                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                   UNITED STATES COURT OF APPEALS
                                                          September 4, 2007
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk


                              06-60906
                          Summary Calendar



     UNITED STATES OF AMERICA
     for the use and benefit of ROY SHANNON,

                                       Plaintiff-Appellant,

                                 v.

     FEDERAL INSURANCE COMPANY; FIDELITY & DEPOSIT COMPANY OF
     MARYLAND; WHITESELL-GREEN INC., Individually and jointly with
     W.G. Yates & Sons Construction Co., a Mississippi Corporation;
     W.G. YATES & SONS CONSTRUCTION CO., Individually and jointly
     with Whitesell-Green Inc., a Florida Corporation,

                                       Defendants-Appellees.



            Appeal from the United States District Court
         for the Southern District of Mississippi, Gulfport
                              1:05-CV-54



Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*



     Plaintiff Roy Shannon (“Shannon”) was employed as a project

manager at Whitesell-Green, Inc. (“WGI”). WGI entered into a joint

venture (“Joint Venture”) with another company, W.G. Yates & Sons

     *
       Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Construction Company (“Yates”), so that they could pool their

resources and bid on construction contracts at Keesler Air Force

Base in Biloxi, Mississippi (“Keesler”).         Shannon assumed the

position of project manager for the Joint Venture.      He was put on

the Joint Venture’s payroll in October of 1998.      Shannon remained

the project manager of the Joint Venture at Keesler until February

2004, when he was terminated.

     Shannon’s contract with the Joint Venture was unwritten, and

though the parties to this case all agree that a contract existed,

they disagree about the terms.        It is undisputed that Shannon’s

position carried a salary of $2,000 per week, plus an annual

Christmas bonus of at least $50,000.       It is also undisputed that

Shannon received this sum for approximately five and a half years.

However, Shannon claims that he was entitled to receive additional

compensation of three types. First, he claims that he was entitled

to one-half the profits above and beyond the originally anticipated

profits, if any, earned by the Joint Venture on the first project.

Second, he says that once the Joint Venture began to bid on

additional contracts, there was an unwritten agreement that he

would receive one percent of the contract amount of each subsequent

contract, regardless of profit.   Third, Shannon says that an SUV,

which was purchased by the company but used exclusively by him, was

his to keep, and that the Joint Venture breached its unwritten

agreement by repossessing the vehicle some six months after his

termination.   Having not received the compensation to which he

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believed he was entitled, Shannon filed this lawsuit, asserting

claims   for    breach   of   contract,   quantum   meruit,   and   wrongful

discharge.

     Shannon also included a federal claim under the Miller Act, 40

U.S.C. §§ 3131, 3133, which explains how an otherwise ordinary

contract case, raising several questions of Mississippi state law,

ended up in federal court.          Under the Miller Act, before any

contract of more than $100,000 for the construction, alteration, or

repair of any public building or public work of the United States

is awarded to any person, such person is required to furnish to the

United States both a performance bond and a payment bond.                The

performance bond guarantees federal taxes on wages paid by the

contractor to his or her employees.         The payment bond is “for the

protection of all persons supplying labor and material in carrying

out the work provided for in the contract for the use of each

person.”     40 U.S.C. § 3131(b)(2).      The purpose of the Act is “to

protect those whose labor and materials go into public projects,”

MacEvoy Co. v. United States, 322 U.S. 102, 107 (1944) (citations

omitted).      On this basis, Shannon brought a federal claim against

the sureties charged with protection of the payment bond.

     The district court granted summary judgment for the defendants

on all four of Shannon’s claims, and Shannon appealed.              We review

motions for summary judgment de novo, applying the same standards

as the district court.         FED R. CIV. P. 56.     Summary judgment is


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inappropriate whenever a genuine issue of material fact exists.   A

genuine issue of material fact exists when, in the context of the

entire record, a reasonable fact-finder could return a verdict for

the non-movant.    Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248–49 (1986).    All evidence must be construed in the light most

favorable to the party opposing summary judgment. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986)

(citations omitted).

     1.   Breach of Contract

     The district court granted summary judgment on Shannon’s

breach of contract claim after finding that it was barred by the

statute of limitations. There is no dispute that the relevant

limitations period for breach of an unwritten contract is one year

from the time the cause of action accrued.    Miss. Code § 15-1-29

(1972).   The only dispute is the date of accrual.   In Mississippi,

a cause of action accrues as soon as the cause of action exists.

See, e.g., Greenlee v. Mitchell, 607 So.2d 97, 110 (Miss. 1992).

In breach of contract cases, that is the time “when the breach, not

the injury, accrues,” or, in other words, “at the time of the

breach regardless of when damages resulting from the breach occur.”

First Trust Nat’l Ass’n v. First Nat’l Bank of Commerce, 220 F.3d

331, 334–35 (5th Cir. 2000).   Because the plaintiff, in effect, is

alleging two different breaches, one for the first project and one

for all subsequent projects, we treat them separately.


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      As to the first project, Shannon claims that he was entitled

to one half of the profits above and beyond $2.5 million, which was

the original estimated profit.        As of September 29, 2003, Shannon

knew that the operation would be more profitable than originally

anticipated, and thus that he was entitled to some gain.            However,

at that point Shannon says he could not have known exactly how

profitable the project would be, and thus could not know exactly

how much money he would receive.          Instead, he argues that the

accrual date is the date the project was physically completed,

which occurred some time in December of 2004.          Shannon did not file

his lawsuit until February, 2, 2005.

      We find Shannon’s argument unavailing.          First, the foregoing

case law makes plain that the date of breach, not the date of

injury (or, in Shannon’s case, the date on which the full extent of

the injury was finally calculable) is the controlling date for

accrual purposes. Shannon has presented no case law to support the

proposition that a party must know to a mathematical certainty the

amount of recovery to which he is entitled.          In fact, the analogous

case law in Mississippi suggests otherwise.          See, e.g., Jackson v.

State Farm Mut. Auto. Insur. Co., 880 So.2d 336, 341 (Miss. 2004)

(holding, in uninsured motorist context, that action accrues once

someone “knows, or reasonably should know, that the damages he or

she   claims   to   have   suffered   exceed   the   limits   of   insurance

available to the alleged tortfeasor”).         Second, we must note that


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Shannon drastically overstates his uncertainty as of September

2003.   Shannon stated in his response to an interrogatory that on

September 29, 2003, he knew “as a fact [that] 99% of the job costs

were complete,” because he “was provided a written copy of the

profits from Yates.”       At that time, then, Shannon had nearly

perfect   knowledge   of   the   amount   of   money    to    which   he   was

purportedly entitled, and he further knew that so long as the

defendants had not paid him his due, they were in breach of the

unwritten contract.    In fact, he stated in both his complaint and

his deposition that he had made repeated demands on the Joint

Venture to pay him what he was owed on the first project since

August of 2000, or roughly four and a half years before he filed

this lawsuit. In sum, the record clearly indicates that any breach

as to the first project occurred more than a year before the suit

was filed, and that Shannon knew as much.             Summary judgment was

therefore proper.

     Summary   judgment    was   also   proper   as    to    the   additional

projects.   Shannon alleges that he was to receive one percent of

the contract price of each additional project that he secured for

the Joint Venture. Under the terms of the agreement, Shannon would

be entitled to payment once the contracts were awarded.             The Joint

Venture won several additional contracts, the last of which came on

December 29, 2003.     Any breach as to these additional projects

therefore occurred more than a year before this suit was filed, and



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summary judgment was proper.1

      2.   The Miller Act

      As we have said, the Miller Act protects those “whose labor

and materials go into public projects.”           MacEvoy Co. v. United

States, 322 U.S. 102, 107 (1944) (citations omitted).          Shannon’s

claim under the Act turns on whether or not he performed “labor” as

that term is used in the statute.       The district court found that he

did not, and we agree.      Shannon concedes that any duties he was

required to perform as project manager are irrelevant for purposes

of the Miller Act because he was already compensated for them.         The

Miller Act only affords him relief if he performed additional labor

for which he was not compensated.          Shannon alleges that he did

perform such additional duties, which he describes as “negotiating

new contracts, determining bid amounts and change orders, preparing

bid   proposals,   negotiating   and    signing   new   subcontracts   and

purchase orders.”   He also claims that his labor included living on

the job site, cleaning the office and bathrooms, and other such

tasks.

      The term “labor” in the Miller Act was primarily designed to

encompass physical or manual labor.          See United States ex rel.

Constructors, Inc. v. Gulf Ins. Co, 313 F. Supp. 2d 593, 597 (E.D.



      1
      Shannon’s claim for equitable estoppel as to the statute of
limitations is similarly unavailing. The record does not reveal
any representations on the part of the Joint Venture that could
reasonably have induced Shannon’s reliance to his own detriment.

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Va. 2004) (holding that “[p]aying invoices, reviewing proposals,

and supervising hiring are clerical or administrative tasks which,

even if performed at the job site, do not involve the physical toil

or manual work necessary to bring them within the scope of the

Miller Act”); see also United States for the Use of Barber-Colman

Co. v. United States Fid. & Guar. Co., 19 F.3d 1431 (4th Cir. 1994)

(unpublished opinion) (noting that “labor” includes “physical toil,

but not work by a professional, such as an architect or engineer”

(internal quotation omitted)); United States ex rel. Olson v. W.H.

Cates Constr. Co., Inc., 972 F.2d 987, 990 (8th Cir. 1992) (“[O]nly

certain professional supervisory work is covered by the Miller Act,

namely,   skilled     professional       work   which        involves     actual

superintending,     supervision,   or    inspection     at    the   job   site.”

(internal quotation omitted)); Glassell-Taylor Co. v. Magnolia

Petroleum Co., 153 F.2d 527, 529–30 (5th Cir. 1946) (discussing

purpose of Act and surveying cases of qualifying labor, all of

which are manual or physical in nature). The additional labor that

Shannon claims to have provided does not match this description.

Moreover, any potentially qualifying “supervisory” work that he

might have provided at the site fell under his role as a project

manager, and he has already been compensated for it.                      Summary

judgment was therefore proper as to Shannon’s Miller Act claim.

     3.   Quantum Meruit

     Shannon proffers an alternative theory under quantum meruit,


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in the event that a contract is not found to exist.                      Because the

district court found, by the parties’ own admissions, that an

enforceable agreement did exist, it denied any recovery under

quantum meruit, noting that under Mississippi law, “[w]here there

is a contract, parties may not abandon same and resort to quantum

meruit.” Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv.

Corp.,      743    So.2d   954,    970    (Miss.    1990)    (internal        quotation

omitted).         On appeal, Shannon argues that the parties do not

concede that a contract exists.                His argument seems to be that the

purported         agreements      for    additional       compensation        were   new

contracts, that the defendants deny their existence, and therefore

that   recovery       is   available      in    quantum    meruit.       We    are   not

persuaded.         Clearly the parties all admit that an enforceable

contract existed; they simply dispute some of its terms.                         On the

basis of that contract, Shannon provided services to the Joint

Venture for over five years, during which time he collected payment

in excess of $2,000 per week, plus an annual bonus.                  He now claims

that, under the terms of that contract, was entitled to more.                        That

is a contract claim, plain and simple, and had Shannon filed it in

time, it would have been actionable.                   Having failed to do so,

however, he cannot now sidestep that agreement and pursue a theory

of quantum meruit.         Summary judgment was proper as to this claim.

       4.    Wrongful Discharge

       Finally, Shannon includes a claim for wrongful discharge. The


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district court dismissed this claim on the basis that Shannon was

an “at will” employee, and thus cannot bring a suit for wrongful

discharge under Mississippi law. See Levens v. Campbell, 733 So.2d

753, 760 (Miss. 1999) (“[A]bsent an employment contract expressly

providing to the contrary, an employee may be discharged at the

employer’s will for good reason, bad reason, or no reason at all,

excepting reasons only declared legally impermissible.”); see also

Perry v. Sears, Roebuck & Co., 508 So.2d 1086, 1088 (Miss. 1987)

(explaining longstanding rule that “at will” employment is inferred

where there is no contract of employment or contract does not

specify definite term of employment).      Shannon’s contract of

employment did not expressly specify a definite term, rendering him

an “at will” employee.   Thus, the district court properly granted

summary judgment as to this claim.

                            CONCLUSION

     For the reasons stated herein, the district court’s grant of

summary judgment is AFFIRMED.




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