Point South Land Trust v. Gutierrez
| Docket Number: | 2006-CA-01127-COA Linked Case(s): 2006-CA-01127-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-16-2008 Opinion Author: BARNES, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Breach of contract - Reliance on improper evidence - M.R.C.P. 56 - Settlement agreement Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Ishee, Roberts, and Carlton, JJ. Non Participating Judge(s): CHANDLER, J. Dissenting Author : IRVING, J., without separate written opinion. Procedural History: Summary Judgment Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 06-23-2006 Appealed from: Harrison County Chancery Court Judge: Carter Bise Disposition: SUMMARY JUDGMENT GRANTED TO DEFENDANT SELLERS Case Number: C2402-05-270(4) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | POINT SOUTH LAND TRUST AND DEAN ROFFERS, TRUSTEE |
H.R. WILDER,
THOMAS C. ANDERSON,
LEO ERNEST MANUEL |
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| Appellee: | RAMON GUTIERREZ, BACK BAY CASINO OF BILOXI, LLC AND BAYVIEW GUTIERREZ, LLC | MICHAEL B. MCDERMOTT, LES W. SMITH |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Contract - Breach of contract - Reliance on improper evidence - M.R.C.P. 56 - Settlement agreement |
| Summary of the Facts: | Dean Roffers, acting as trustee for Point South Land Trust, entered into negotiations with Ramon Gutierrez for the possible sale of the property at issue. The property has access to the waters of the Back Bay in Biloxi; thus, it is suitable for, and had been marketed as, a gaming site. Point South executed a promissory note for $100,000, “issued as a non-refundable down payment on a Contract for Sale” of 9.2 acres of land from Gutierrez to Point South. The note stated the full amount of the principal and interest was due February 23, 2005. On January 25, 2005, Point South executed a contract for the sale and purchase of the real property in the amount of $3.5 million, including a $100,000 “cash down payment,” which the contract stated was to be paid at closing. The contract required that all regulatory permits held by Gutierrez be assignable to Point South, that this assignability be acknowledged by the governmental agency at issue, and there be no tidelands lease that would affect the use of the property; evidence of satisfaction of all obligations against Back Bay Casino; a clean fee simple title be conveyed; certain discrepancies between the title description and the survey be resolved; and proof of Back Bay’s being in good corporate standing with the State of Mississippi. It became apparent that the parties would be unable to close on January 31, and they mutually agreed to extend the closing thirty more days, or until March 2, 2005, in order to cure the defects in the title and thereby satisfy Point South’s concerns. After various problems, Point South requested from Sellers an extension until March 31, 2005, in which to close. After consideration, Sellers offered to extend the deadline until this date, but only upon execution of an extension agreement, a mutual release, and an additional promissory note in the amount of $50,000. Rather than accepting the offer, Point South sued Sellers in the Harrison County Chancery Court for specific performance of the contract for sale and filed a lis pendens against the property. Sellers counterclaimed against Point South, contending that Point South’s lis pendens constituted slander of title. Also, Sellers sought damages for tortious interference with a prospective business advantage. Sellers filed a motion for summary judgment. The chancery court entered an order striking Point South’s response to the itemized facts and affidavits because they were untimely and granting a partial summary judgment to Sellers regarding Point South’s specific performance claim. Point South filed a motion to reconsider the partial summary judgment. The chancellor denied the motion and entered its final judgment in favor of Sellers, dismissing the action with prejudice. Point South appealed. After oral argument on appeal, the parties were granted several stays of the proceeding in order to consummate a settlement. Subsequently, Point South filed a motion to enforce the settlement agreement or, in the alternative, continue to stay the proceedings. |
| Summary of Opinion Analysis: | Issue 1: Breach of contract Point South argues that the record does not support the chancellor’s findings that Sellers satisfied all of the requirements under the contract or that Point South breached the contract by failing to close and to pay the promissory note. The chancellor found the requirements of the contract had been met by Sellers, and Point South’s subsequent failures to close and to pay the promissory note had breached the contract. The chancellor found that either Point South’s failure to close or its failure to pay the promissory note was a proper basis for summary judgment on the specific performance claim. The majority of Point South’s arguments in opposition to the partial summary judgment were articulated subsequent to the initial ruling. In determining whether summary judgment is appropriate, it is not the trial court’s responsibility to identify the material facts in dispute; but the parties’ responsibility. Point South did not do this. Issue 2: Reliance on improper evidence Point South argues that McDermott’s affidavit is invalid on its face and the chancellor improperly relied upon it in granting summary judgment, i.e., the affidavit failed to attach sworn or certified copies of the survey and title commitment letter it referenced. Point South may have identified minor errors and deficiencies in Sellers’ affidavit, but the record indicates Point South neither made any motion to strike regarding the affidavits nor any objection to the sufficiency of Sellers’ evidence under M.R.C.P. 56 prior to or at the hearing on the motion for summary judgment. While Point South did raise this issue in its motion for reconsideration, it never moved to strike the evidence. It is well established that a party must move to strike an affidavit that violates the rule, and if he fails to do so, he will waive his objection and, in the absence of gross miscarriage of justice, the court may consider the defective affidavit. Issue 3: Settlement agreement The enforcement of the settlement agreement between Point South and Sellers was not raised in the trial court. The appellate court has no original jurisdiction and can only examine questions that have been tried and passed upon by the court from which the appeal is taken. The motion is dismissed without prejudice so that Point South can litigate this issue in an appropriate forum, if it so desires. |
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