Cig Contractors, Inc. v. Mississippi State Bldg. Commission
| Decision Date | 03 June 1981 |
| Docket Number | No. 52681,52681 |
| Citation | 399 So.2d 1352 |
| Parties | CIG CONTRACTORS, INC. v. MISSISSIPPI STATE BUILDING COMMISSION. |
| Court | Mississippi Supreme Court |
Rolf L. Anderson, Reynolds & Johnson, Jackson, for appellant.
Bill Allain, Atty. Gen. by Richard E. Ulmer, Sp. Asst. Atty. Gen., Donald Clark, Jr., McKibben, Tolbert & Associates, Jackson, for appellee.
Before SMITH, P. J., and WALKER and BROOM, JJ.
WALKER, Justice, for the Court:
Cig Contractors, Inc. filed a declaration in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against the Mississippi State Building Commission, seeking damages in the sum of $120,000 which were alleged to have resulted from the Commission's breach of contract. The trial court sustained the demurrer to the declaration and Cig appeals.
The declaration alleges that Cig Contractors, Inc., and the Mississippi State Building Commission entered into a contract on February 17, 1975, for the construction of a portion of the physical science facility (chemistry building) at the University of Mississippi. This contract required Cig to be responsible for the concrete, masonry, and general contracting work on the project. The Building Commission entered into separate contracts with B. J. Lee Company for the mechanical portion; Warren Electric Company for the electrical portion; and Hamilton Industries, Inc., for the laboratory case-work portion.
The declaration further alleges that after the Building Commission issued the notice to proceed, Cig began the excavation work for the construction of the utilities tunnel which was to be built under the main structure of the project. After installing the utility tunnel, Cig backfilled around the tunnel as required by the plans and specifications. B. J. Lee Company then excavated down to the elevation required to install various mechanical pipes which entered the walls of the tunnel. After the back fill around the tunnel was put back in place under the inspection and observation of the Building Commission, Cig placed a concrete slab on top of the backfill. Sometime after the concrete slab was poured it was noted that one of the pipes extending out of a concrete wall in an area adjacent to the elevator shaft was tilted. Upon further investigation it was found that the pipe had no soil compacted around it. It became necessary for Cig to remove the concrete slab in order to rebuild and replace the subsoil which had eroded from under the slab.
In its declaration Cig seeks to recover $80,000, the repair costs incurred by Cig involved in removing and replacing the concrete slab and compacting the soil underneath it. The suit also seeks to recover from the Building Commission an additional $40,000 in overhead costs.
The declaration alleges that the Building Commission had the duty to test and inspect the soil prior to the placing of the concrete slab by Cig, quoting Section 2c of the specifications to the contract, which states:
Soils Testing and Inspection Service: Owner will provide soils testing and inspection service for quality control testing during earth-work operations.
The declaration also alleges that B. J. Lee Company, under its contract with the Building Commission, was to have packed in the dirt below the concrete slab in order to prevent water from entering the subgrade, and that the Building Commission's failure to enforce these provisions of B. J. Lee Company's contract damaged the work of Cig, requiring the extensive repairs. The declaration also alleges that the Commission's actions or inactions were a breach of its implied promise and obligation to coordinate and cooperate with Cig and to do nothing which would hinder, delay or otherwise interfere with the performance by Cig of its contract.
To this declaration the Building Commission demurred, which demurrer was sustained by the trial court. The demurrer was grounded upon two theories:
(1) The Building Commission was not subject to suit because of sovereign immunity; and
(2) The declaration failed to state a cause of action.
The order sustaining the demurrer does not state upon which ground it is founded, but the parties agree that the lower court orally indicated that it was sustained upon the ground of sovereign immunity.
Much of the briefs of both parties addresses the question of whether or not the defense of sovereign immunity was waived by the legislature when it included in the power granted to the Building Commission by Chapters 280 of the Laws of 1956, the authority to "contract and be contracted with and to sue and be sued." The appellee Building Commission contends that the authority to sue and be sued in contractual matters under this Act of the legislature is limited to certain "revenue producing projects." However, in Horne v. State Building Commission, 233 Miss. 810, 823, 103 So.2d 373 (1958), a case which did not involve a revenue producing project, the Court commented on the applicability of that act saying:
Prior to the enactment of Chapters 280 of the Laws of 1956, approved April 5, 1956, there was no statute which conferred upon the State Building Commission the power and authority to sue or be sued.
Section 1 of the Act provides:
The State Building Commission created by Chapter 328, Laws of Mississippi, 1944, Chapter 276, Laws of Mississippi, 1946, and Chapter 467, Laws of 1950, is hereby continued as a public body corporate of the State of Mississippi and, in addition to the powers and duties otherwise prescribed by law, the State Building Commission shall have powers and duties hereinafter set forth and granted. (Emphasis added).
Although the question was not expressly before the Court in Horne, supra, we are of the opinion that Chapter 280 of the Laws of 1956 granting the State Building Commission the power to " contract and be contracted with and to sue and be sued," 1 is supplemental to the existing general...
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