brothers $18 per cubic yard to remove and dispose of the debris.

¶ 5. Clyde, who served as a member of the Board, joined in the unanimous vote to approve the county's debris removal and disposal contract with Kelley Brothers. And Clyde's son-in-law, Jerry, signed the contract in his capacity as president of Kelley Brothers. According to the parties, this contract was funded and overseen by the Federal Emergency Management Agency (FEMA).

¶ 6. Under section 2.1 of the contract recorded in the county's minute books, Kelley Brothers was to “provide for debris removal and disposal of all eligible debris” from the county's right-of-ways. And Kelley Brothers was also required to provide the dumpsites. Section 2.2 specified that “[t]he debris [was to] be taken to contractor provided dumpsites.” (Emphasis added). The first and last pages of the recorded contract are attached to this opinion as “Appendix A.”

¶ 7. The same day the Board approved the Kelley Brothers contract, Clyde approached Wyman about the county possibly dumping debris on the Bradleys' property. In the past, the Bradleys had permitted Wayne County to dump various other debris in their low-lying land, in an effort to eventually convert their wetlands into developable property. So it was not unusual when Wyman's local supervisor asked him if the county could also dump Katrina debris on their property.

¶ 8. But on this occasion, Wyman allegedly asked Clyde if he and Gloria would be compensated, since he had recently heard that FEMA money might be available for the hurricane-debris disposal. And Clyde purportedly told him that, though the county was receiving FEMA money to remove debris from the roads, it was not receiving federal funding to dispose of the debris—so there was no money available for providing a dumpsite. However, Clyde did tell Wyman the county could come back and fill the debris with dirt, raising the elevation of his property. Clyde also alluded to possible money down the road for providing the dumpsite, but made no mention of the county's contract with his son-in-law's company, Kelley Brothers. According to Wyman, because Clyde told him the county was not receiving FEMA aid to dispose of the debris, nor paying anyone to dump it, he allowed the Katrina debris to be dumped on his property free of charge, save elevating the low-lying areas.

¶ 9. The Bradleys claim that over the next year, Kelley Brothers and its subcontractor, Gregory, dumped more than 800,000 cubic yards of debris on their property, receiving $18 per cubic yard. And at some point, Kelley Brothers and Gregory paid Clyde $3 per cubic yard to haul and dispose of debris and $54,000 for allowing Gregory to borrow his truck. When finished, Kelley Brothers filled in dirt to the admitted betterment of the Bradleys' property, but the Bradleys received no other compensation for providing a dumpsite.

B. The Bradleys' Lawsuit

¶ 10. When the Bradleys discovered that their county supervisor, Clyde, and his relatives had profited from dumping debris on their property, they filed a Freedom of Information Act (FOIA) request to obtain a copy of the Wayne County / Kelley Brothers contract. But what they received in response was not the contract recorded in county's minute book. Instead, they were given a version of the contract identical to the recorded contract, with one lone exception—section 2.2 differed.

¶ 11. Section 2.2 of the recorded contract required that “[t]he debris [was to] be taken to contractor provided dumpsites.” But section 2.2 of the version disclosed by the county in response to the Bradleys' FOIA request stated that “[t]he debris shall be taken to an approved dumpsite indicated on the attached maps. All necessary permits shall be obtained by the County.” ¹ The first and last pages of the unrecorded contract are attached to this opinion as “Appendix B.”

¶ 12. On September 11, 2008, the Bradleys sued Kelley Brothers, Gregory, and Clyde in the Wayne County Circuit Court. They alleged Clyde falsely and fraudulently represented there was no FEMA money to pay to dispose of the debris, when in fact the county had used FEMA money to pay Kelley Brothers to dump debris on the Bradleys' property. The Bradleys further alleged Kelley Brothers and its subcontractor, Gregory, were unjustly enriched by dumping hundreds of thousands of cubic yards of debris on the their land free of charge.

¶ 13. The Bradleys' final claim is based on Mississippi's constitutional and statutory prohibitions against public officers, such as members of a county board of supervisors, like Clyde, being interested in a contract authorized by the political board on which he or she serves.² Specifically, the Bradleys alleged Clyde, his son Gregory, and his son-in-law Jerry's company conspired to “cheat” the Bradleys out of compensation for providing a dumpsite, which permitted Kelley Brothers and Gregory to make more money under the contract and Clyde to illegally profit from the county contract through performing work as a subcontractor and “leasing” his truck to his son for $54,000.

¶ 14. The Bradleys sought $1.6 million in actual damages—or $2 per cubic yard of debris dumped on their property—plus $4.8 million in punitive damages. They attached to their complaint the unrecorded contract the county provided in response to their FOIA request. See Appendix B.

C. Summary Judgment

¶ 15. In July 2010, Clyde filed a motion for summary judgment. He argued that, because he was a county employee at the time he approached Wyman about the dumpsite, the MTCA applied—in particular the pre-suit notice requirement of Mississippi Code Annotated section 11–46–11(1) (Rev.2012). Because no pre-suit notice was given, Clyde insisted he was entitled to dismissal as a matter of law.

¶ 16. In January 2011, Clyde responded to the Bradleys' discovery requests. In his response to their request for production of documents, he produced the recorded contract, which he represented was the “Wayne County / FEMA contract with Kelley Brothers Contractors, Inc.,” as well as the “minutes of the Wayne County Board meeting approving acceptance of [the] contract.”

¶ 17. In February 2011, while Clyde's motion was still pending, Kelley Brothers and Gregory also filed a motion for summary judgment. But they relied on section 2.2 of the unrecorded contract attached to the complaint, claiming the contract gave them no choice where to haul the debris. Citing this lack of choice, Kelley Brothers and Gregory maintained they were contractually bound to dump the debris in a county-approved dumpsite, which happened to be the Bradleys' property. They argued that, because they never promised to pay the Bradleys anything, they could not have been unjustly enriched. They also argued the Bradleys' conspiracy claim lacked proof of an agreement to accomplish an unlawful purpose or a lawful purpose unlawfully.

¶ 18. The Bradleys responded to...