Moran v. Fairley
| Docket Number: | 2003-CA-01821-COA Linked Case(s): 2003-CA-01821-SCT2003-CT-01821-SCT2003-CA-01821-SCT2003-CA-01821-COA |
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| Oral Argument: | 01-11-2005 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-10-2005 Opinion Author: BRIDGES, P.J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Contract - Negligent misrepresentation - Fraudulent misrepresentation Judge(s) Concurring: MYERS, GRIFFIS, BARNES AND ISHEE,JJ. Non Participating Judge(s): LEE, P.J. Dissenting Author : CHANDLER, J. Dissent Joined By : KING, C.J. Procedural History: Jury Trial Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 04-23-2003 Appealed from: Harrison County Circuit Court Judge: Marcus D. Gordon Disposition: JURY VERDICT IN FAVOR OF PLAINTIFF IN AMOUNT OF $975,000 IN COMPENSATORY DAMAGES. Case Number: A2401-2000-197 |
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| Party Name: | Attorney Name: | |||
| Appellant: | TERRY MORAN AND MARK SEYMOUR, SR. |
STEVEN ALFRED KOHNKE, RONALD G. PERESICH, J. HENRY ROS, JOHANNA MALBROUGH MCMULLAN |
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| Appellee: | JAMES L. FAIRLEY, JR. | CYNTHIA A. LANGSTON |
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| Topic: | Contract - Negligent misrepresentation - Fraudulent misrepresentation |
| Summary of the Facts: | James Fairley, Jr. sued Terry Moran and Mark Seymour, Sr., alleging negligent misrepresentation, fraud, and breach of contract. The jury returned a general verdict for Fairley and awarded $975,000 in damages. Moran and Seymour appeal. |
| Summary of Opinion Analysis: | Issue 1: Negligent misrepresentation Moran and Seymour argue that Fairley failed to prove the essential elements of negligent misrepresentation. In order to establish a prima facie case of negligent misrepresentation, a plaintiff is required to show a misrepresentation or omission of a fact; that the representation or omission is material or significant; that the defendant failed to exercise that degree of diligence and expertise the public is entitled to expect of it; that the plaintiff reasonably relied on the defendant's representations; and that the plaintiff suffered damages as a direct and proximate result of his reasonable reliance. The first element of negligent misrepresentation, misrepresentation of a fact, must concern a past or present fact, as contrasted with a promise of future conduct. The substance of Fairley’s alleged misrepresentation is the alleged falsity of the statement that Moran and Seymour intended to abandon plans to develop a casino at D’Iberville Landing because they would never receive permission to build a casino at D’Iberville Landing. Reason dictates that a representation of “there will never be a casino” somewhere is a commitment to certain future conduct. No evidence suggests that Moran and Fairley ever promised to stop attempts to develop D’Iberville Landing as a casino site. No evidence suggests that Moran and Seymour misrepresented the status of the attempts to receive a permit to develop a casino at D’Iberville Landing. Therefore, Fairley failed to prove negligent misrepresentation. Issue 2: Fraudulent misrepresentation Moran and Seymour argue that Fairley did not submit sufficient evidence of fraudulent misrepresentation. Fairley alleges fraud in Moran and Seymour’s comments in board meetings that “there would never be a casino at D’Iberville Landing.” Fairley faces the same hurdles in proving his fraud claim as he faced in proving negligent misrepresentation. A successful claim for fraudulent representation must relate to past or present existing facts, and cannot be based on a promise, except where a contractual promise is made with the present undisclosed intention of non-performance. Fairley’s allegation of fraud is not sufficient to sustain a verdict. Moran and Seymour’s representations are not based on past or present facts. None of those statements were regarded as contractual promises. Further, Moran and Seymour’s statement was true at the time they spoke. Therefore, the court erred by presenting Fairley’s claim of fraudulent misrepresentation to the jury, as the evidence was not sufficient to create an issue upon which reasonable jurors could disagree. Issue 3: Breach of contract Fairley’s claim for breach of contract stems from the agreement between Moran and Seymour obligating Moran and Seymour to bid up to $500,000 on property owned by Fairley and Bobby Taylor. The agreement made that obligation conditional upon foreclosure proceedings being initiated within sixty days of entering the agreement. Moran and Seymour argue that there is no evidence of breach of the contract to purchase property because the foreclosure proceedings were not within the sixty-day window contemplated by the contract. There is no evidence in the record that would obligate Moran and Seymour to bid on a foreclosure sale resulting from a foreclosure proceeding initiated outside the sixty-day window. Therefore, there was no breach of contract. |
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