Courtney v. Glenn

• Decision Date: 07 November 2000
• Docket Number: No. 1999-CA-00046-COA.,1999-CA-00046-COA.
• Citation: 782 So.2d 162
• Parties: Wayne COURTNEY d/b/a Courtney Plumbing Service, Appellant v. Roy GLENN d/b/a The Glenn Company and Powers Waterworks Association, Inc., Appellees.
• Court: Mississippi Court of Appeals

782 So.2d 162

Wayne COURTNEY d/b/a Courtney Plumbing Service, Appellant v. Roy GLENN d/b/a The Glenn Company and Powers Waterworks Association, Inc., Appellees.

No. 1999-CA-00046-COA.

Court of Appeals of Mississippi.

November 7, 2000.

Rehearing Denied January 23, 2001.

Certiorari Denied April 5, 2001.

Thomas J. Lowe Jr., Jackson, James T. McCafferty, III, Attorneys for Appellant.

Terry L. Caves, Laurel, Attorney for Appellees.

BEFORE KING, P.J., LEE, AND MYERS, JJ.

KING, P.J., for the Court:

¶ 1. On May 28, 1992, Wayne Courtney filed an action for breach of contract against Roy Glenn and the Powers Waterworks Association (Powers). The matter came to trial in December 1998. The trial court granted directed verdicts for both defendants. Feeling aggrieved, Courtney perfected this appeal and raises the following issues taken verbatim from his brief: 1) the lower court erred in granting Roy Glenn's motion for a directed verdict, and 2) the trial judge erred in granting the directed verdict in favor of Powers Waterworks Association.

FACTS

¶ 2. Powers is the rural water association for Jones County. In the late 1980s, the expansion of U.S. Hwy 84 east of Laurel, Mississippi required the re-routing of a portion of the water system of Powers. Roy Glenn d/b/a the Glenn Company, an engineering firm, was hired by Powers to design and prepare specifications for the new water system and to supervise and inspect all work during construction. Powers then let bids based upon Glenn's specifications.

¶ 3. Courtney submitted a $144,461.14 bid for rerouting the water system and was awarded the contract for a portion of that work. He began work on the project in July 1989 with a projected completion date of December 15, 1989. Under the terms of the contract, Courtney was required to submit pay requests by the twenty-fifth of each month on Farmers Home Administration forms. While Powers provided the necessary Farmers Home Administration forms, Courtney submitted his pay requests on scraps of paper which Glenn in turn used to complete the required form. Neither Courtney nor Glenn retained copies of the original scraps of paper.

¶ 4. During the course of the contract, three written changes and an amendment were made which required Courtney to perform additional work. Powers paid Courtney based on the pay requests as required by the terms of the contract. On March 14, 1990, Powers certified the completion of the contract and final payment by requiring Courtney to sign an acknowledgment that he had received full and final payment according to the terms of the contract. According to the contract, Powers could withhold up to 10% of the final payment as retainage for any outstanding debt owed by Courtney. Powers withheld $21,816. After all outstanding debts were paid, the remainder would then be forwarded to Courtney.

¶ 5. From this retainage, Powers paid $1,106 to the Mississippi Highway Department for repairs to Highway 84 for damage caused by Courtney, $3,538.45 to Wansley Machine and Welding for Courtney's equipment repairs, $1,467.40 for clean up work Courtney failed to complete, $1,564.33 paid to other contractors to repair leaks in the water system constructed by Courtney, and $731.35 to repay a loan from Powers to Courtney. The balance, $13,670.83, was deposited with the circuit court after Powers received a writ of garnishment issued by the Mississippi State Tax Commission for back sales taxes owed by Courtney.

¶ 6. In August 1990, Courtney employed an attorney and contacted Powers claiming that he had not received complete payment. He claimed to be owed an additional $21,816.13 which equaled the amount of the retainage. Powers declined further payment, and Courtney filed suit in 1992 naming Glenn and Powers as defendants. The Jones County Circuit Court granted a directed verdict to Glenn because he was not a party to the contract and to Powers because Courtney failed to prove damages. Aggrieved by the court's ruling, Courtney filed this appeal.

STANDARD OF REVIEW

¶ 7. Our review of motions for directed verdicts is de novo. Little v. Bell, 719 So.2d 757 (¶ 5) (Miss.1998). In determining whether a directed verdict is proper, the court must look only to the testimony of the plaintiff, consider it to be truthful and give it all favorable inferences that can be drawn therefrom, and if either is sufficient to support a verdict, then the motion for a directed verdict should not be granted. Rucker v. Hopkins, 499 So.2d 766, 770 (Miss.1986); White v. Thomason, 310 So.2d 914, 916 (Miss.1975); Ishee v. Peoples Bank, 737 So.2d 1011 (¶ 7) (Miss.Ct. App.1999).

I.

The lower court erred in granting Roy Glenn's Motion for a Directed Verdict.

¶ 8. Courtney alleges that Glenn tortiously interfered with the performance of his contract with Powers. This interference according to Courtney took several forms, among them (1) not allowing Courtney to work, (2) requiring Courtney to perform work outside the contract, without additional compensation and (3) inaccurate completion of the payment requests.

¶ 9. Tortious interference with a contract is defined as a malicious or intentional interference with a valid and enforceable contract by a third party which causes one contracting party not to be able to perform and the failure to perform results in a monetary loss for the other contracting party. Cenac v. Murry, 609 So.2d 1257, 1268 (Miss.1992).

¶ 10. To successfully pursue a claim of tortious interference, Courtney must prove (1) that Glenn's acts were intentional and willful; (2) that they were calculated to cause damages to Courtney's business; (3) that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of Glenn; and (4) that an actual loss occurred. Levens v. Campbell, 733 So.2d 753 (¶ 27) (Miss.1999). Courtney must also prove that but for the interference the contract would have been performed. Id.

¶ 11. The record indicates that Glenn was project engineer and supervisor, and all actions by him were in that capacity. A person in a position of authority on behalf of another is privileged to interfere with the contract between his principal and another. Shaw v. Burchfield, 481 So.2d 247, 255 (Miss.1985). However, to maintain the privilege he must be acting within the scope of that authority and without bad faith. Id. Therefore any liability by Glenn would be predicated upon the misuse of his position as project supervisor. Glenn visited the site daily, and conferred with the field supervisor and with subcontractors. He determined whether weather or site conditions were conducive for construction. If the site was not suitable, then work would be suspended for the day. Any necessary changes in design were relayed by Glenn to Courtney.

¶ 12. As project supervisor, Glenn had to receive Courtney's payment request on Farmers Home Administration approved forms. The completed form was to be given to Glenn by Courtney. Rather than submitting to Glenn a proper form, Courtney requested payment on scraps of paper. Glenn then used these scraps to complete the proper form for Courtney.

¶ 13. There is no evidence in the record which indicates that Glenn (1) refused to allow Courtney to work, (2) required Courtney to perform unpaid extra...