Wilton Acquisitions Corp. v. First Methodist Church of Biloxi
| Docket Number: | 2010-CA-01457-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-03-2012 Opinion Author: Carlton, J. Holding: Dismissed |
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| Additional Case Information: |
Topic: Contract - M.R.C.P. 54(b) - M.R.A.P. 4 - Pending issue Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Maxwell, Russell and Fair, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 08-02-2010 Appealed from: Harrison County Chancery Court Judge: James Persons Disposition: GRANTED APPELLEE’S MOTION TO DISMISS THE CASE WITH PREJUDICE Case Number: A2402-08-455(1) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Wilton Acquisitions Corp. |
RONALD G. PERESICH
JOHANNA MALBROUGH MCMULLAN
RONALD GILES PERESICH JR. |
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| Appellee: | First Methodist Church of Biloxi, Mississippi | WILLIAM CORBAN GUNN | ||
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 - M.R.C.P. 54(b) - M.R.A.P. 4 - Pending issue |
| Summary of the Facts: | Wilton Corp., a California-based real-estate developer, signed a real-estate purchase agreement to buy real property in Biloxi owned by First Methodist Church of Biloxi. Wilton Corp. paid $300,000 in earnest money for the purchase of First Methodist’s property and buildings. The Agreement was contingent on certain warranties, and it included a due-diligence period until April 26, 2007, for Wilton Corp. to conduct any inspections of the property it felt were necessary. The Agreement stated that “if, during its Due Diligence Period, Wilton [Corp.] was not satisfied with its investigation, Wilton [Corp.] could terminate the Contract.” When an inspection revealed the presence of asbestos-containing materials on the property, Wilton Corp. alerted First Methodist on June 14, 2007, that it intended to exercise its right to terminate the Agreement. However, First Methodist refused to refund the $300,000 in earnest money due to the expiration of the due-diligence period. Wilton Corp. filed suit for specific performance of the Agreement, breach of contract, breach of the duty of good faith and fair dealing, promissory estoppel, misrepresentation, and equitable estoppel. The chancery court entered an agreed scheduling order, which set trial for September 9, 2009, and the order also included a deadline for the completion of discovery on or before July 24, 2009. First Methodist requested dates from Wilton Corp. to depose the owner, agent, employees, and Rule 30(b)(6) corporate representatives of Wilton Corp. Prior to the start of the depositions scheduled for July 13, 2009, counsel for Wilton Corp. informed First Methodist that none of the requested Wilton Corp. deponents would be able to attend the depositions. First Methodist filed a motion to amend the scheduling order and extend the deadlines for discovery and depositions until September 2, 2009, one week before the scheduled trial date. Wilton Corp. filed a motion to continue the trial and a motion to determine the deposition location, requesting the chancellor to require counsel for First Methodist to travel to California to conduct the depositions. The chancellor ultimately ordered the trial continued until October 21, 2009. The chancellor denied Wilton Corp.’s request that counsel for First Methodist travel to California. On the morning of October 19, 2009, counsel for Wilton Corp. contacted counsel for First Methodist, stating that his daughter was ill and that Wilton Corp.’s plane would not arrive in Gulfport, Mississippi, until 2:30 p.m. due to the deponents’ belief that the depositions were scheduled for October 20, 2009. First Methodist then filed a motion to dismiss and a motion for sanctions pursuant to Rule 37(b)(2)(c) and 37(c) based on Wilton Corp.’s discovery misconduct. The chancellor granted both First Methodist’s motion to dismiss and its motion for sanctions, and he dismissed Wilton Corp’s claims with prejudice. The chancellor certified his judgment as final under M.R.C.P. 54(b). Wilton Corp. appeals. |
| Summary of Opinion Analysis: | The chancellor dismissed Wilton’s Corp.’s claims with prejudice and reserved ruling on attorney’s fees after finding that Wilton Corp. had willfully failed to appear for certain depositions. The chancellor certified both his order of dismissal and the subsequent denial of Wilton Corp.’s motion for reconsideration as Rule 54(b) judgments. Despite the chancellor’s designation of his order as a Rule 54(b) judgment and despite the inclusion of the necessary wording required by Rule 54(b), the chancellor’s order was not a final, appealable order because it left First Methodist’s claim for attorney’s fees pending. Therefore, this case cannot properly be brought before the Court for appellate review under M.R.A.P. 4. Where an item of requested relief is not addressed by the purported final judgment and the omission is not obvious from a review of the record, remand of an omitted issue alone is the appropriate remedy. |
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