Welsh v. Mounger, et al.
| Docket Number: | 2002-CA-01245-SCT Linked Case(s): 2002-CA-01245-SCT2002-CA-01245-SCT2002-CA-01245-SCT2002-CA-01245-SCT2002-CA-01245-SCT2002-CA-01245-SCT |
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| Oral Argument: | 05-10-2005 | |
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| Supreme Court: | Opinion Link Opinion Date: 07-01-2004 Opinion Author: Cobb, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Fraud - Exclusion of memo - M.R.E. 901 - M.R.E. 803(6) Judge(s) Concurring: Smith, C.J., Carlson and Dickinson, JJ. Non Participating Judge(s): Waller, P.J., Diaz, Graves and Randolph, JJ. Dissenting Author : Easley, J. Procedural History: Bench Trial Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 06-27-2002 Appealed from: Hinds County Chancery Court Judge: Denise Owens Disposition: Entered an order of dismissal with prejudice. Case Number: G2000-1611 O/3 |
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| Note: | Appellee's motion to dismiss interlocutory appeal is denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Edwin Welsh |
GRADY F. TOLLISON, JR.
E. FARISH PERCY
JOHN LEONARD WALKER
PHILLIP J. BROOKINS
DANA E. KELLY
JAMES R. HUBBARD |
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| Appellee: | William M. Mounger, II, E. B. Martin, Jr., MSM, Inc. and Mercury Wireless Management, Inc. | PAUL STEPHENSON, III GEORGE R. FAIR JOHN L. MAXEY, II DONNA ROSS PHILIP |
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| Topic: | Fraud - Exclusion of memo - M.R.E. 901 - M.R.E. 803(6) |
| Summary of the Facts: | Edwin Welsh and William Mounger II, E.B. Martin Jr., MSM, Inc., and Mercury Wireless Management, Inc. executed an Absolute Release with Covenants memorializing a settlement of Welsh’s stock ownership claims. Upon joint motion of the parties, the chancery court entered an order of dismissal with prejudice of the civil action which had been filed. Welsh later filed another action, alleging that the settlement was procured by fraud. The court found in favor of Mounger and Martin. Welsh appeals. |
| Summary of Opinion Analysis: | Welsh argues that the defendants had a duty to inform him, prior to executing the settlement, that an IPO of Tritel stock was imminent. The elements of fraud include a representation, its falsity, its materiality, the speaker’s knowledge of its falsity or ignorance of its truth, his intent that it should be acted upon by the person 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 misrepresentation in question was the answer to a deposition question within the context of a law suit. Mounger’s answer to a question regarding discussions with Martin or Sullivan about the possibility of an IPO occurring, as well as Mounger’s qualifications “nothing that I would consider discussions” and “other than the fact that that is a possible scenario at some point in the future” are responsive to the narrow questions posed, and Welsh’s attorney could have followed up with more probing questions. Although Mounger and Martin were contacted, subsequent to the depositions, by six different investment firms who presented sales pitches regarding their services of providing equity financing, and the possibility of an initial public offering (IPO), the idea of “going public” was only one of several options under consideration at the time the settlement agreement with Welsh was reached. Every omission to communicate facts, although material, is not necessarily fraudulent. Where the parties are dealing at arm’s length, a mere failure of one party to disclose facts which are not asked about is not sufficient to invalidate the agreement, where the party has done nothing to mislead the other party. Mounger and Martin did nothing to mislead nor did they intentionally conceal the facts. Welsh also argues that the court erred in excluding a memorandum that he offered into evidence which purported to show that the defendants had expressed plans to offer Tritel stock for sale. The court did not abuse its discretion when it excluded the memorandum from evidence. Welsh never authenticated the document because Welsh’s witness never identified the memorandum as one that documented the meeting, i.e. that it was “what it is claimed to be” as required by M.R.E. 901 or a “business record” under M.R.E. 803(6). |
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