WILLIAMSON POUNDERS ARCHITECTS v. TUNICA COUNTY

• Decision Date: 29 October 2008
• Docket Number: No. 2:06CV206.,2:06CV206.
• Citation: 681 F. Supp.2d 766
• Parties: WILLIAMSON POUNDERS ARCHITECTS, P.C., Plaintiff v. TUNICA COUNTY, MISSISSIPPI, its Board of Supervisors and its Board Members, James Dunn, Cedric Burnett, Paul Battle, III Curtis Jackson, and Billy Pegram, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

681 F. Supp.2d 766

WILLIAMSON POUNDERS ARCHITECTS, P.C., Plaintiff v. TUNICA COUNTY, MISSISSIPPI, its Board of Supervisors and its Board Members, James Dunn, Cedric Burnett, Paul Battle, III Curtis Jackson, and Billy Pegram, Defendants.

No. 2:06CV206.

United States District Court, N.D. Mississippi, Delta Division.

October 29, 2008.

Jeffrey A. Land, Jeffrey A. Land and Associates, Nashville, TN, Mary Leslie Davis, William O. Luckett, Jr., Luckett Tyner Law Firm, Clarksdale, MS, for Plaintiff.

Bradford Coleman Ray, Mark D. Herbert, Watkins Ludlam Winter & Stennis, P.A., Jackson, MS, for Defendants.

MEMORANDUM OPINION

MICHAEL P. MILLS, Chief District Judge.

This cause comes before the court on the motion 86 of the plaintiff, Williamson Pounders Architects, P.C. ("WPA"), to alter the judgment of the court issued July 21, 2008, 2008 WL 2856826.

Facts

On May 15, 2001, Tunica County¹ entered into a standard American Institute of Architects ("AIA") contract with WPA to design a project known as the Tunica County River Front Park. On May 25, 2001, WPA entered into an AIA consultant contract with PDR Engineers, Inc., a Tetra Tech Company ("Tetra Tech").

On February 7, 2002, WPA and Tetra Tech met with county representatives. During that meeting County Administrator Kenneth Murphree requested changes that resulted in an increase in the scope and complexity of the project. The overall budget increased from $18 million to $24 million. On November 25, 2003, Tetra Tech submitted a change order request for additional services to WPA. In May 2004, Tetra Tech, WPA, and Tunica County held a meeting regarding the change order request. WPA contends that Tunica County acknowledged the amount owed and requested more information detailing the request. Tunica County denies further amounts are owed to Tetra Tech or WPA. Tetra Tech mailed Tunica County a letter outlining the increases in the project on June 3, 2004. On January 12, 2005, WPA sent a letter to Tunica County requesting payment of the change order. The instant suit was filed December 13, 2006 seeking fees in the amount of $203,195.00. On January 19, 2007, Tunica County filed a motion to dismiss for failure to state a claim upon which relief may be granted. This court denied that motion on September 28, 2007, 2007 WL 2903216.

Tunica County then filed a motion to reconsider that decision. On July 21, 2008, the court granted that motion in part. WPA then filed the instant motion. While the court's July Order sets forth a number of points, WPA only requests the court to reevaluate its ruling disallowing recovery for work performed prior to October 2003. As laid out in that Order, the court found WPA could not recover because it failed to provide notice to Tunica County as required by the plain language of the contract. WPA asks the court to find that notice was given on February 7, 2002 or that even if their was no formal notice as it can recover under the Tennessee law theory of an implied contract.

Standard of Review

Requests to alter or amend are controlled by Federal Rule of Civil Procedure 59(e). Under Rule 59(e), there are three possible grounds for granting a motion to alter or amend: (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice. Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss.1990).

WPA does not contend there has been a change in the law or that new evidence is available. Instead they proceed under the theory there is a need to correct a clear error of law or prevent manifest injustice.

The original motion in this matter was decided as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). However, both parties make reference to outside sources in their arguments here and the court finds this motion would best be construed as a motion for summary judgment.

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In reviewing the evidence, this Court must draw all reasonable inferences in favor of the nonmoving party, and avoid credibility determinations and weighing of the evidence. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). In so doing, the Court must disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves, 530 U.S. at 151, 120 S.Ct. at 2110.

Analysis

Because this motion is intricately related with two previous orders the court will consider arguments raised in those previous motions. The court finds justice would best be served by considering all legal grounds so that the correct answer to the questions presented can be determined.

First, WPA asks the court to find that notice, as required by the contract, was given on February 7, 2002. That claim is simply not supported by the evidence. No doubt a February 2002 meeting occurred regarding increasing the scope of the project. At that meeting the parties discussed an expansion requiring additional costs. Under the terms of the contract this is not enough to provide notice. As the court previously ruled the contract requires a two step process before notice is effective. First there must be a change in scope and that change then triggers the need for written notice. This separate requirement, under the plain language of the contract, means that a change in scope itself can not be the notice required. WPA can not rely on a meeting discussing a change in the scope of the project as its required notice.

Exhibit C to the Amendment Complaint is a letter from Tetra Tech to WPA dated November 25, 2003. In that letter Tetra Tech Senior Project Manager Adam Brown states, "we took the County's acceptance of the potential budget overruns as recognition by the County that greater effort would be required on behalf of the design team. It has become apparent that this may not have been the case." In his deposition as WPA's corporate representative Brown attempted to testify that written notice was actually provided around the time of the February meeting. However, when questioned further he admitted that testimony was just speculation and he had never seen any written notice. Brown's statements show Tunica County was not given notice.

Exhibit E to the Amended Complaint is a letter from WPA to Tunica County dated January 12, 2005. This letter admits that requests were not made in 2002 because outside factors were threatening the project. Again this is an admission that written notice was not provided to Tunica County.

The only evidence WPA can rely on in making its claim notice was given is the affidavit of Frank B. Gianotti, III. Gianotti's affidavit states that Tunica County's representative agreed to pay increased in costs as discussed at the February 7, 2002 meeting. This claim fails on a number of grounds. First this is a self-serving affidavit. "Unsubstantiated assertions are not competent summary judgment evidence." Hugh Symons Group, plc v. Motorola, Inc., 292 F.3d 466, 468 (5th Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-34, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.1994)). Self-serving affidavits employed to create questions of material fact should be carefully scrutinized by courts. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir.2004). Gianotti offers nothing to support his claim. Without at least some corroborating documentation, the court finds little reason to accept Gianotti's statement as summary judgment evidence. Further even if the court did accept Gianotti's statement as true, the statement is inconclusive. The statement does not claim notice was provided, but simply states Tunica County agreed to pay for changes in the scope of the project. Clearly Tunica County did pay for some changes. WPA alleges this February meeting increased the scope of the project by six million dollars. The present suit is over less than $300,000. Taken together these facts simply can not show that Tunica County agreed to pay for the small portion of monies currently in dispute.

As such WPA's request that the court find notice was given in February 2002 is denied.

Secondly, WPA asserts it can recover even if it did not comply with the notice provisions in the contract. Here they proceed under the theory that Tennessee law allows waiver of written change order requirements by either knowledge that extra work is being performed or a course of dealing between the parties where the contract provision is not strictly enforced. See Moore Construction Co., Inc. v. Clarksville Dept. of Electricity, 707 S.W.2d 1, 13 (Tenn.Ct.App.1986).

The court's July 21, 2008 Order held that WPA failed to allege facts in their complaint which would allow them to proceed under this theory. Tunica County has subsequently produced at least some evidence that a course of dealing may have existed between the parties where written change orders were not required. In evaluating this information the court finds conflicts of law rules still prohibit recovery under this theory.

Federal jurisdiction in this case is based on diversity of citizenship. This court is thus bound to apply Mississippi's rules regarding conflict of laws. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938))....