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Case: 45CI1:16-cv-00090-ssr Document #: 48 Filed: 02/05/2019 Page 1 of 3

IN THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI

HEMPHILL CONSTRUCTION C
LE
MADISON CO UNTY
PLAINTIFF

V. Cause No. CI 2016-090-JR


FEB 05 2019
NEEL-SCHAFFER, INC. DEFENDANT-GARNISHEE
ANITA WRAY, IR9UIT CLERK

M.A.C. & ASSOCIATES, LLC; BY D.C.


M.A.C. CONSTRUCTION CO. OF MS, LLC;
AND MARCUS L. WALLACE JUDGMENT-DEBTORS

SUGGESTION FOR WRIT OF GARNISHMENT

TO: THE CLERK OF THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI

Hemphill Construction Co., Inc., Plaintiff in the above-styled cause in the Circuit

Court of Madison County, Mississippi, respectfully shows that on the 221d day of

January, 2019, a judgment was rendered in said case in favor of Plaintiff against M.A.C.

& Associates, LLC, M.A.C. Construction Co. of MS, LLC and Marcus L. Wallace

("Judgment-Debtors"), jointly and severally, for the sum of $325,000.00 (Please see,

Exhibit "A"). The judgment has been duly enrolled on the Judgment Roll of the Circuit

Court of Madison County, Mississippi. The judgment remains due and unpaid. The

judgment has never been assigned to anyone. The balance remaining is $325,000.00.

The undersigned hereby suggests that Neel-Schaffer, Inc. may be indebted to the

Judgment-Debtors or have effects or property of the Judgment-Debtors in its

possession, or know of some other person who is indented to the Judgment-Debtors, or

who has effects or property of the Judgment-Debtors in its possession.

YOU ARE, THEREFORE, hereby requested to issue of Writ of Garnishment as

directed by law.

1
Case: 45CI1:16-cv-00090-ssr Document #: 48 Filed: 02/05/2019 Page 2 of 3

This the 5th day of February, 2019.

Respectfully submitted,

HEMPHILL CONSTRUCTION CO., INC.

BY:
Davis House, MSB No. 105315
Attorney for Hemphill Construction Co., Inc.

OF COUNSEL:

BIGGS, INGRAM & SOLOP, PLLC


111 Capitol Building
111 East Capitol Street, Suite 101 (39201)
P.O. Box 14028
Jackson, MS 39236-4028
Telephone: (601) 987-4830
Facsimile: (601) 713-2049
Email: dhouse@bislawyers.com

2
Case: 45CI1:16-cv-00090-ssr Document #: 48 Filed: 02/05/2019 Page 3 of 3

CERTIFICATE OF SERVICE

I, Davis House, one of the attorneys for Hemphill Construction Co., Inc. do

hereby certify that on this date, I sent notification of such filing to the following:

Robert L. Gibbs
rgibbs@gibbstravis.com

Tijuana S. Mcgee
tmcgee@gibbstravis.com

This the 5th day of February, 2019.


Aks_
Davis House
Case: 45CI1:16-cv-00090-ssr Document #: <docnum> Filed: <datefiled> Page 1 of 4

Mississippi Electronic Courts


Twentieth Circuit Court District (Madison Circuit Court)
CIVIL DOCKET FOR CASE #: 45CI1:16-cv-00090-ssr

Hemphill Construction Co., Inc v. M. A. C. & Associates, LLc Date Filed: 05/04/2016
et al Current Days Pending: 757
Assigned to: Steve S Ratcliff, III Total Case Age: 757
Jury Demand: None
Nature of Suit: 45 Breach of Contract
Plaintiff
Hemphill Construction Co., Inc represented by David Bonds Ellis
1858 Highway 49 South Mockbee Hall & Drake
Florence, Ms 39073 125 South Congress Street, Suite 1820
JACKSON, MS 39201
601-353-0045
Fax: 601-353-0045
Email: dellis@mhdlaw.com
ATTORNEY TO BE NOTICED

V.
Defendant
M. A. C. & Associates, LLc represented by Robert L. Gibbs
125 South Congress Street Suite 1300 Gibbs Travis PLLC
Jackson, Ms 39201 210 East Capitol Street
Suite 1801
JACKSON, MS 39201
601-487-2631
Fax: 601-366-4295
Email: rgibbs@gibbstravis.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Tujuana S Mcgee
Gibbs Travis PLLC
210 East Capitol Street
Suite 1801
JACKSON, MS 39201
601-487-2625
Fax: 601-366-4295
Email: tmcgee@gibbstravis.com
ATTORNEY TO BE NOTICED

Defendant
M. A. C. Construction Co. of Ms, LLC represented by Robert L. Gibbs
125 South Congress Street, Suite 1300 (See above for address)
Jackson, Ms 39201 LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Tujuana S Mcgee
(See above for address)
ATTORNEY TO BE NOTICED

Defendant
Marcus Wallace represented by Robert L. Gibbs
209 Calumet Dr (See above for address)
Madison, Ms 39110 LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Tujuana S Mcgee
Case: 45CI1:16-cv-00090-ssr Document #: <docnum> Filed: <datefiled> Page 2 of 4
(See above for address)
ATTORNEY TO BE NOTICED

Date Filed # Docket Text


COMPLAINT against M. A. C. & Associates, LLc, M. A. C. Construction Co. of Ms,
05/04/2016 1 LLC, Marcus Wallace, filed by Hemphill Construction Co., Inc. (Attachments: # 1
Exhibit A, # 2 Civil Cover Sheet) (Sanders, Fannie) (Entered: 05/04/2016)
SUMMONS Issued to Attorney as to (M. A. C. & Associates, LLc., and M. A. C.
05/04/2016 2 Construction Co. of Ms, LLC.) (Sanders, Fannie) (Entered: 05/04/2016)
SUMMONS Issued to Attorney as to Marcus Wallace. (Sanders, Fannie) (Entered:
05/04/2016 3 05/04/2016)
ORDER Regarding Motion Hearings and Briefing. Signed by Judge Steve S Ratcliff, III
05/04/2016 4 on 5/4/2016. (Sanders, Fannie) (Entered: 05/04/2016)
SUMMONS Returned Executed by Hemphill Construction Co., Inc. Marcus Wallace
05/10/2016 6 served on 5/10/2016, answer due 6/9/2016. Service type: Personal (Ellis, David)
(Entered: 05/10/2016)
SUMMONS Returned Executed by Hemphill Construction Co., Inc. M. A. C. &
05/10/2016 7 Associates, LLc served on 5/10/2016, answer due 6/9/2016. Service type: Personal
(Ellis, David) (Entered: 05/10/2016)
SUMMONS Returned Executed by Hemphill Construction Co., Inc. M. A. C.
05/10/2016 8 Construction Co. of Ms, LLC served on 5/10/2016, answer due 6/9/2016. Service type:
Personal (Ellis, David) (Entered: 05/10/2016)
ANSWER to 1 Complaint by M. A. C. & Associates, LLc, M. A. C. Construction Co. of
06/09/2016 9 Ms, LLC, Marcus Wallace. (Gibbs, Robert) (Entered: 06/09/2016)
MOTION to Dismiss by Defendant Marcus Wallace (Gibbs, Robert) (Entered:
06/09/2016 10 06/09/2016)
MEMORANDUM in Support re 10 MOTION to Dismiss by Marcus Wallace. (Gibbs,
06/09/2016 11 Robert) (Entered: 06/09/2016)
NOTICE OF SERVICE of Interrogatories Propounded to M.A.C. Construction Co. of
07/01/2016 12 Mississippi, LLC; M.A.C. & Associates, LLC and Marcus L. Wallace by Hemphill
Construction Co., Inc. (Ellis, David) (Entered: 07/01/2016)
NOTICE OF SERVICE of Request for Production of Documents Propounded to
07/01/2016 13 M.A.C. Construction Co. of Mississippi, LLC; M.A.C. & Associates, LLC and Marcus
L. Wallace by Hemphill Construction Co., Inc. (Ellis, David) (Entered: 07/01/2016)
NOTICE OF SERVICE of Request for Admissions Propounded to M.A.C. Construction
07/01/2016 14 Co. of Mississippi, LLC; M.A.C. of Associates, LLC and Marcus L. Wallace by
Hemphill Construction Co., Inc. (Ellis, David) (Entered: 07/01/2016)
NOTICE OF SERVICE of Request for Admissions Propounded, NOTICE OF
SERVICE of Responses to Request for Admissions by M. A. C. & Associates, LLc, M.
08/01/2016 15 A. C. Construction Co. of Ms, LLC, Marcus Wallace. (Mcgee, Tujuana) (Entered:
08/01/2016)
RESPONSE in Opposition re 10 MOTION to Dismiss by Hemphill Construction Co.,
08/03/2016 16 Inc. (Ellis, David) (Entered: 08/03/2016)
MEMORANDUM in Support re 16 Response in Opposition to Motion to Dismiss by
08/03/2016 17 Hemphill Construction Co., Inc. (Attachments: # 1 Exhibit Indemnity Agreement)
(Ellis, David) (Entered: 08/03/2016)
MOTION for Leave to File First Amended Complaint by Plaintiff Hemphill
08/23/2017 18 Construction Co., Inc (Attachments: # 1 Exhibit First Amended Complaint,) (Ellis,
David) (Entered: 08/23/2017)
AGREED ORDER granting 18 Motion for Leave to File. (Blankenship, Dendy)
08/29/2017 19 (Entered: 08/29/2017)
Case: 45CI1:16-cv-00090-ssr Document #: <docnum> Filed: <datefiled> Page 3 of 4
NOTICE of Appearance by Tujuana S Mcgee on behalf of M. A. C. & Associates, LLc,
08/30/2017 20 M. A. C. Construction Co. of Ms, LLC, Marcus Wallace (Mcgee, Tujuana) (Entered:
08/30/2017)
First AMENDED COMPLAINT against M. A. C. & Associates, LLc, M. A. C.
Construction Co. of Ms, LLC, Marcus Wallace, filed by Hemphill Construction Co.,
08/31/2017 21 Inc. (Attachments: # 1 Exhibit Indemnity Agreements, # 2 Exhibit Assignment,) (Ellis,
David) (Entered: 08/31/2017)
ANSWER to 21 Amended Complaint by M. A. C. & Associates, LLc, M. A. C.
09/30/2017 22 Construction Co. of Ms, LLC. (Gibbs, Robert) (Entered: 09/30/2017)
MOTION to Dismiss by Defendant Marcus Wallace (Gibbs, Robert) (Entered:
09/30/2017 23 09/30/2017)
MEMORANDUM in Support re 23 MOTION to Dismiss by Marcus Wallace. (Gibbs,
09/30/2017 24 Robert) (Entered: 09/30/2017)
RESPONSE in Opposition re 23 MOTION to Dismiss by Hemphill Construction Co.,
10/10/2017 25 Inc. (Ellis, David) (Entered: 10/10/2017)
MEMORANDUM in Opposition re 23 MOTION to Dismiss by Hemphill Construction
10/10/2017 26 Co., Inc. (Attachments: # 1 Exhibit A - Indemnity Agreement, # 2 Exhibit B -
Assignment,) (Ellis, David) (Entered: 10/10/2017)
SUBPOENA ISSUED DT Issued to Attorney as to CHUBB & SON, INC. (Henderson,
11/17/2017 27 Monica) (Entered: 11/17/2017)
SUBPOENA RETURNED Executed re ** 27 SUBPOENA ISSUED DT Issued to
Attorney as to CHUBB & SON, INC. (Henderson, Monica)**. Return filed by
12/04/2017 28 Hemphill Construction Co., Inc. Subpoena served on 11/17/2017. (Ellis, David)
(Entered: 12/04/2017)
ORDER REGARDING MOTION HEARINGS AND BRIEFING. Signed by Steve S
02/08/2018 29 Ratcliff, III on 2/8/18. (Blankenship, Dendy) (Entered: 02/08/2018)
NOTICE OF SERVICE of Responses to Interrogatories by M. A. C. & Associates, LLc,
03/09/2018 30 M. A. C. Construction Co. of Ms, LLC, Marcus Wallace. (Mcgee, Tujuana) (Entered:
03/09/2018)
NOTICE OF SERVICE of Responses to Request for Production by M. A. C. &
03/09/2018 31 Associates, LLc, M. A. C. Construction Co. of Ms, LLC, Marcus Wallace. (Mcgee,
Tujuana) (Entered: 03/09/2018)
MOTION for Summary Judgment by Plaintiff Hemphill Construction Co., Inc (Ellis,
03/23/2018 32 David) (Entered: 03/23/2018)
MEMORANDUM in Support re 32 MOTION for Summary Judgment by Hemphill
Construction Co., Inc. (Attachments: # 1 Exhibit A - First Amended Complaint, # 2
Exhibit B - Defendants Answer and Defenses, # 3 Exhibit C - Contract Bond, # 4
03/23/2018 33 Exhibit D - Indemnity Agreement, # 5 Exhibit E - Federal Ltr to Wallace and Rula, # 6
Exhibit F - Affidavit of Robert V Miller, # 7 Exhibit G - Affidavit of Richard Rula, # 8
Exhibit H - Assignment,) (Ellis, David) (Entered: 03/23/2018)
NOTICE of Hearing re 32 MOTION for Summary Judgment by Hemphill Construction
03/26/2018 34 Co., Inc (Ellis, David) (Entered: 03/26/2018)
Set/Reset Deadlines as to 32 MOTION for Summary Judgment. Motion Hearing set for
03/27/2018 5/30/2018 01:00 PM in Madison County Circuit Courthouse - Courtroom 1 before Steve
S Ratcliff III. (Blankenship, Dendy) (Entered: 03/27/2018)
ORDER REGARDING MOTION HEARINGS AND BRIEFING. Signed by Steve S
05/03/2018 35 Ratcliff, III on 5/3/18. (Blankenship, Dendy) (Entered: 05/03/2018)
MOTION to Transfer Venue by Defendants M. A. C. & Associates, LLc, M. A. C.
05/07/2018 36 Construction Co. of Ms, LLC, Marcus Wallace (Gibbs, Robert) (Entered: 05/07/2018)
RESPONSE in Opposition re 36 MOTION to Transfer Venue by Hemphill
05/17/2018 37 Construction Co., Inc. (Ellis, David) (Entered: 05/17/2018)
Case: 45CI1:16-cv-00090-ssr Document #: <docnum> Filed: <datefiled> Page 4 of 4
MEMORANDUM in Support re 37 Response in Opposition to Motion to Transfer by
05/17/2018 38 Hemphill Construction Co., Inc. (Attachments: # 1 Exhibit Wallace's Deposition
Transcript,) (Ellis, David) (Entered: 05/17/2018)
NOTICE of Hearing re 23 MOTION to Dismiss, 36 MOTION to Transfer Venue, 10
05/22/2018 39 MOTION to Dismiss by M. A. C. & Associates, LLc, M. A. C. Construction Co. of Ms,
LLC, Marcus Wallace (Gibbs, Robert) (Entered: 05/22/2018)
REBUTTAL in re 36 MOTION to Transfer Venue by M. A. C. & Associates, LLc, M.
05/29/2018 40 A. C. Construction Co. of Ms, LLC, Marcus Wallace. (Attachments: # 1 Exhibit
Discovery Responses,) (Gibbs, Robert) (Entered: 05/29/2018)
Set/Reset Deadlines as to 10 MOTION to Dismiss, 36 MOTION to Transfer Venue, 23
MOTION to Dismiss. Motion Hearing set for 5/30/2018 01:00 PM in Madison County
05/29/2018 Circuit Courthouse - Courtroom 1 before Steve S Ratcliff III. (Blankenship, Dendy)
(Entered: 05/29/2018)
Case: 45CI1:16-cv-00090-ssr Document #: 26 Filed: 10/10/2017 Page 1 of 5

IN THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI

HEMPHILL CONSTRUCTION CO., INC. PLAINTIFF

v. CAUSE NO. 16-090 JR

M.A.C. CONSTRUCTION CO. OF


MISSISSIPPI, LLC; M.A.C. & ASSOCIATES,
LLC; MARCUS L. WALLACE DEFENDANTS

PLAINTIFF’S MEMORANDUM IN SUPPORT OF


RESPONSE IN OPPOSITION TO MARCUS WALLACE’S MOTION TO DISMISS

Plaintiff, Hemphill Construction Co., Inc. (“Hemphill”)

submits this Memorandum in Opposition to Marcus Wallace’s

(“Wallace”) Motion to Dismiss [Doc. 23], as follows:

I. INTRODUCTION

In its First Amended Complaint, Hemphill asserted claims for

breach of contract and indemnity against M.A.C. & Associates, LLC,

M.A.C. Construction Co. of Mississippi, LLC and Marcus L. Wallace,

the sole owner of M.A.C. & Associates and M.A.C. & Construction.

Hemphill’s claims against Wallace stem from an indemnity agreement

(the “Indemnity Agreement”), which was executed by Wallace both as

officer of his business and in his individual capacity. A true

and correct copy of the Indemnity Agreement is attached hereto as

Exhibit “A” and made a part hereof. In addition, Hemphill has

rights against Wallace pursuant to a written assignment of claims

between Federal Insurance Company and hemphill (the “Assignment”).

A true and correct copy of the Assignment is attached hereto as

Exhibit “B” and made a part hereof. As such, the claims against

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Wallace are not, as Wallace argues, “solely for acting on behalf of

a limited liability company without more”. See Doc. 23. Instead,

the allegations against Wallace are for breaching obligations which

he personally owed as a result of his execution of the Indemnity

Agreement, Ex. “A” hereto.

II. ARGUMENT

A. Standard of Review

When determining a Motion to Dismiss brought under Miss. R.

Civ. P. 12(b)(6), “the allegations in the complaint must be taken

as true and the motion should not be granted unless it appears

beyond doubt that the plaintiff will be unable to prove any set of

facts in support of his claim.” Scaggs v. GPCH-GP, Inc., 931 So.2d

1274, 1275 (Miss. 2006)(quoting Lang v. Bay St. Louis/Waveland Sch.

Dist., 764 So.2d 1234 (Miss. 1999)). The motion to dismiss acts as

a legal checkup to determine whether, as a matter of law, assuming

all facts as plead by the Plaintiffs, the Complaint states a cause

of action against the defendant for which the law affords a remedy.

State v. Bayer Corp., 32 So.2d 496,502 (Miss.2010). In determining

whether to dismiss a lawsuit for failure to state a claim, “[t]he

allegations in the complaint must be taken as true, and there must

be no set of facts that would allow the plaintiff to prevail.” Rose

v. Tullos, 994 So.2d 734, 737 (Miss. 2008).

B. Taken as true, the allegations in the First Amended


Complaint render Wallace personally liable.

The only authority cited by Wallace as the basis for his

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Motion is Miss. Code Ann. § 79-29-311, which provides as follows:

§ 79-29-311. Liability to third parties

(1) Except as otherwise provided by this chapter, the debts,


obligations and liabilities of a limited liability company,
and no member, manager or officer of a limited liability
company shall be obligated personally for any such debt,
obligation or liability of the limited liability company
solely by reason of being a member, acting as a manager or
acting as an officer of the limited liability company.

(2) A member, manager or officer of a limited liability


company is not a proper party to a proceeding by or against a
limited liability company, by reason of being a member,
manager or officer, as applicable, of the limited liability
company, except:

(a) Where the object of the proceeding is to enforce a


member’s, manager’s or officer’s right against or
liability to the limited liability company; or

(b) In a derivative action brought pursuant to Article


11 of this Chapter.

(3) Notwithstanding the provisions of subsections (1) and (2),


under an operating agreement or under another agreement, a
member, manager or officer may agree to be obligated
personally for any or all of the debts, obligations and
liabilities of the limited liability company.

(Emphasis added). Wallace cites subsection 1 of the statute which

states that officers of limited liability companies shall not be

personally responsible “solely by reason of being a member, acting

as a manager or acting as an officer of the limited liability

company.” Miss. Code Ann. § 79-29-311(1). However, Wallace

ignores subsection 3 of the statue which provides that, “under an

operating agreement or under another agreement, a member, manager

or officer may agree to be obligated personally for any or all of

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the debts, obligations and liability of the limited liability

company.” Miss. Code Ann. § 79-29-311(3).

Hemphill alleges that Wallace signed the Indemnity Agreement

in his personal capacity and that Wallace breached the Indemnity

Agreement by failing to pay sums due to payment bond claimants.

See First Amended Complaint. Accordingly, Hemphill’s First Amended

Complaint should not be dismissed because, taken as true, the

allegations in the First Amended Complaint render Wallace liable

for breaching the Indemnity Agreement and for indemnity to

Hemphill.

WHEREFORE, PREMISES CONSIDERED, Hemphill Construction Co.,

Inc. respectfully requests that the Court deny Marcus L. Wallace’s

Motion to Dismiss.

This the 10th day of October, 2017.

Respectfully submitted,

HEMPHILL CONSTRUCTION CO., INC.

By Its Attorneys,

MOCKBEE HALL & DRAKE, P.A.

BY: /s/David B. Ellis


DAVID W. MOCKBEE MSB #3396
DAVID B. ELLIS, MSB #102926

MOCKBEE HALL & DRAKE, P.A.


Capital Towers, Suite 1820
125 South Congress Street
Jackson, MS 39201
(601) 353-0035 (phone)
(601) 353-0045 (fax)

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CERTIFICATE OF SERVICE

I, David B. Ellis, do hereby certify that on this day I

electronically filed the above and foregoing pleading with the

Clerk of the Court using the MEC system.

This the 10th day of October, 2017.

/s/ David B. Ellis


David B. Ellis

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Case: 45CI1:16-cv-00090-ssr Document #: 10 Filed: 06/09/2016 Page 1 of 2

IN THE CIRCUIT COURT OF THE OF MADISON COUNTY, MISSISSIPPI

HEMPHILL CONSTRUCTION CO. INC. PLAINTIFF

VS. CIVIL ACTION NO. 45CI1-16-cv-00090-SSR

M.A.C. & ASSOCIATES, LLC


MAC CONSTRUCTION OF MS, LLC
AND MARCUS L. WALLACE DEFENDANT

DEFENDANT MARCUS WALLACE’S MOTION TO DISMISS

Pursuant to Mississippi Rule of Civil Procedure 12(b)(6), Defendant, , by and through his

attorneys, hereby moves to dismiss the claims against Marcus Wallace, individually. As

demonstrated in the accompanying Memorandum of Law, Plaintiff, Hemphill Construction, fails

to allege any, let alone sufficient, facts to establish any recovery against Marcus Wallace. Rather,

Plaintiff’s claims merely allege claims against Marcus Wallace solely for acting on behalf of his

corporations – both Limited Liability Companies. The Mississippi Limited Liability Company

Act clearly shield Mr. Wallace from liability simply for acting on behalf of the limited liability

company without more. Accordingly, Defendant, Marcus Wallace, respectfully request that the

Court dismiss the claims against Marcus Wallace, for Failure to State a Claim in which relief can

be granted.

Dated this the 9th of June, 2016.

Respectfully submitted,

MARCUS WALLACE

s/ Robert L. Gibbs
Robert L. Gibbs
Case: 45CI1:16-cv-00090-ssr Document #: 10 Filed: 06/09/2016 Page 2 of 2

OF COUNSEL:

Robert L. Gibbs, MSB No. 4816


Tujuana S. McGee, MSB No. 104263
GIBBS TRAVIS PLLC
1400 Meadowbrook Road, Suite 100
Jackson, Mississippi 39211
Telephone: 601-487-2640
Facsimile: 601-366-4295
rgibbs@gibbstravis.com
tmcgee@gibbstravis.com

Certificate of Service

The undersigned hereby certifies that a true copy of the foregoing was duly served upon

all known counsel of record, this the 9th day of June, 2016, and upon all parties registered with the

Court’s electronic filing system by operation of the Court’s MEC system.

This the 9th day of June, 2016.

/s/ Robert L. Gibbs_________________


Robert L. Gibbs

2
Case: 45CI1:16-cv-00090-ssr Document #: 24 Filed: 09/30/2017 Page 1 of 4

IN THE CIRCUIT COURT OF THE OF MADISON COUNTY, MISSISSIPPI

HEMPHILL CONSTRUCTION CO. INC. PLAINTIFF

VS. CIVIL ACTION NO. 45CI1-16-cv-00090-JR

M.A.C. & ASSOCIATES, LLC


MAC CONSTRUCTION OF MS, LLC
AND MARCUS L. WALLACE DEFENDANTS

DEFENDANT, MARCUS WALLACE, MEMORANDUM


IN SUPPORT OF MOTION TO DISMISS

Defendant, Marcus Wallace, (hereinafter “Wallace”), by and through counsel and submits

this Memorandum in support of his Motion to Dismiss.

FACTUAL BACKGROUND

This matter involves a breach of contract law suit brought by Hemphill Construction. The

facts in this case are not heavily disputed. At all times, Wallace acted in his capacity as a President

for a Limited Liability Company. The lawsuit against Wallace; therefore, should be dismissed

because Wallace never acted in his individual capacity. Furthermore, Plaintiff has not alleged in

its Complaint any allegations that would justified Mr. Wallace being a party to this lawsuit. As

explained below, Mississippi Limited Liability Law shields persons from liability simply from

acting on behalf of the company.

ARGUMENT AND AUTHORITIES

I. STANDARD OF REVIEW

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability

requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.
Case: 45CI1:16-cv-00090-ssr Document #: 24 Filed: 09/30/2017 Page 2 of 4

Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops

short of the line between possibility and plausibility of ‘entitlement to relief. Ashcroft v. Iqbal,

129 S.Ct. 1937, 1949 (U.S.2009) (quoting Twombly, 550 U.S. at 556–57, 570). It follows that

“where the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to

relief.’ ” Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

Because Regions has failed to state a claim upon which relief could be granted, the claims

against Wallace must be dismissed.

HEMPHILL’S CLAIM AGAINST MARCUS WALLACE

In 1994, the Mississippi Legislature authorized the formation of limited liability companies

in Mississippi. Persons who form one of these legal entities—commonly known as an LLC—are

allowed to enter into a contract called a limited liability company agreement “to regulate or

establish the affairs of the limited liability company, the conduct of its business, and the relation

of its members.1

1
The Revised Mississippi Limited Liability Company Act, in regards to the liability of third parties, reads as follows:
(1) Except as otherwise provided by this chapter, the debts, obligations and liabilities of a limited liability
company, whether arising in contract, tort or otherwise, shall be solely the debts obligations and
liabilities of the limited liability company, and no member, manager or officer of a limited liability
company shall be obligated personally for any such debt, obligation or liability of the limited liability
company solely by reason of being a member, acting as a manager or acting as an officer of the limited
liability company.
(2) A member, manager or officer of a limited liability company is not a proper party to proceeding by or
against a limited liability company, by reason of being a member, manager of officer, as applicable, of
the limited liability company, except:
a. Where the object of the proceeding is to enforce a member’s, manager’s or officer’s right
against or liability to the limited liability company; or
b. In a derivative action brought pursuant to Article 11 of this chapter.
(3) Notwithstanding the provisions of subsections (1) and (2) of this sections, under an operating agreement
or under another agreement, a member, manager or officer may agree to be obligated personally for any
or all of the debts, obligations and liability of the limited liability company.
Miss. Code. Ann. § 79-29-311. (Supp. 2011).

2
Case: 45CI1:16-cv-00090-ssr Document #: 24 Filed: 09/30/2017 Page 3 of 4

On January 1, 2011, the Revised Mississippi Limited Liability Company Act went into

effect. See Miss. Code. Ann. §§ 79–29–101 to –1317 (Supp.2011). Mississippi Code Annotated

section 79–29–305(1) (Rev.2009) was amended and re-codified as Mississippi Code Annotated

section 79–29–311(1) (Supp.2011). The new code section provides a member cannot be personally

liable for an LLC debt “solely by reason of being a member [.]” Miss. Code Ann. § 79–29–311(1)

(Supp.2011) (emphasis added).

The Revised LLC Act goes on to state that a member, manager or officer of a limited

liability company is not a proper party to a proceeding by or against a limited liability company,

by reason of being a member, manager or officer, as applicable, of the limited liability company,

except:

(a) Where the object of the proceeding is to enforce a member's, manager's or officer's right
against or liability to the limited liability company; or
(b) In a derivative action brought pursuant to Article 11 of this chapter.

Miss. Code. Ann. § 79–29–311(1)

The allegations of this lawsuit is essentially a breach of contract suit action for failure to

pay for services render pursuant to the contract and failure to indemnify. Plaintiff alleges nothing

more Furthermore, all of Plaintiff’s allegations against Mr. Wallace are based on his duties as

President of his companies.

Limited liability companies can act only through their representatives. The M.A.C.

Companies would not be able to make representations regarding the contract absent a

representative action on behalf of the LLC. Furthermore, absent a clear indication that the person

intended to be held personally liable, a member or officer of an LLC cannot be held individually

liable for the debts, obligations and liabilities of the limited liability company, except in

circumstances under Miss. Code. Ann. 79-29-311(3), which are not found here.

3
Case: 45CI1:16-cv-00090-ssr Document #: 24 Filed: 09/30/2017 Page 4 of 4

WHEREFORE, PREMISES CONSIDERED, Defendant Marcus Wallace, respectfully

request that the Court to dismiss the claims against him, for failure to state a claim in which relief

can be granted.

Respectfully submitted,

MARCUS WALLACE

s/ Robert L. Gibbs
Robert L. Gibbs

OF COUNSEL:

Robert L. Gibbs, MSB No. 4816


Tujuana S. McGee, MSB No. 104263
GIBBS TRAVIS PLLC
210 East Capitol Street, Suite 1801
Jackson, Mississippi 39201
Telephone: 601-487-2640
Facsimile: 601-366-4295
rgibbs@gibbstravis.com
tmcgee@gibbstravis.com

Certificate of Service

The undersigned hereby certifies that a true copy of the foregoing was duly served upon

all known counsel of record, this the 30th day of September, 2017, and upon all parties registered

with the Court’s electronic filing system by operation of the Court’s MEC system.

This the 30th day of September, 2017.

/s/ Robert L. Gibbs_________________


Robert L. Gibbs

4
Case: 45CI1:16-cv-00090-ssr Document #: 21 Filed: 08/31/2017 Page 1 of 6

IN THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI

HEMPHILL CONSTRUCTION CO., INC. PLAINTIFF

v. Cause No. CI 2016-090-JR

M.A.C. & ASSOCIATES, LLC; DEFENDANTS


M.A.C. CONSTRUCTION CO. OF MS, LLC;
AND MARCUS L. WALLACE

FIRST AMENDED COMPLAINT

Plaintiff, Hemphill Construction Co, Inc. (“Hemphill”) files

this First Amended Complaint against Defendants, M.A.C. &

Associates, LLC (“MAC & Associates”), M.A.C. Construction Co. of

MS, LLC (“MAC Construction”) and Marcus L. Wallace (“Wallace”) as

follows:

I. PARTIES

1. a. Plaintiff, Hemphill, is a Mississippi Corporation

established under the laws of the State of Mississippi, with its

principal place of business located at 1858 Highway 49 South,

Florence, Mississippi 39073.

b. Defendant, MAC & Associates, is a Mississippi limited

liability company. MAC & Associates may be served with this First

Amended Complaint upon its attorneys of record in this lawsuit.

c. Defendant, MAC Construction, is a Mississippi limited

liability company which may be served with this First Amended

Complaint upon its attorneys of record in this lawsuit.

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d. Defendant, Wallace, is a Mississippi resident, who may

be served with this First Amended Complaint upon his attorneys of

record in this lawsuit.

II. Jurisdiction

2. This Court has jurisdiction over this action pursuant to

Miss. Code Ann. § 9-7-81 and Article 6, § 156 of the Mississippi

Constitution.

III. VENUE

3. Venue is proper in this court in accordance with Miss.

Code Ann. § 11-11-3 as Wallace resides in Madison County.

IV. FACTS

4. Hemphill is a commercial construction company established

in 1963 which specializes in large civil construction projects.

MAC Construction also performs commercial construction projects as

part of its business.

5. MAC Construction served as general contractor to the

Bureau of Buildings, Grounds, and Real Property Management of the

State of Mississippi for a building construction project at Jackson

State University known as the Capital Centre Improvements Project

(the “Project”).

6. MAC Construction procured payment and performance bonds

issued by Federal Insurance Company for the Project, and for each

of those bonds, Hemphill agreed to be an indemnitor along with MAC

& Associates and Wallace. In fact, Federal made Hemphill’s

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agreement to be an indemnitor a condition to issuing any bonds for

MAC Construction. A true and correct copy of each of the written

indemnity agreements pertaining to the bonds issued for the Project

is attached hereto collectively as Exhibit “A” and made a part

hereof.

7. Once the Project began, subcontractors and/or suppliers

to MAC Construction began making claims on the payment bonds issued

by Federal alleging that MAC Construction had failed to pay amounts

owed under the parties’ respective subcontract/purchase order.

8. As a result of the payment bond claims, Federal, MAC

Construction, MAC & Associates and Hemphill investigated the

claims, and agreed that certain amounts were in fact owed to each

payment bond claimant. Since MAC Construction, MAC & Associates

and Wallace failed and refused to pay the payment bond claimants,

Hemphill did so, through Federal, pursuant to Hemphill’s obligation

as indemnitor.

9. Hemphill has paid funds for which it has not been

reimbursed in order to satisfy payment bond claims and otherwise

fulfill its duties under the indemnity agreements, the exact amount

of which is to be shown at the trial of this cause.

10. In May 2017, Federal assigned its claims to Hemphill

relating to the Project and/or the Indemnity Agreement via a

written “Assigment” agreement which both parties signed (the

“Assignment”). A true and correct copy of the Assignment is

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attached hereto as Exhibit “B” and made a part hereof.

COUNT I - INDEMNITY

11. Hemphill incorporates by reference all preceding

paragraphs of its Complaint.

12. Hemphill stands in the shoes of Federal as it relates to

Federal’s claims against MAC & Associates and Wallace under the

indemnity agreement between Wallace, MAC and Federal.

13. In addition, Hemphill stands in the shoes of the

subcontractors and suppliers who filed payment bond claims because

of MAC Construction’s failure to pay.

14. Pursuant to the Indemnity Agreement, MAC & Associates and

Wallace are liable jointly and severally to exonerate and indemnify

Hemphill against any and all liability for losses and expenses of

whatsoever kind or nature, including attorneys’ fees and costs, by

reason of having executed the bonds, or by reason of the failure to

MAC & Associates or Wallace to perform or comply with the

covenants and conditions of the Indemnity Agreement.

15. Pursuant to the Indemnity Agreement, all payments made by

Federal on the projects are evidence of the fact and amount of MAC

& Associates and Wallace’s liability to Federal as to these claims.

16. MAC & Associates, MAC Construction and Wallace are

therefore liable to Hemphill for the amounts paid by Hemphill to

date for which it has not been reimbursed, as well as other losses

and expenses of whatsoever kind or nature, including attorneys’

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fees and expenses that Hemphill may incur in connection with the

bonds, the exact amount of which is to be shown at the trial of

this cause.

COUNT II - BREACH OF CONTRACT

17. Hemphill incorporates by reference all preceding

paragraphs of its Complaint.

18. As stated above, Hemphill stands in the shoes of Federal

and the various subcontractors and suppliers to the extent that MAC

Construction, MAC & Associates, and Wallace have failed to abide by

the terms of their various contracts.

19. MAC & Associates, MAC Construction and Wallace’s failure

to pay the amounts owed by the subcontractors and suppliers, which

were ultimately paid by Hemphill, is a breach of those contracts

which has proximately caused damage to Hemphill in the amounts paid

by Hemphill to date, as well as other losses and expenses of

whatsoever kind or nature, including attorneys’ fees and expenses

that Hemphill may incur in connection with the bonds, the exact

amount to be shown at the trial of this cause.

WHEREFORE, PREMISES CONSIDERED, Hemphill Construction Co.,

Inc. demands judgment of and from Defendants, M.A.C. Construction

Co. of MS, LLC, M.A.C. & Associates, LLC and Marcus L. Wallace,

jointly and severally, as follows:

a. a judgment jointly and severally against MAC

Construction, MAC & Associates and Marcus Wallace in the

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amount which Hemphill has paid but not been reimbursed,

the exact amount of which is to be shown at the trial of

this cause, plus Hemphill’s attorneys fees and expenses;

b. Pre- and post-judgment interest in the maximum amount

allowed under the law from the date Hemphill paid each

claim until Hemphill is paid in full; and,

c. For such relief as this Court may deem just and proper.

THIS THE 31st day of August, 2017.

Respectfully submitted,

HEMPHILL CONSTRUCTION CO., INC.

By Its Attorneys,

MOCKBEE HALL & DRAKE, P.A.

BY: /s/David B. Ellis


DAVID W. MOCKBEE MSB #3396
DAVID B. ELLIS, MSB #102926

MOCKBEE HALL & DRAKE, P.A.


Capital Towers, Suite 1820
125 South Congress Street
Jackson, MS 39201
(601) 353-0035 (phone)
(601) 353-0045 (fax)

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