Butler v. Board of Sup'rs for Hinds County

• Decision Date: 03 August 1995
• Docket Number: No. 92-CA-00386-SCT,92-CA-00386-SCT
• Citation: 659 So.2d 578
• Parties: Gene BUTLER d/b/a Butler's Commercial Painting Company v. BOARD OF SUPERVISORS FOR HINDS COUNTY, Mississippi.
• Court: Mississippi Supreme Court

Page 578

659 So.2d 578

Gene BUTLER d/b/a Butler's Commercial Painting Company v. BOARD OF SUPERVISORS FOR HINDS COUNTY, Mississippi.

No. 92-CA-00386-SCT.

Supreme Court of Mississippi.

Aug. 3, 1995.

Andrew J. Kilpatrick, Jr., Hickman Goza & Gore, Grenada, for appellant.

Sorie S. Tarawally, Jackson, for appellee.

Before DAN M. LEE, P.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice for the Court:

INTRODUCTION

This case involves an important public policy issue concerning the ability of a county board of supervisors to be bound contractually with members of the private sector. A county board of supervisors approves the use of county funds collected from its community taxes and used for the betterment of their community. As such, our case precedent requires the entry of an order by the board of supervisors upon their minute book when sitting together for the purpose of making expenditures in order for public funds to be collectible by a party performing services for the board of supervisors. Warren County Port Commission v. Farrell Construction Co., 395 F.2d 901, 903-904 (5th Cir.1968) ("a county board of supervisors can contract only by an order on its minutes,.... Such contracts when so entered upon the minutes may not be varied by parol nor altered by a court of equity"). Otherwise, an individual member of the board or agent thereof would be capable of binding the board and expending the public taxpayers' money without the benefit of the consent of the board as a whole which was elected and responsible for such purposes. In sum, the policy of protecting the public's funds for use by and for the public is paramount to other individual rights which may also be involved.

In this case, there was a construction contract awarded by the Hinds County Board of Supervisors to Dunn Construction Company for the restoration of and additions to the Hinds County courthouse. The painting portion of this contract was subcontracted to Butler's Commercial Painting Company. Upon discovering a variance in the anticipated needs for restoring a particular wall within the courthouse, the architect for the project instructed Butler to perform extra work which was never approved by an order of the board entered upon its minutes. Butler subsequently requested the money from the board which refused to pay since it had not agreed as a Board to approve said expenditures by an order upon its minutes. As this Court stated in Colle Towing Co., Inc. v. Harrison County, 213 Miss. 442, 57 So.2d 171, 172 (1952), while referring to the order requirement upon a board's minute book, "... public interest requires adherence thereto, notwithstanding the fact that in some instances the rule may work an apparent injustice." Therefore, stare decisis and public policy require this Court to affirm the lower court's granting of the board's motion to dismiss for failure to state a claim as it was proper absent such an order duly entered upon the board's minute book.

STATEMENT OF THE CASE

This case began on August 2, 1991, with the filing of a complaint by Gene Butler, d/b/a Butler's Commercial Painting Company, against the Hinds County Board of Supervisors in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Butler alleged that there were monies due and owing under a contract between the board and Dunn Construction Company for which Butler was an assignee and entitled. A copy of the assignment between Butler and Dunn was attached to the complaint as Exhibit A. However, it is unclear whether a copy of the contract was submitted to the judge, and a copy of the contract is not a part of the record on appeal. Only portions of the contract are contained in the briefs. There is also no documentation in the record of Dunn's reservation of rights upon receiving final payment from the board.

The board filed its Answer on August 30, 1991, alleging that the complaint had failed to state a claim upon which relief could be granted and that the board was a political subdivision of the State of Mississippi entitled to sovereign immunity against any claim alleged in the Complaint. The board subsequently filed a M.R.C.P. 12(b)(6) motion which was granted by Judge Graves on March 16, 1992.

Judge Graves held that Butler had failed to state a claim upon which relief could be granted and dismissed the complaint "in light of the immunity of the Board of Supervisors where waiver is not authorized by statute." He cited Warren County Port Commission v. Farrell Construction Co., 395 F.2d 901, 903-904 (5th Cir.1968), Leflore County v. Big Sand Drainage District, 383 So.2d 501 (Miss.1980) and Webb v. County of Lincoln, 536 So.2d 1356 (Miss.1988) as the authority for the aforementioned holding.

Aggrieved by the dismissal of his complaint, Butler timely perfected his appeal and raised the following issues for review:

I. DID THE LOWER COURT ERR IN GRANTING A 12(b)(6) MOTION?

II. CAN A GENERAL CONTRACTOR UNDER A CONTRACT WITH THE COUNTY ASSIGN TO A SUBCONTRACTOR THE RIGHT TO PURSUE COLLECTION OF MONIES CLAIMED BY THE GENERAL CONTRACTOR AND SUBCONTRACTOR TO BE OWING FROM THE COUNTY FOR EXTRA WORK PERFORMED FOR THE COUNTY BY THE SUBCONTRACTOR?

III. DOES MISSISSIPPI CODE ANNOTATED § 75-9-318(4) APPLY TO AN ASSIGNMENT OF PROCEEDS FOR EXTRA WORK CLAIMED BY A GENERAL CONTRACTOR AND SUBCONTRACTOR TO BE OWING FROM THE COUNTY UNDER A CONSTRUCTION CONTRACT?

STATEMENT OF THE FACTS

On approximately April 1, 1987, the Hinds County Board of Supervisors entered into construction contract # 503-099 with Dunn Construction Company for the project known as the Renovation and Addition to the Hinds County Courthouse. On approximately April 1, 1987, Dunn entered into a construction subcontract with Butler to meet all of the painting needs on the project. Thereafter, Butler completed all of the painting needs to the specifications and terms of the contract between Dunn and the board with one exception in the amount of $34,652.86 which represented the additional unapproved expenses.

After beginning and during the course of the project, Butler encountered site conditions differing from those represented in the plans making it impossible to complete that aspect of the project as called for in the contract and the preexisting plans. The problem was that there were existing plaster walls which were unexpectedly deteriorating due to an uncontrolled environment. The deterioration prevented Butler from being able to paint the existing plaster walls in the manner previously provided for by the plans between Dunn and the board.

Upon discovering the problem, Butler consulted the board's architect for the project and was directed to strip the existing plaster and apply a "Glid-Wall System" to handle the unexpected problem. This would allow a smooth finish, maximum performance of the paint and long lasting adhesion. Butler contends that this work was outside the scope of his contract with Dunn and outside the scope of Dunn's contract with the board.

Butler performed the work on the "Glid-Wall System" at the direction of the board's architect. Pursuant to the subcontract with Dunn, Butler subsequently submitted a change order request to Dunn for $34,652.86. Dunn in turn submitted the change order request to the board which denied responsibility for the work.

On approximately February 27, 1990, Dunn and Butler entered into an agreement whereby Dunn assigned to Butler all of Dunn's right, title and interest to payment for the work related to installation of the "Glid-Wall System." Dunn and Butler recognized that only Dunn had a contract with the board and felt that an assignment from Dunn to Butler was necessary to pursue Butler's claim directly against the board as assignee of Dunn's right to obtain payment for the additional work. At the time of executing the assignment to Butler, Dunn had settled all claims with the board for the work on the project except for payment for the "Glid-Wall System." Dunn represented in the assignment agreement that Dunn had specifically reserved such a claim on behalf of Butler under Butler's change order request when Dunn previously settled with the board. However, there is no documentation in the record other than the assignment agreement as to Dunn's reservation of rights upon receiving final payment from the board.

Butler claims that he is entitled to damages from the board in the amount of $34,652.86 which represents the extra unanticipated expenses of installing the "Glid-Wall System" plus interest from June 10, 1988. Butler also seeks reimbursement for all costs associated with the litigation including but not limited to reasonable attorney's fees.

DISCUSSION OF ISSUES

DID THE LOWER COURT ERR IN GRANTING A 12(b)(6) MOTION?

The Complaint containing the Dunn/Butler assignment agreement and the Answer of the Board was before the trial court when the board's M.R.C.P. 12(b)(6) motion was heard. Upon hearing oral arguments and reviewing the aforementioned documents, Judge Graves dismissed Butler's complaint. The lower court granted the board's M.R.C.P. 12(b)(6) motion for a failure by Butler to state a claim upon which relief could be granted.

Judge Graves made the following ruling:

It is well settled in Mississippi that "a county board of supervisors can contract only by an order on its minutes, ... Such contracts when so entered upon the minutes may not be varied by parol nor altered by a court of equity ..." Warren County Port Commission v. Farrell Construction Co., 395 F.2d 901, 903-904 (5th Cir.1968). Though Butler did not contract with the Board of Supervisors, they would have the Court extend the Board's waiver of immunity to Butler, thereby enabling them to claim the provisions of a contract to which they were not a party. This would require the Court to alter the contract at issue. No authority is offered in support of this proposition and the Court is therefore compelled to grant the defendant's ...