Alfonso v. Diamondhead Country Club and Prop. Owners Ass'n, Inc.
| Docket Number: | 2010-CA-00091-SCT Linked Case(s): 2010-CA-00091-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 05-10-2012 Opinion Author: Chandler, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Appeal of motion to compel arbitration - M.R.A.P. 4(a) - Intentional interference with contract 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: Motion to Compel Arbitration Nature of the Case: CIVIL - CONTRACT |
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| Trial Court: |
Date of Trial Judgment: 12-06-2009 Appealed from: Hancock County Chancery Court Judge: Edward C. Prisock Disposition: Denied motion to compel arbitration. Case Number: 97-0420 |
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| Consolidated: 2009-CA-01457-SCT Thomas R. Alfonso, III and Anne Alfonso d/b/a Bay Jourdan Publishing Company v. Gulf Publishing Co., Inc. and The Sun Herald; Hancock Chancery Court; LC Case #: 97-0420; Ruling Date: 07/28/2009; 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: | |||
| Appellant: | Thomas R. Alfonso, III and Anne Alfonso d/b/a Bay Jourdan Publishing Company |
DAVID NEIL MCCARTY |
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| Appellee: | Diamondhead Country Club and Property Owners Association, Inc. | WILLIAM V. WESTBROOK, III |
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| Topic: | Contract - Appeal of motion to compel arbitration - M.R.A.P. 4(a) - Intentional interference with contract |
| Summary of the Facts: | The motion for rehearing is denied, and this opinion is substituted for the original opinion. 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. 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 also found that an arbitration clause in the publishing contract was inapplicable to the lawsuit. 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 pursuant to M.R.C.P. 54(b). BJP appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion to compel 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. Here, the chancellor correctly denied BJP’s third 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. A 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. Gulf Publishing argues that Diamondhead’s June 5, 1997, termination letter to BJP, along with the July 2, 1997, preliminary injunction, made it impossible for Gulf Publishing to have interfered with the contract. Gulf Publishing argues that it was the entry of the preliminary injunction that prevented BJP from publishing the newspaper, not any action of Gulf Publishing. Considering the termination letter, Gulf Publishing’s June 6, 1997, letter, and the preliminary injunction in the light most favorable to BJP, there were genuine issues of material fact for trial. While Gulf Publishing argues that Diamondhead terminated the contract with the termination letter dated June 5, 1997, that letter – along with the evidence that BJP acted outside the scope of the contract – shows only that the status of the contract prior to the preliminary injunction was in dispute. Under the contract terms, no termination could occur until sixty days after written notice, provided BJP neither cured the breach, nor took sufficient steps to cure the breach. On June 6, 1997, Gulf Publishing stated in its letter to Diamondhead that “we are certain your current publisher was not in a profitable situation with this product based on the numbers we developed,” and offered to publish 5,000 free copies of the next month’s issue of The Diamondhead News. The June 6, 1997, letter from Gulf Publishing to Diamondhead is dated more than three weeks before the chancery court’s preliminary injunction order. That letter showed negotiations between Diamondhead and Gulf Publishing before the preliminary injunction at a time when the contract still was in force under its terms. Regardless of how Gulf Publishing became aware of BJP’s contract, the letter shows it knew that, as of June 6, 1997, the contract was still in force. 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. Thus, the chancery court erred by granting summary judgment in favor of Gulf Publishing. |
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