Stanton & Associates, Inc. v. Bryant Const. Co., Inc.

Decision Date20 February 1985
Docket NumberNo. 54599,54599
Citation464 So.2d 499
CourtMississippi Supreme Court

Luke J. Schissel, Caroline R. Moore, Greenwood, for appellant.

Robert C. Connor, Jr., Port Gibson, for appellee.


ROBERTSON, Justice, for the Court:


This appeal follows a jury verdict in favor of a subcontractor in the amount of $16,405.30 as compensation for bulldozer services afforded the prime contractor on a road construction project in Jefferson County, Mississippi. Attorneys fees in the amount of $4,920.00 and prejudgment interest were also awarded to the subcontractor.

On appeal, the prime contractor contends that: (1) the trial court erred in awarding the subcontractor its reasonable attorneys fees incurred in prosecuting this action; (2) the trial court erred in awarding the subcontractor prejudgment interest; (3) the trial court erred in overruling the prime contractor's motion to dismiss pursuant to Rule 12(b)(6), Miss.R.Civ.P.; (4) the quantum meruit verdict of the jury was against the weight of the evidence; and (5) the trial court erred in assessing costs to the defendant prime contractor.

For the reasons set forth below, we affirm in part and reverse in part.



In September of 1981, Stanton & Associates, Inc., a corporation, Defendant below and Appellant here, received a contract with the State of Mississippi to perform Job Number 32(39)--aptly named (considering the trouble and expense this litigation has generated) the Poor House Road Project. Shortly thereafter, Stanton discussed with Bryant Construction Company, also a corporation, Plaintiff below and Appellee here, that portion of the project which involved "clearing and grubbing" approximately 24 acres. Bryant offered to do the clearing and grubbing for $1,200.00 an acre, but Stanton refused this offer. Following this specific negotiation, Stanton and Bryant agreed orally that Bryant, as subcontractor, would help Stanton, as prime contractor, with the job and would be paid by the hour--but the amount Bryant would be paid per hour was not set or even discussed. 1 Other equipment owned by Stanton aided Bryant in the clearing and grubbing work. The parties stipulated that Bryant's bulldozer performed 291 1/2 hours of work.

Most of the testimony in this case centered upon extrapolating the value of clearing and grubbing that 24 acres of land and what percentage of such value was contributed by the 291 1/2 hours worked by Bryant's bulldozer. Stanton contended that the job was at most worth $24,000 and that Bryant contributed approximately 30 percent of the work; therefore, Stanton would owe Bryant some $7,200.00. This evaluation took into account the age and state of repair of Bryant's bulldozer. In contradistinction, Bryant put on proof regarding the normal hourly rate paid when hiring bulldozers, including the rates paid on other jobs for the very bulldozer in question. Suffice it to say that all this proof combined to pose a question for the jury regarding the value of Bryant's services.


Procedurally, Bryant commenced this action on January 19, 1982, when it filed its complaint in the Circuit Court of Jefferson County. As originally filed, the complaint named Stanton, the prime contractor, and its bonding company, United States Fidelity & Guaranty Co., as defendants. The claim against USF & G was dismissed prior to trial. Bryant does not cross-appeal this dismissal of USF & G.

In due course thereafter, Stanton filed a motion to dismiss which in relevant part charged that the complaint failed to state a claim upon which relief could be granted. See Rule 12(b)(6), Miss.R.Civ.P. The motion was not granted. A first attempt at trying this case resulted in a mistrial due to an irregularity concerning the jury. Thereafter, the case was tried in the Circuit Court of Jefferson County on June 10th and 11th of 1982. After all the evidence had been put before the jury, the trial judge directed the jury through Instruction P-1 to return a verdict in favor of Bryant on liability. Indeed, Stanton has never disputed that it owed Bryant something--the question has been how much. The issue before the jury was thus limited to the amount for which Stanton was liable to Bryant.

The jury was also instructed through Instruction C-3 that their verdict should include a credit to Stanton in the amount of $5,457.20 for monies and diesel fuel already provided to Bryant by Stanton. After having been duly instructed, the jury returned a verdict for Bryant in the amount of $16,405.30. The trial judge also awarded attorneys fees to Bryant in the amount of $4,920.00 and also ordered Stanton to pay prejudgment interest and all costs. This appeal has followed.


A. What Kind of Lawsuit is This?

One principal focus of Stanton's appeal is a challenge to the attorneys fees and prejudgment interest awarded Bryant. In order to sustain these awards, Bryant must be able to characterize its suit as either one on a payment bond or one on an open account in order to take advantage of the statutory provisions for attorneys fees and/or prejudgment interest, for it is often stated that in the absence of statute or contract providing expressly therefor, or proof sufficient to support an award of punitive damages, there can be no recovery of attorneys fees or pre-judgment interest. See, e.g., Litten v. Grenada County, 437 So.2d 387, 388 (Miss.1983); Bellefonte Insurance Company v. Griffin, 358 So.2d 387, 391 (Miss.1978).

Sensing this obstacle, Bryant seeks to characterize his suit as based on one of two statutes. The propriety of awarding attorneys fees in a suit on open account is controlled by Miss.Code Ann. Sec. 11-53-81 (Supp.1984). The propriety of prejudgment interest in suits on open accounts is based on caselaw such as J.R. Watkins Co. v. Runnels, 252 Miss. 87, 93, 172 So.2d 567, 571 (1965). The propriety of awarding attorneys fees in suits on a payment bond is governed by Miss.Code Ann. Sec. 31-5-57 (Supp.1984). The propriety of an award of prejudgment interest in a suit on a payment bond is governed by Miss.Code Ann. Sec. 31-5-27 (Supp.1984).

If Bryant's suit does not fit into either the open account or the payment bond molds--but turns out to be merely a suit in quantum meruit--attorneys fees and prejudgment interest are not available. We have held that in a suit by a prime contractor against its subcontractor, attorneys fees are not recoverable in the absence of a provision therefor in the contract. Clow Corp. v. J.D. Mullican, Inc., 356 So.2d 579, 584 (Miss.1978).

The issue of whether Bryant's suit is one on an open account can be settled quickly: Bryant has brought suit on an unliquidated claim. Reference to the "statement of account" attached to Bryant's complaint reveals that, although the dates and the hours worked on those dates are listed, there is no indication of any hourly rate. Furthermore, the testimony at trial is undisputed that there was never any agreement between Bryant and Stanton as to the price Bryant was to be paid per hour. Absent a price understanding between Stanton and Bryant, Bryant's claim is necessarily unliquidated. The upshot of our caselaw is that an unliquidated claim does not meet the itemization standards necessary to qualify as an open account, see Westinghouse Credit Corp. v. Moore & McCalib, 361 So.2d 990, 992 (Miss.1978); Evans v. Central Service & Supply Co., 226 So.2d 616, 618 (Miss.1969); Pioneer-Hyrotex Industries, Inc. v. Barfield, 247 Miss. 845, 848, 157 So.2d 489, 490-91 (1963), although no case heretofore has expressly so held.

Furthermore, in order to qualify as a suit on an open account, the debtor must have failed to pay within 30 days after receipt of a written demand made in compliance with Miss.Code Ann. Sec. 11-53-81 (Supp.1982). In this case, Stanton received a demand letter on January 4, 1982, and suit was filed by Bryant on January 19, 1982. Though Bryant argues that the demand letter of January 4, 1982, made reference to prior correspondence, there is no evidence that, at any time prior to this January 4th letter, Bryant made a claim against Stanton for a specific amount.

The policy underlying the statutory and caselaw provisions for attorneys fees and prejudgment interest aims at protecting a creditor who has a specific liquidated claim from suffering damage by a debtor's unreasonable delay in payment. Considerations of such policy are not triggered in this case, as it does not appear that Stanton was aware of how much Bryant claimed until approximately the time this suit was filed. Instead of being an open account, "[s]crutiny of the declaration indicates that it is a suit sounding in contract ..." Westinghouse, 361 So.2d at 992.

The analysis of whether Bryant's suit is one upon a payment bond is similar, for Bryant's unliquidated claim lacks the elements usually associated with a suit on a payment bond. In particular, the surety who provided the payment bond is not a party to this lawsuit. USF & G was dismissed from this lawsuit. 2 How a lawsuit can be characterized as one on a payment bond when no obligation undertaken by virtue of the bond is a predicate for the claim of liability and where the surety is not party to the lawsuit is not apparent, although the point has been earnestly pressed.

Furthermore, the way this lawsuit was handled does not comport with statutory guidelines. For instance, under both old Miss.Code Ann. Sec. 31-5-13 and new Miss.Code Ann. Sec. 31-5-53, a suit instituted on a payment or performance bond may not be commenced until notice of the final settlement or abandonment by the primary obligee has been published. Though the new statute has not yet been construed, under the old statute this publication requirement was jurisdictional. Travelers Indemnity Co. v. Munro Oil & Paint Co., 364 So.2d 667, 668 (Miss.1978). We have been unable to find any mention of, or...

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