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2008-MO-016 - Turner Construction Co., Inc. v. City of Spartanburg

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


Turner Construction Co., Inc., Appellant,

v.

The City of Spartanburg, William Barnet III, in his capacity as Mayor of the City of Spartanburg, Robert Reeder, Robert “Bob” Allen, Lewis Mills, and Linda Dogan, each in their capacity as Members of the Spartanburg City Council, Renaissance Park Hotel, LLC, Bridgeview Capital Solutions, LLC, Marriott Hotel Services, Inc., Calvary Consulting, Inc., Walden Leasing, Inc. d/b/a Walden Construction Services, Corrosion Consultants, Inc. d/b/a CCI Flooring Systems, The Circle Group, LLC, Hodge Contract Carpets, Inc. d/b/a Hodge Carpets, Milliken & Company, Video Systems of Carolina, Carolina Applicators, Inc., Defendants,

of whom City of Spartanburg is Respondent.


Appeal from Spartanburg County
 J. Mark Hayes II, Circuit Court Judge


Memorandum Opinion No. 2008-MO-016
Heard November 1, 2007 – Filed March 24, 2008


VACATED AND REMANDED


Thomas H. Coker, Jr. and Joel M. Bondurant, Jr., both of Haynsworth Sinkler Boyd, of Greenville, and John Dean Marshall, Jr., of Sutherland Asbill & Brennan, of Atlanta, for Appellant.

Frank H. Gibbes III and Stephanie Holmes Burton, both of Gibbes Burton, and H. Spencer King, of the Ward Law Firm, all of Spartanburg, for Respondent.

Charles H. McDonald and Daniel T. Brailsford, both of Robinson McFadden & Moore, of Columbia, for Amicus Curiae American Subcontractors Association of the Carolinas.

L. Franklin Elmore, of Elmore & Wall, of Greenville, for Amicus Curiae Carolinas Associated General Contractors.


CHIEF JUSTICE TOAL:     The general contractor working on a city construction project brought several claims against the city for allegedly failing to comply with a statutory bond requirement for contractors working on public projects.  Recognizing the court of appeals’ opinion in Sloan Construction Co., Inc. v. Southco Grassing, Inc., 368 S.C. 523, 629 S.E.2d 372 (Ct. App. 2006), the trial court granted the city’s motion to dismiss the contractor’s breach of statute claim on the grounds that the bond statute did not give rise to a private right of action by the contractor against the city.  This appeal followed. 

We vacate the trial court’s decision pursuant to this Court’s decision in Sloan Construction Co., Inc. v. Southco Grassing, Inc., Op. No. 26462 (S.C. Sup. Ct. filed March 24, 2008) (Shearouse Adv. Sh. No. 13 at 32) (holding that the government’s failure to comply with statutory bonding requirements in S.C. Code Ann. § 29-6-250 (Supp. 2006) gives rise to both a negligence claim and a third-party beneficiary breach of contract claim by the subcontractor against the government).  Accordingly, we remand the case to the trial court for a determination of whether the city breached a statutory or contractual duty owed to the contractor pursuant to S.C. Code Ann. § 29-6-250.

TOAL, C.J., WALLER, PLEICONES, BEATTY, JJ., and Acting Justice Alexander S. Macaulay, concur.