Gallegos v. Mid-South Mortgage & Investment, Inc., et al.
| Docket Number: | 2005-CA-01521-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-08-2007 Opinion Author: KING, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Fraud - Intentional misrepresentation - Conspiracy - M.R.C.P. 41(b) Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 03-02-2005 Appealed from: Lauderdale County Chancery Court Judge: Sarah P. Springer Disposition: CHANCELLOR GRANTED DEFENDANTS’ RULE 41(b) MOTION TO DISMISS, AND ENTERED JUDGMENT IN FAVOR OF DEFENDANTS. Case Number: 01-1138S |
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| Party Name: | Attorney Name: | |||
| Appellant: | JESSE CARMICHAEL GALLEGOS AND GREG V. GALLEGOS |
DANIEL M. CZAMANSKE
DAVID A. BURNS
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| Appellee: | MID-SOUTH MORTGAGE & INVESTMENT, INC., DAVID C. HAND, RANDALL K. FISHER AND R. G. THOMAS | GARY B. JONES DAVID C. HAND – PRO SE RANDALL K. FISHER – PRO SE |
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| Topic: | Real property - Fraud - Intentional misrepresentation - Conspiracy - M.R.C.P. 41(b) |
| Summary of the Facts: | Jesse Gallegos and Greg Gallegos filed a complaint asserting fraud, intentional misrepresentation, and conspiracy against Mid-South Mortgage & Investment, Inc., David Hand, Randall Fisher, and R.G. (Gail) Thomas. The court granted the defendants motion to dismiss, and the Gallegoses appeal. |
| Summary of Opinion Analysis: | The elements of intentional misrepresentation and fraud include a representation; its falsity; its materiality; the speaker's knowledge of its falsity or ignorance of the truth; his intent that it should be acted on by the hearer and in the manner reasonably contemplated; the hearer's ignorance of its falsity; his reliance on its truth; his right to rely thereon; and his consequent and proximate injury. The evidence presented during the Gallegos’ case-in-chief failed to prove that Hand, Fisher, or Thomas made a false representation to Jesse. Failure to prove any of the elements of fraud or intentional misrepresentation was grounds for the chancellor to grant the M.R.C.P. 41(b) motion to dismiss. As to the charge of conspiracy alleged in the complaint, it is imperative that a plaintiff asserting a cause of action for conspiracy prove that the parties had an agreement, either to accomplish an unlawful purpose or to accomplish a lawful purpose unlawfully. The evidence did not prove that Hand, Fisher, and Thomas – or any combination of the three – conspired to take Jesse Gallegos’ property. To the contrary, Jesse’s own testimony states that the timber contract arose over a chance encounter. Additionally, the evidence does not show that there was an agreement to take the property, only an attempt on the part of Hand and Fisher to undo a bad business decision. Although the chain of events in this case raises serious questions that Hand and Fisher, and possibly Thomas, were operating with more sinister motives following their discovery of the lack of value in the timber on Jesse’s property, the appellate court is limited to a substantial evidence/manifest error standard, with regard to both the chancellor’s findings of fact and the chancellor’s decision to grant the Rule 41(b) motion to dismiss. Under that limited standard, the court cannot say that the chancellor erred in granting the motion or that her findings of fact are not supported by the evidence. |
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