Alfonso v. Gulf Publ'g Co., Inc., et al.


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Docket Number: 2009-CA-01457-SCT
Linked Case(s): 2009-CA-01457-SCT

Supreme Court: Opinion Link
Opinion Date: 03-08-2012
Opinion Author: Chandler, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Contract - Motion to compel arbitration - M.R.A.P. 4(a) - Intentional interference with contract - Proximate causation
Judge(s) Concurring: Waller, C.J., Carlson, P.J., Lamar, Kitchens, Pierce and King, JJ.
Non Participating Judge(s): Randolph, J.
Concur in Part, Dissent in Part 1: Dickinson, P.J., Concurs in Part and Dissents in Part Without Separate Written Opinion
Procedural History: Summary Judgment
Nature of the Case: CIVIL - CONTRACT

Trial Court: Date of Trial Judgment: 07-28-2009
Appealed from: Hancock County Chancery Court
Judge: Edward C. Prisock
Disposition: Granted summary judgment to Appellees.
Case Number: 97-0420
  Consolidated: 2010-CA-00091-SCT Thomas R. Alfonso, III and Anne Alfonso d/b/a Bay Jourdan Publishing Company v. Diamondhead Country Club and Property Owners Association, Inc.; Hancock Chancery Court; LC Case #: 97-0420; Ruling Date: 12/06/2009; Ruling Judge: Edward C. Prisock

Note: Appellee's Precautionary Third Motion to Reconsider and/or Modify Trial Court Order Requiring Appellee to Pay Transcription Costs of Supplemental Record on Appeal is denied. Alfonso's request for sanctions is denied.

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Thomas R. Alfonso, III and Anne Alfonso d/b/a Bay Jourdan Publishing Company




DAVID NEIL MCCARTY



 

Appellee: Gulf Publishing Co., Inc. and The Sun Herald HENRY LAIRD WILLIAM V. WESTBROOK, III  

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Topic: Contract - Motion to compel arbitration - M.R.A.P. 4(a) - Intentional interference with contract - Proximate causation

Summary of the Facts: These two appeals are from consolidated chancery-court cases. In the first case, Diamondhead Country Club and Property Owners Association, Inc. sued Thomas R. Alfonso, III, and Anne Scafidi Cordova, d/b/a Bay Jourdan Publishing Co., for breach of a contract to publish The Diamondhead News. On July 2, 1997, the chancery court entered a preliminary injunction order preventing BJP from publishing The Diamondhead News, selling advertising for The Diamondhead News, collecting or disposing of advertising revenues derived from the publication of The Diamondhead News, and interfering with the printing, publication, or distribution of The Diamondhead News. The chancery court denied BJP’s two subsequent motions to compel arbitration of the breach-of-contract dispute. BJP appeals. In the second case, BJP sued Diamondhead and Gulf Publishing Co., Inc., d/b/a The Sun Herald, for intentional interference with the publishing contract. Gulf Publishing filed a motion for summary judgment. The court granted summary judgment to Gulf Publishing and directed the entry of a final judgment as to Gulf Publishing. BJP appeals.

Summary of Opinion Analysis: Issue 1: Motion to compel arbitration In the order granting a preliminary injunction, the chancellor denied BJP’s request for arbitration. BJP filed a motion to compel arbitration on June 28, 2001. The chancery court denied the motion on March 18, 2005. BJP could have, but did not, appeal from that order. On August 5, 2009, BJP filed another Motion to Dismiss and to Compel Arbitration, which was denied on December 6, 2009. BJP appealed. M.R.A.P. 4(a) requires that a notice of appeal be filed within thirty days of the date the judgment was entered. The chancellor correctly denied BJP’s second motion to compel arbitration because the issue already had been ruled upon on March 18, 2005, and no appeal was taken. Issue 2: Intentional interference with contract To survive Gulf Publishing’s motion for summary judgment, BJP had to show there were genuine issues of material fact on every element of its claim of intentional interference with contract against Gulf Publishing. The elements of intentional interference with contract are: that the acts were intentional and willful; that they were calculated to cause damage to the plaintiff in his/her lawful business; that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which acts constitute malice); and that actual damage or loss resulted, and the defendant’s acts were the proximate cause of the loss or damage suffered by the plaintiff. The letter from Gulf Publishing to Diamondhead presents a genuine issue of material fact on each of the first four elements of an interference-with-contract claim, leaving the fifth element, the question of proximate cause, determinative of whether BJP should survive the motion for summary judgment. Considering the evidence in the light most favorable to BJP, on June 5, 1997, Diamondhead was unhappy with BJP’s performance of several duties under the contract. That displeasure caused Diamondhead to notify BJP of its intent to terminate the contract, and, possibly on the same day, to contact Gulf Publishing as a candidate to take over as publisher. The next day, Gulf Publishing faxed its responsive June 6, 1997, letter to Diamondhead that acknowledged BJP as the current publisher, questioned BJP’s abilities to succeed in that role, and offered an incentive to Diamondhead to switch publishers from BJP to Gulf Publishing. On June 19, 1997, Diamondhead filed a complaint against BJP for breach of contract. In that complaint, Diamondhead asserted the vital need for publication of The Diamondhead News, and requested a preliminary injunction against BJP to permit Gulf Publishing immediately to assume publication. On July 2, 1997, a preliminary injunction was entered against BJP, and it is still in force today. While it is true that the preliminary injunction prevents BJP from performing its contract with Diamondhead, the June 6, 1997, letter shows a genuine issue of material fact as to whether Gulf Publishing proximately caused Diamondhead to sever its relationship with BJP by obtaining the preliminary injunction. Whether Gulf Publishing’s actions proximately caused BJP’s loss of the publishing contract presents a genuine issue of material fact.


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