author: GRIFFIS, J.,

text:
    BRADDOCK LAW FIRM, PLLC, Appellant v. Daniel E. BECNEL, Jr., Michael T. Gallagher and Gallagher, Lewis, Downey & Kim, Appellees.
    No. 2004-CA-01237-COA.
    Court of Appeals of Mississippi.
    April 18, 2006.
    Rehearing Denied Aug. 22, 2006.

      C. Eric Malouf, Michael J. Malouf, Jr., Jackson, attorneys for appellant.
    Daniel E. Becnel, Jr. (pro se), attorney for appellees.
    Kevin P. Kilbert, Todd Brentley Ott, and Sheila M. Bossier, Jackson, attorneys for appellees.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Braddock Law Firm, PLLC, (“Braddock”) sued Daniel E. Becnel, Jr., Michael T. Gallagher, and his firm, Gallagher, Lewis, Downey and Kim, for breach of a fee splitting agreement. On the morning of trial, the chancellor granted summary judgment to Becnel. At the close of Braddock’s case-in-chief, the chancellor dismissed the Gallagher defendants. Braddock appeals, and he claims the chancellor erred by: (1) not allowing Braddock to amend its complaint, (2) by not granting Braddock’s motion for summary judgment, (3) by granting Becnel’s motion for summary judgment, and (4) by dismissing the case against the Gallagher defendants. We affirm in part and reverse and remand in part.

FACTS

¶ 2. Gallagher successfully tried a products liability case against Manufacturer. Because of this, Manufacturer offered to settle a limited number of Gallagher’s future cases for a certain dollar sum for each case. Although Gallagher practices law in Texas, he was associated with three Mississippi firms in other litigation. Those firms were Grenfell, Sledge and Stevens (“Grenfell, Sledge”), Schwartz and Associates (“Schwartz”), and Braddock. As a result of this prior association, Gallagher presented these Mississippi firms with this “window of opportunity” to accept Manufacturer’s offer and settle their clients’ cases, with Gallagher receiving a portion of the settlement proceeds.

¶ 3. According to Braddock, Gallagher agreed to split the fee forty percent to Gallagher, Grenfell, Sledge and Schwartz and sixty percent to Braddock on any of Braddock’s clients. Braddock claimed that this was an oral contract, which was memorialized in writing a few months later. Braddock also testified this agreement was similar to other referral agreements his firm had with Gallagher in the past, all of which were oral. Gallagher testified that his referral agreements with other attorneys were always oral. However, Gallagher denies having this particular agreement.

¶ 4. Braddock contacted Bobby Gill and Richard Martin of the Eaves Law Firm. Braddock relayed this “window of opportunity” to them, and they agreed to split Braddock’s referral fee among themselves, with three percent to Braddock and fifty-seven percent to Gill and Martin on any of Gill and Martin’s clients.

¶5. Martin contacted Becnel with this offer. They agreed to split Gill and Martin’s share of the referral fee, fourteen and a half percent to Gill and Martin and forty-two and a half percent to Becnel, on any of Becnel’s clients. Becnel recognized that the Manufacturer’s offer to Gallagher was more than three times the offer Becnel was able to secure from the Manufacturer for a majority of his clients. He accepted Gill and Martin’s offer.

¶ 6. Subsequently, in breach of his agreement with Gill and Martin, Becnel personally met with counsel for the Manufacturer in order to get his cases settled on his own. Counsel for the Manufacturer would not settle with Becnel directly and told him that Gallagher was the only attorney with whom the Manufacturer was settling cases with at that time.

¶ 7. On June 21, 2001, Becnel met in New Orleans with Gallagher and Tim Goss, who worked with Gallagher. Just before the meeting, Gallagher had his secretary, in Houston, send a fax to Braddock to inform him that it looked like Becnel was going to pull his cases out of their settlement group. Becnel told Gallagher that members of Gallagher’s Mississippi association “bad mouthed” Gallagher, and this made Gallagher angry. When Becnel talked about possibly firing the Mississippi association, Gallagher did not talk him out of it.

¶ 8. The next day, at 11:19 a.m., Gallagher faxed Braddock a letter that stated, “[w]e have all been fired by Danny Bec-nel.” Nevertheless, Gallagher continued to work on Becnel’s cases. In fact, a mere two hours later, immediately after lunch, Gallagher faxed a letter to Becnel to discuss obtaining proof on several of the clients.

¶ 9. There were two draft referral agreements between Gallagher and Becnel on Becnel’s cases. The drafts called for a fee split of forty percent to Gallagher and sixty percent to Becnel. These drafts were dated June 22 and June 25, 2001, and both were typed by “ILY.” On June 25, Becnel’s office faxed a letter to Gallagher and Goss that confirmed the agreement reached June 21. It stated that Gallagher would continue to work on the cases, and “[w]e agreed on Thursday [June 21] that you would receive 40% of the fee in these cases, and we would retain 60% of same.” While the fax was addressed to Gallagher and Goss, it was only addressed and faxed to Gallagher’s office. In fact, all communications on the remaining cases were solely between Gallagher’s and Becnel’s offices.

¶ 10. Gallagher expressed concern that he might not be able to contract with Becnel. In the end, the contract was signed between Goss and Becnel on July 6. The contract was virtually identical to the June 25 draft Gallagher had prepared, and it was typed by “ILY” as well. However, the words “Mike Gallagher” were substituted with “Tim Goss.” The record indicates that Gallagher emailed the June 25 draft to Goss, so Goss could print the contract out on his own firm’s letterhead. We note that “Via Facsimile 504.536.6445” appears at the same place on both contracts, but because the rest of Becnel’s address would run into preprinted information on Goss’s letterhead, the rest of the contract is set further down on the page.

¶ 11. The settlement and payment of fees occurred soon after the New Orleans meeting. When Goss received the attorney’s fees, he forwarded forty percent to Gallagher and sixty percent to Becnel. It was not until later, that Gallagher paid six percent of the fees to Goss.

¶ 12. During the same week, Gallagher drafted a complaint for declaratory judgment action, wherein Becnel sued Gallagher, Braddock, and the other Mississippi firms in federal court in Louisiana. The action sought to determine who had an interest in the fees that had been received. Gallagher never answered the complaint. The lawsuit was dismissed by the federal court for lack of subject matter jurisdiction.

¶ 13. Gill and Martin commenced a lawsuit against Becnel in Hinds County Chancery Court for intentional breach of contract. Braddock, Grenfell, Sledge, Schwartz, and Robert Arledge intervened. Gallagher settled with Grenfell, Sledge, Schwartz and Arledge. Braddock then added the Gallagher defendants as parties.

¶ 14. The chancellor granted partial summary judgment against Becnel in favor of Gill and Martin. The chancellor found that Becnel owed Gill and Martin fourteen and a half percent of the attorney fees on a majority of the cases. Thus, Braddock claimed that he was due three percent in attorney fees for breach of the sixty percent referral agreement.

¶ 15. All parties agree that Becnel has in his possession fees that total three percent more than what he is owed. No other party claims this three percent except for Braddock. Becnel claims, for ethical reasons, he should be allowed to retain this three percent.

ANALYSIS

I. Should the chancellor have allowed Braddock to amend its complaint to allege civil conspiracy?

¶ 16. Braddock’s first issue is that the chancellor committed reversible error when he denied Braddock’s motion to amend the complaint to include a count of civil conspiracy. Specifically, Braddock claims that the chancellor was presented with evidence that supported the cause of action, that the new cause of action merely clarified the claims asserted in his initial complaint, and that the chancellor failed to make findings of fact or give valid reasons for denial. The defendants argue the amendment would have caused undue delay and was futile.

¶ 17. A chancellor’s decision whether to allow an amendment to a pleading will be reviewed for an abuse of discretion. Church v. Massey, 697 So.2d 407, 412-13 (Miss.1997). When a party moves to amend the complaint, “leave shall be freely given when justice so requires.” M.R.C.P. 15(a). The supreme court has cautioned:

[Tjhis mandate is to be heeded ... if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject for relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice ... futility ..., etc. — the leave sought should, as the rules require, be ‘freely given.’ ... [Ojutright refusal to grant the leave without any justifying reason ... is ... abuse of ... discretion.

Red Enters., Inc. v. Peashooter, Inc., 455 So.2d 793, 795 (Miss.1984) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).

¶ 18. Braddock’s original complaint, filed May 9, 2003, alleged that Braddock had a referral fee agreement with Gallagher, that Becnel had a referral fee agreement with Gill and Martin, and that Gallagher and Becnel breached their respective agreements. As a consequence, Becnel had in his possession attorney fees that belonged to Braddock because of his agreement with Gill and Martin. Braddock prayed for an accounting and equitable relief.

¶ 19. On December 5, 2003, Braddock filed a motion to amend his complaint to add a claim for civil conspiracy to breach contracts. The trial did not occur for another five months. Braddock alleged it discovered, during depositions, the New Orleans meeting where Gallagher and Bec-nel discussed firing the Mississippi attorneys but keeping Gallagher on the eases, and that they then contracted to this effect. Braddock alleged that this agreement was despite the representation from Gallagher that he too had been fired by Becnel, and despite the representation from each defendant that he was unaware of the other’s existing contracts. Braddock also alleged that Gallagher drafted Becnel’s lawsuit against Braddock and Gallagher himself in furtherance of this conspiracy. Braddock requested the amendment in order to solidify its case against Becnel, since there was no direct agreement or contractual relationship between Braddock and Becnel.

¶ 20. Braddock’s amendment adequately pled a claim for civil conspiracy. A conspiracy is an agreement between two or more persons for the purpose of accomplishing an unlawful purpose or a lawful purpose unlawfully. Gallagher Bassett Servs., Inc. v. Jeffcoat, 887 So.2d 777, 786(¶ 37) (Miss.2004). Where damages arise as a result, there may be a right of recovery for civil conspiracy. Id. Braddock pled that Becnel and Gallagher agreed to obtain all the attorney fees for themselves by breaching their respective contracts. The pleading also indicates Gallagher may have also been breaching fiduciary duties, and Becnel may have been intentionally interfering with contract. As damages, Braddock claimed that he lost three percent of the attorney fees.

¶21. Nevertheless, the chancellor denied the motion and stated that Braddock did not need the amendment. The chancellor reasoned that the Gallagher defendants had plenty of money to pay the judgment, and that this was not a jury trial.

¶22. The morning of the trial, the chancellor granted Becnel’s motion for summary judgment. When Braddock later moved for a Rule 15(b) amendment to conform to thé evidence at trial, the chancellor denied the motion.

¶ 23. We find that the chancellor abused his discretion in denying Braddock’s motion to amend the complaint to include a count of civil conspiracy. The reasons given by the chancellor are not valid reasons to refuse an amendment. Therefore, the chancellor’s conduct amounts to “outright refusal without any justifying reason.” This, the supreme court has ruled, is an abuse of discretion. Moeller v. Am. Guarantee & Liab. Ins. Co., 812 So.2d 953, 962(1130) (Miss.2002); Red Enterprises, 455 So.2d at 795.

¶ 24. The defendants, nevertheless, urge that the amendment was futile and prejudicial. They claim it was futile because Braddock was not going to be able to prove a contract between Gallagher and Becnel. First, we note that there was evidence of a contract between Gallagher and Becnel. This evidence was what prompted Braddock to file the motion to amend. Second, futility of amendment occurs when there is either a statute of limitations problem or the amendment itself fails to state a cause of action. Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir.2000). See also Knotts ex rel. Knotts v. Hassell, 659 So.2d 886, 889 (Miss.1995); Jones v. Lovett, 755 So.2d 1243, 1247-48(¶ 8) (Miss.Ct.App.2000) (overruled on other grounds). We find no case, and the defendants point to none, where futility was found from the mere fact that the defendant denied the allegation or otherwise pled a defense. The purpose of Rule 15 is that cases are to be tried on their merits. M.R.C.P. 15 cmt.; Red Enterprises, 455 So.2d at 795. A Rule 15 motion is not an invitation to try the merits of the case. That is reserved for trial.

¶ 25. The defendants claim that the amendment was prejudicial, because conspiracy to breach contracts is a separate, unrelated claim to breach of contract. The fact that an amendment raises a new, unrelated cause of action or is based on a different set of facts is immaterial. CEF Enters., Inc. v. Betts, 838 So.2d 999, 1005(¶ 27) (Miss.Ct.App.2003).

¶ 26. During oral arguments, Becnel posed another theory of prejudice that he would need to conduct discovery on civil conspiracy. Becnel stated he would need to take the Manufacturer’s counsel’s deposition to find out what happened in the June 19 meeting between the Manufacturer’s counsel and Becnel. Becnel was at the meeting. He knows what happened. Moreover, he admits that the meeting took place and that the Manufacturer’s counsel directed him to take his cases to Gallagher for settlement. Becnel also suggested he would need to take Goss’s deposition in order to find out what happened at the New Orleans meeting between Becnel, Goss and Gallagher. Again, Becnel cannot argue he needs to discover what happened at a meeting he admits that he attended. Braddock may be entitled to such discovery.

¶ 27. We find merit to this issue. Accordingly, we reverse and remand for further proceedings on Braddock’s civil conspiracy claim.

II. Should the chancellor have granted Braddock summary judgment?

¶ 28. Braddock claims that the chancellor should have deemed its itemization of facts admitted by the defendants. Therefore, the chancellor should have granted Braddock’s summary judgment. In the alternative, Braddock claims entitlement to partial summary judgment on its constructive trust claim. The defendants argue that the chancellor was not required to deem admitted the itemization of facts. Becnel further argues that Braddock never alleged a claim for constructive trust. The Gallagher defendants assert that Braddock admitted that whether or not a contract existed between them and Braddock was a triable issue.

A. Should the chancellor have deemed Braddock’s itemization of facts admitted?

¶ 29. “Movants for summary judgment shall file with the clerk as a part of the motion an itemization of the facts relied upon and not genuinely disputed and the respondent shall indicate either agreement or specific reasons for disagreement that such facts are undisputed and material.” URCCC 4.08(2). “A court can impose an appropriate sanction for the failure to comply with the obligation to itemize the uncontested facts or to respond to the other side’s itemization.” Estate of Jackson v. Miss. Life Ins. Co., 755 So.2d 15, 22(¶29) (Miss.Ct.App.1999). “Nonetheless, the most severe penalty would be to take the facts ... as admitted.” Id. at 23 (¶ 30).

¶ 30. In Estate of Jackson, the defendant moved for summary judgment. Id. at 18(¶ 10). Plaintiffs failed to respond specifically to its itemization of facts, only cursorily responded to the motion itself, and failed to appear at the summary judgment hearing. Id. at 18 — 19(1110). The court noted that the purpose of Rule 4.03(2) is “for ‘laying out the material facts in dispute clearly for a ... court that is swamped with an overwhelming number of civil and criminal dispositive motions.’ ” Id. at 22(¶ 28) (quoting Dominguez v. Eli Lilly & Co., 958 F.Supp. 721, 727 (D.P.R. 1997)). The rule also avoids “the recurrent problem of ferreting through the record” and “the specter of ... judges being unfairly sandbagged by unadvertised factual issues.” Id. (quoting Stepanischen v. Merchs. Despatch Transp. Corp., 722 F.2d 922, 931 (1st Cir.1983)). The Jackson court found that the defendant’s itemization of facts was all consistent with the Jacksons’ assertions. Estate of Jackson, 755 So.2d at 23(¶ 31). The court further found that the trial court did examine the evidence, and “it was obvious to the trial court” that there was a genuine dispute of material fact. Id. Therefore, the court found no “anti-ferreting” problem and held the Jacksons “made no procedural waiver of the contested facts.” Id. at 23(¶¶ 31-33).

¶ 31. We find this case dispositive on this issue. First, it shows that it is not mandatory for a judge to deem an itemization of facts admitted, when the itemization is not responded to pursuant to Rule 4.03(2). Second, we find no anti-ferreting problem here. The defendants, although not technically responding to Braddock’s itemization of facts, did respond to its Motion for Partial Summary Judgment. It was apparent there were genuine disputes of material facts. Braddock claimed that Gallagher, through his partner Goss, breached the contract by forwarding the sixty percent attorney fees to Becnel. The defendants claim that Goss was not Gallagher’s partner, and therefore, Gallagher cannot be said to have breached his contract with Braddock through Goss’s actions. Moreover, Tal-madge Braddock admitted that whether or not a contract even existed between Gallagher and his firm was a triable fact. The dispute of facts were set out clearly before the trial judge. On these facts, we find Defendants did not waive their right to dispute the facts in this case. We affirm the chancellor’s decision not to deem these facts admitted.

B. Should the chancellor have granted partial summary judgment on constructive trust?

¶ 32. This Court employs a de novo standard of review of a chancellor’s grant or denial of summary judgment and examines all the evidentiary matters before it— admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002) (citations omitted). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. at 1177(¶ 9). If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his or her favor. Id. Issues of fact sufficient to require reversal of a summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. Id.

¶33. Braddock conceded at the hearing that it would have to prove the existence of a contract between Braddock and Gallagher, in order to prevail upon its constructive trust claim against Becnel. Braddock admitted that whether there was such a contract was a triable issue. Because Braddock conceded there was a genuine issue of material fact, we affirm the chancellor’s denial of Braddock’s motion for summary judgment.

III. Did the chancellor err in granting Becnel summary judgment?

¶ 34. Braddock complains that the chancellor erred in granting Becnel’s second motion for summary judgment because there were viable claims, and the judge should have let it prove its civil conspiracy claim. Becnel does not argue that the three percent does not belong to Braddock. He says only that the referral agreement was unethical, so he should be allowed to keep Braddock’s share, and this Court should grant summary judgment on that basis. The chancellor, however, granted summary judgment on the basis that Braddock could prove no relationship directly with Becnel. The chancellor reasoned that Becnel may be liable to someone for the three percent fee, but it was not Braddock. The chancellor ruled that Braddock’s only cause of action could be against the Gallagher defendants.

A Declaratory action, accounting, and breach of contract

¶ 35. Although Braddock alleges that its claims for declaratory action, accounting, and breach of contract should have survived Becnel’s motion for summary judgment, it offers no authority or argument as to why those claims should survive. This Court has repeatedly held that “[f]ailure to cite relevant authority obviates the appellate court’s obligation to review such issues.” Simmons v. State, 805 So.2d 452, 487(¶ 90) (Miss.2001) (citing Williams v. State, 708 So.2d 1358, 1362-63(¶ 11) (Miss.1998)). Additionally, the record shows that Braddock conceded that after it filed the action, the defendants did comply with an accounting. Accordingly, we affirm the summary judgment in favor of Becnel as to declaratory action, accounting and breach of contract.

B. Constructive trust

¶ 36. Constructive trust is a means by which one who unfairly holds a property interest may be compelled to convey that interest to another to whom it justly belongs. In re Estate of Horrigan, 757 So.2d 165, 170(¶25) (Miss.1999). “Such a trust arises by implication from the relationship and conduct of the parties and may be established by parol testimony notwithstanding the statute of frauds.” Id. “It is the relationship plus the abuse of confidence that authorizes a court of equity to construct a trust for the benefit of the party whose confidence has been abused.” Thornhill v. Thornhill, 905 So.2d 747, 753(¶18) (Miss.Ct.App.2004) (quoting Davidson v. Davidson, 667 So.2d 616, 620 (Miss.1995)). A constructive trust:

arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, to hold and enjoy.

Sojourner v. Sojourner, 247 Miss. 342, 353, 153 So.2d 803, 807 (Miss.1963) (quoting 54 Am.Jur. Trusts, § 218). “An abuse of confidence within the rule may be an abuse of either a technical fiduciary relationship or of an informal relationship where one person trusts in and relies upon another, whether the relation is a moral, social, domestic, or merely personal one.” Id. at 354, 153 So.2d at 807-08. “A confidential relationship within the rule need involve neither a promise for the benefit of another nor an express fiduciary relationship.” Id., 153 So.2d at 808.

¶ 37. It is undisputed that Becnel has obtained three percent more in attorney fees than he is entitled. Becnel does not dispute that Braddock contracted with Gill and Martin in order to obtain this three percent. The chancellor held that Becnel breached his contract with Gill and Martin, and in doing so, obtained this additional three percent. This is a final judgment which is res judicata on Becnel. Therefore, the undisputed evidence shows that Becnel unfairly holds title to Braddock’s property.

¶ 38. However, our inquiry does not end there. We note that Braddock does not allege that there is a confidential relationship between he and Becnel. A confidential relationship is a necessary element of constructive trust. He does not allege any relationship, formal or informal, in which he reposed trust in Becnel. The record reveals the only relationship between the two is a chain of contracts. Becnel contracted with Gill and Martin to settle his clients’ cases with Manufacturer. Braddock contracted with Gill and Martin to place these same clients in Gallagher’s settlement with Manufacturer. Viewing the evidence in the light most favorable to Braddock, all we can say is Becnel has Braddock’s three percent attorney fee, but we cannot say that he obtained that fee by abusing a confidential relationship with Braddock. We affirm the chancellor’s granting of summary judgment on constructive trust to Becnel.

TV. Did the chancellor err in dismissing the Gallagher defendants ?

¶ 39. Braddock’s final issue is that the chancellor erred in dismissing the Gallagher defendants after its case-in-chief, by finding Braddock failed to prove a contract between it and the Gallagher defendants. Specifically, Braddock argues there was an oral agreement between it and Gallagher and a written agreement between Braddock and Gallagher’s co-joint venturers. The Gallagher defendants argue Braddock was unable to produce documentary evidence or other witnesses that such a contract existed. They further argue that Mr. Braddock’s testimony was not credible. They finally state that Goss contracted with Becnel on the cases, even though, by their own admission, Goss forwarded 100% of the attorney fees to Gallagher and Bec-nel.

¶ 40. In considering a motion for involuntary dismissal under Rule 41(b), the chancellor should consider “the evidence fairly, as distinguished from in the light most favorable to the plaintiff,” and the judge should dismiss the case if it would find for the defendant. Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992). We must apply the substantial evidence/manifest error standard to an appeal of a grant or denial of a motion to dismiss pursuant to M.R.C.P. 41(b). Id. Where there arguably is evidence that a party might be entitled to a judgment, the court errs in dismissing the case. Aronson v. Univ. of Miss., 828 So.2d 752, 756(¶ 14) (Miss.2002). We defer to findings of fact and review legal conclusions de novo. Id. at 755(¶ 12).

¶ 41. The chancellor ruled that the evidence boiled down to Mr. Braddock saying there was an agreement and Gallagher saying there was not. Because there was “nobody to support either one of them,” the chancellor held it had no choice but to dismiss the breach of contract claim against the Gallagher defendants.

A. Was there a direct agreement between Braddock and Gallagher?

¶ 42. Mr. Braddock testified that he and Gallagher had an oral agreement on the subject cases, wherein Braddock would receive sixty percent of the fees, and Gallagher would retain forty percent. Pursuant to this agreement, Gallagher was to receive the settlement money from Manufacturer, retain forty percent attorney fees, and forward the sixty percent to Braddock. He produced documents wherein he and Gallagher mutually worked on the cases. Braddock presented a written contract wherein Grenfell, Sledge and Schwartz would pay him sixty percent attorney fees and retain forty percent fees on the subject cases. This contract was signed by Richard Schwartz and Arledge, with a blank signatory line for Grenfell, Sledge. There was no signatory line for Gallagher.

¶ 43. Braddock called Gallagher in its case-in-chief. Gallagher testified that Braddock was his only contact on these particular cases, and Braddock helped in getting the proof necessary on the cases. Gallagher admitted he always had oral referral agreements and had done so with Braddock in the past. Gallagher admitted that no attorney would hand over cases to another without a referral fee agreement. However, he denied ever having this particular agreement with Braddock. He claimed that it was Schwartz and possibly Grenfell, Sledge that made this agreement with Braddock, and Gallagher was to receive one-third of the forty percent from Grenfell, Sledge and Schwartz. He also testified that Grenfell, Sledge and Schwartz had made agreements with Braddock in the past, wherein Braddock would share in their portion of the attorney fees on cases it worked on.

¶ 44. In sum, Braddock testified there was an oral contract and presented evidence of course of dealing and course of performance between it and Gallagher to support its contract claim. Considering the evidence fairly, Braddock satisfied its claim that it was entitled to a sixty percent share in the fees from Gallagher pursuant to an oral agreement.

B. Is Gallagher bound by the written agreement between Braddock, Grenfell, Sledge and Schwartz?

¶ 45. In the alternative, Braddock claimed there was evidence that Grenfell, Sledge and Schwartz were joint venturers with Gallagher in the settlement with Manufacturer, and as such, Gallagher is bound by the referral agreement signed by Mr. Schwartz and Arledge.

¶ 46. A joint venture is a single purpose partnership. Duggins v. Guardianship of Washington ex rel. Huntley, 632 So.2d 420, 427 (Miss.1993). As such, it is subject to the Uniform Partnership Act (UPA). Id. Where a joint venture exists, its members are bound by the acts of the other members acting in the course and scope of the joint venture. Id. See also Miss.Code Ann. § 79-12-17 (Rev. 2001). The UPA provides rules for determining whether a partnership exists:

(1) Except as provided by Section 79-12-31 persons who are not partners as to each other are not partners as to third persons.
(3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.
(4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment:
(a) As a debt by installments or otherwise,
(b) As wages of an employee or rent to a landlord,
(c) As an annuity to a widow or representative of a deceased partner,
(d) As interest on a loan, though the amount of payment varies with the profits of the business,
(e) As a consideration for the sale of the goodwill of a business or other property by installments or otherwise ....

Miss.Code Ann. § 79-12-13 (Rev.2001). The common law is still used to supplement the UPA. Smith v. Redd, 593 So.2d 989, 993 (Miss.1991). According to common law, the three main factors of partnership are (1) intent, (2) control, and (3) profit sharing. Id. at 994. Naturally, these factors apply to determining joint ventures as well. Duggins, 632 So.2d at 428.

1. Intent

¶ 47. Intent must be established by the proof. Smith, 593 So.2d at 994. The evidence of intent to form a joint venture is Braddock’s testimony that Gallagher, Grenfell, Sledge and Schwartz were joint venturers, and Gallagher’s admission that they were joint venturers in prior rounds of settlements with Manufacturer over liability for the exact same product. Evidence also existed that Gallagher and Bec-nel maintained that Gallagher was unsure as to whether he could be a contracting party with Becnel, after Becnel fired the Mississippi attorneys, including Grenfell, Sledge and Schwartz. This evidence is probative of the fact that Gallagher was breaching fiduciary duties by contracting solely with Becnel, without including Gren-fell, Sledge and Schwartz. Indeed Gallagher concedes, as he must, that fiduciary duties are owed to fellow joint venturers. Gallagher maintained that the prior joint ventures in Phases I and II settlements with Manufacturer had since ceased, and he specifically denied any such intent in this particular case. Nevertheless, he admitted to being bound by the seven percent administrative contract between Braddock and Grenfell, Sledge and Schwartz in the instant round of settlement.

2. Control

¶ 48. There was evidence that Gallagher, Grenfell, Sledge, and Schwartz had joint control over these particular cases. Gallagher was the one negotiating with Manufacturer and handling the problems directly with Braddock. Grenfell, Sledge and Schwartz had a contract with Braddock to handle the administrative work on all the cases in exchange for seven percent of their attorney fees. Gallagher likewise paid Goss six percent of his fee to handle administrative work on Gallagher’s end. The evidence showed that Grenfell, Sledge collected the cases from Braddock and delivered them to Gallagher. On at least one occasion, Gallagher jointly corresponded with Braddock and Grenfell, Sledge on the cases. Gallagher’s June 21, 2001 letter stated, “[i]t looks like these cases are going to be pulled from our settlement.”

3. Profit Sharing

¶49. Profit sharing is the most important factor in the partnership analysis. Century 21 Deep S. Props., Ltd. v. Keys, 652 So.2d 707, 715 (Miss.1995). It is the essential element in a partnership. Smith, 593 So.2d at 994. The UPA distinguishes between sharing in the profits and sharing in gross receipts. Miss.Code Ann. § 79-12-13 (Rev.2001). “The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.” Miss.Code Ann. § 79-12-13(3) (Rev.2001). “The receipt by a person of a share of the profits is prima facie evidence that he is a partner.... ” Miss.Code Ann. § 79-12-13(4) (Rev.2001) (emphasis added). Profit is gross return minus expenses.

¶ 50. Braddock and Gallagher testified that Gallagher split the forty percent fee in this case, one-third to Gallagher, one-third to Grenfell, Sledge and one-third to Schwartz. The transmittal letters wherein Gallagher mailed the shares to Grenfell, Sledge and Schwartz were also entered in evidence. Gallagher testified that he was to pay Goss six percent out of his share for administrative work done on the settlement. In past ventures, Gallagher, Gren-fell, Sledge and Schwartz all contributed equally to this six percent fee. Gallagher also testified that Grenfell, Sledge and Schwartz paid Braddock seven percent out of their respective shares for like work. The reason Grenfell, Sledge and Schwartz no longer wanted to share in paying the Goss expense was because they were responsible for paying the Braddock expense. Again, Gallagher admits that this seven percent contract binds him, and he points to Grenfell, Sledge and Schwartz’s satisfaction of that contract as likewise absolving him. Thus the undisputed evidence was that Gallagher, Grenfell, Sledge and Schwartz shared in the profits in the subject cases. This proof alone was sufficient for Braddock to prove its prima facie case of a joint venture to settle the cases with Manufacturer. Since Braddock offered proof as to all three factors, he more than satisfied his claim that Gallagher, Grenfell, Sledge and Schwartz were joint venturers in the Phase III round of settlement with Manufacturer.

¶ 51. Where a joint venture exists, its members are bound by the acts of the other members acting in the course and scope of the joint venture. Duggins, 632 So.2d at 427. See also Miss.Code Ann. § 79-12-17 (Rev.2001). The evidence showed that Schwartz entered the sixty — • forty fee split agreement with Braddock in furtherance of its joint venture with Gallagher to settle cases with Manufacturer. Gallagher therefore is bound by the agreement entered on his behalf.

¶ 52. The evidence also showed that Gallagher breached this agreement when he did not talk Becnel out of firing the Mississippi attorneys and then entered an agreement with Becnel on the cases through Goss. The evidence showed that Gallagher drafted two agreements with Becnel. However, because he was concerned that he could not contract with Becnel on the cases, Gallagher had Goss do so. Goss then forward one hundred percent of the attorney fees away-sixty percent to Becnel and forty percent to Gallagher.

¶ 53. Braddock thus satisfied his burden of proof for breach of contract. We reverse the dismissal of the Gallagher defendants. By raising a Rule 41(b) motion to dismiss, a defendant does not waive its right to put on its case-in-chief, should the motion be denied. M.R.C.P. 41(b). Therefore, the proper remedy is to remand the case so the trial may continue, and the Gallagher defendants may have the opportunity to present their defense. Aronson, 828 So.2d at 756(¶ 14).

CONCLUSION

¶ 54. For the reasons set forth above, we affirm in part and reverse and remand in part. This case is remanded for further proceedings consistent with this opinion.

¶ 55. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS HEREBY AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.

      . Because this case involves the settlement of cases, the Court has granted the parties' request to enforce the confidentiality agreement between the clients, attorneys, and defendant manufacturer. Pursuant to the agreement, the names of the clients and the defendant manufacturer and the terms of settlement will remain confidential.

      . Arledge was a member of Schwartz, who sued in his individual capacity.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    McBRIDE CONSULTING SERVICE, LLC, Stuart McBride and Cindy K. McBride, Appellants v. WASTE MANAGEMENT OF MISSISSIPPI, INC. and Waste Management, Inc., Appellees.
    No. 2003-CA-02805-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Rehearing Denied Nov. 14, 2006.

      J. Douglas Minor, J. Brad Pigott, Jackson, for Appellants.
    Robert Eric Pfeffer, Fred L. Banks, E. Clifton Hodge, Luther T. Munford, James W. Shelson, Jackson, for Appellees.
    Before KING, C.J., IRVING and BARNES, JJ.
   KING, C.J.,

for the Court.

¶ 1. At the close of plaintiffs’ case-in-chief, the trial court granted the motions of the defendants for a directed verdict. Aggrieved by this action, and the trial court’s pretrial dismissal of the individual claims of Cindy McBride, the McBrides have appealed and raised the following issues, which we state verbatim:

1. Liability for either of the “Intentional Interference” Torts turns entirely on the inherently factual issue of a defendant’s intent to cause harm;
2. The Plaintiffs offered at trial substantial direct and circumstantial evidence that the Defendants authorized sales executive acted to “take away” the Plaintiffs’ clients and to “go after” the Plaintiffs with “whatever it takes” and otherwise with an intent to cause the plaintiffs harm;
3. The trial court committed error by forbidding a jury from considering evidence of the intent of the defendants’ executive toward the plaintiffs;
4. The trial court committed error in ruling that liability for intentional interference with contractual relations requires that the defendant’s conduct caused a breach (as opposed to at will termination) of the plaintiffs contracts with a third party;
5. The trial court committed error in excluding testimony about a conversation between two Waste Management executives admitting that Waste Management’s actions toward the McBrides had “A potential for blowing up on us” in court;
6. The trial court committed error in excluding testimony about the timing of David Myhan’s profane statements about his intentions to “get” Stuart McBride and to “take his work no matter what I have to do”;
7. The trial court committed error in granting partial summary judgement against Cindy McBride as to her individual claims.

Finding no error, we affirm.

FACTS

¶ 2. The McBrides had worked for many years in the waste disposal industry. In the mid-1990s, they used that experience to establish McBride Consulting Service, L.L.C. McBride Consulting is a waste broker. As a waste broker, McBride enters at will contracts with small businesses to serve as their exclusive agent for the negotiation of waste disposal contracts. McBride then negotiates with a third party waste disposal company a collective price for the waste disposal of its clients, and serves as paying agent for its clients. McBride makes its money from the cost savings obtained for its clients by this collective negotiation.

¶ 3. Waste Management is a third party waste disposer with whom McBride negotiated waste disposal for its clients. The collective price obtained from Waste Management by McBride was generally lower than which was then available to the individual businesses. However, because McBride did let its bids based upon volume, the cost to an individual client of McBride may or may not have been lessened.

¶4. McBride worked aggressively to grow its business. This included making contacts with businesses for whom Waste Management was already the contracted waste disposer. When McBride was employed to serve as the broker for a business, it gave the client a form letter to send to Waste Management. This letter directed that contract discussions be conducted through McBride, and also stated that where allowed, notice of the termination of the existing contract was being given. With the termination or expiration of these contracts, McBride would put them out for bid.

¶ 5. Recognizing that waste brokers were a growing group, Waste Management adopted a national policy which required that (1) the rates to be charged to waste brokers be established by the regional office, (2) these rates be in upper tiers of the rate scales, and (3) the waste brokers sign a standard contract. The policy mandated that if a broker declined to execute the standard contract, then Waste Management would not do business with him. McBride refused to execute the standard contract, indicating that it routinely disposed of them without a through reading.

¶ 6. At some point in the process, Waste Management became concerned that its relationship with McBride was less than satisfactory. Among the concerns expressed by Waste Management were(l) the refusal of McBride to sign the standard contract and (2) its perception that McBride was tardy in the payment of the invoices sent to it. To address these concerns, Waste Management undertook a series of aggressive actions, including offering to individual businesses lower prices than those prices which it was willing to give to McBride. Waste Management made clear that these lower rates were only available to customers who dealt directly with it. As a result of the lower rates offered directly by Waste Management, a number of McBride’s clients chose to contract directly with Waste Management rather than have their needs brokered by McBride.

¶ 7. McBride filed suit against Waste Management for (1) intentional interference with a contractual relations and (2) intentional interference with business relationships. At the conclusion of McBride’s case-in-chief, the trial court, finding insufficient evidence to submit the matter to the jury, entered judgment for the defendants.

¶ 8. The trial court found that McBride had proven an interference with its business by Waste Management. However, it held that interference to have been privileged rather than tortious. The trial court found that the interference was at least in part motivated by business competition, and therefore McBride had failed to establish that it was done for an unlawful or improper reason.

¶ 9. Cindy McBride had also included a personal claim for emotional distress, which the trial court dismissed prior to trial. The trial court indicated that any claims which Cindy McBride had fell within the scope of the corporate claims and could not be pursued by her individually.

DISCUSSION OF THE ISSUES

Directed Verdict

¶ 10. This Court reviews de novo the granting of a directed verdict. In doing so, we consider the evidence in the light most favorable to the party against whom the directed verdict has been granted. Partain v. Sta-Home Health Agency of Jackson, Inc., 904 So.2d 1112, 1116(¶ 7) (Miss.Ct.App.2004). We may only sustain the granting of a directed verdict where the evidence as a matter of law is insufficient to establish even a prima facie right of recovery. Id.

¶ 11. Tortious interference with contract occurs when one causes another to breach a contract with a third person. Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 48(¶8) (Miss.1998). Tortious interference with business relations, on the other hand, occurs when one unlawfully diverts prospective customers away from another’s business. Id. at (¶ 10). With both torts, the plaintiff must prove (1) the offending acts were intentional and willful, (2) the acts were calculated to cause damage to the plaintiffs in their lawful business, (3) the acts were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice), and (4) actual damage and loss resulted. Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel & Cocke, P.A., 910 So.2d 1093, 1098(¶23) (Miss. 2005); MBF Corp. v. Century Business Communications, Inc., 663 So.2d 595, 598 (Miss.1995). Additionally, in the case of tortious interference with business relations, in order to establish a prima facie case for damages, the plaintiff must prove (1) that his business experienced a loss, and (2) that the defendant was the cause of that loss. Par Industries, 708 So.2d 44 at 48(¶ 10).

¶ 12. Since a directed verdict is appropriate where an essential element of the plaintiffs cause is lacking, we will focus on whether Waste Management’s actions were done with the unlawful purpose of causing damage and loss, without right or justifiable cause. The McBride evidence, if accepted by the finder of fact, established that the aggressive marketing by Waste Management offering substantially lower rates, including at or below cost, to prospective customers, had a direct financial impact upon the earnings potential of McBride. However, several Mississippi cases that discuss the closely intertwined torts have considered whether the defendant displayed “bad acts exceeding the realm of legitimate competition” and whether the defendant’s acts were committed without legal or social justification. MBF Corp., 663 So.2d at 599; Par Industries, 708 So.2d at 48.

¶ 13. The aggressive marketing of a company’s products or services, of necessity, is intended to impact the business of competitors by the increase in its market share and the decrease in the earnings potential of those others operating in the same sphere. Such actions in and of themselves are lawful, and without more, do not give rise to a cause of action.

¶ 14. The primary indication that Waste Management may have acted improperly is found in its documents, Exhibit 9, the Internet Price Model, which suggested that it was charging less to collect waste in some locations than its computer model indicated as the minimum cost of collection. The underpricing of goods or services is not unlawful, unless it has the effect of restraining free trade. Owens Corning v. R.J. Reynolds Tobacco Co., 868 So.2d 331, 344(¶ 32) (Miss.2004). There is no proof in the record that the actions of Waste Management had the effect of restraining trade. There were other waste disposal companies with whom McBride continued to contract. This fact is established in the testimony of Cindy McBride, who stated that in 2002 McBride lost seven customers to Waste Management, while moving over fifty customers from Waste Management to another waste hauler.

¶ 15. The evidence in the record indicates that Waste Management, having suffered the loss of a number of customers, aggressively marketed its services to its existing accounts, who had contracts with McBride. As a part of this aggressive marketing process, Waste Management offered these accounts rates substantially below those which they were able to receive by contracting with McBride to serve as their broker. In doing so, Waste Management made clear that these rates were only available under a direct contract, rather than brokered contracts. The results of this aggressive marketing is seen in the notation, “Took away from broker, but also needed to roll back price in order to keep,” found on several Waste Management documents related to customer accounts.

¶ 16. There was evidence presented from which it might be concluded that some contracts between McBride and its clients were terminated because Waste Management offered lower rates to these businesses. These were rates which Waste Management refused to extend to McBride. Waste Management says that its efforts were justified and legal because they were intended to keep its customers and increase its revenues. The effort to increase profitability, without more is not improper. However, the effort may be conducted under circumstances which render it improper, and therefore actionable. Cenac v. Murry, 609 So.2d 1257, 1269 (Miss.1992) (citing Wesley v. Native Lumber Go., 97 Miss. 814, 820, 53 So. 346, 347 (1910)). Likewise, the refusal of Waste Management to extend to a waste broker the same or lesser rates than those given to direct customers is not per se improper. Wertz v. Ingalls Shipbuilding, Inc., 790 So.2d 841, 848(¶ 27) (Miss.Ct.App.2000) (citing Restatement (Second) of Torts § 766 (1977)). Nor has McBride produced evidence of actions by Waste Management which were unlawful. Without proof of some improper action by Waste management, McBride’s claim must fail.

¶ 17. The record before this Court indicates that both McBride and Waste Management were very aggressive in the pursuit of business, and may even be described as playing hardball. However, that is not illegal.

¶ 18. This Court finds that the directed verdict was appropriate under the facts of this case. Having found the directed verdict to be appropriate, this Court will not address the remaining issues.

¶ 19. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANTS.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. GRIFFIS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: MYERS, P.J.,

text:
    Thomas Lee PARKER and Rubye C. Parker, Appellants v. HORACE MANN LIFE INSURANCE COMPANY and Leo Hawkins, Jr., Appellees.
    No. 2004-CA-02292-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Rehearing Denied Nov. 14, 2006.

      Precious Tyrone Martin, Dawn Laverne Stough, attorneys for appellants.
    Arthur F. Jernigan, Samuel Ernest Linton Anderson, Staci Bozant O’Neal, Jackson, attorneys for appellees.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On December 22, 2003, Thomas Lee Parker and Rubye C. Parker filed suit in Sharkey County Circuit Court against Horace Mann Life Insurance Company, Leo Hawkins, Jr., and John Does 1-5. The circuit court granted Horace Mann summary judgment on October 15, 2004. Parker appeals the circuit court’s ruling.

FACTS

¶2. Thomas Lee Parker and Rubye C. Parker (the Parkers) purchased a $100,000 ten-year term life insurance policy from Horace Mann Life Insurance Company (Horace Mann) through its agent Leo Hawkins on May 11,1989. On January 25, 1997, the Parkers converted their 1989 policy to a whole life insurance policy that accrued cash value with benefit amounts of $83,723. On June 26, 2002, the Parkers took out a loan on this policy in the amount of $4,603. The Parkers requested the surrender of the 1997 policy on September 25, 2002, and they received the cash value in the amount of $956.98 along with the satisfaction of the loan. The Parkers surrendered this policy because they obtained another policy with a different company with a lower premium. This surrender had nothing to do with this cause of action.

¶ 3. Both the 1989 and the 1997 insurance policies were delivered to the Parkers containing a fifteen day right to rescind and refund if they were not satisfied with the policies. Both Thomas Lee Parker and Rubye C. Parker were college graduates.

¶ 4. On December 22, 2003, the Parkers filed suit in Sharkey County Circuit Court asserting fraud and misrepresentation. The Parkers thought they were receiving two separate life insurance policies; however, both the 1989 and 1997 policy provided for payment of a similar death benefit upon the death of either insured. This left the surviving insured with the option to continue coverage under a new policy with Horace Mann within thirty-one days regardless of insurability. The policies also provided for a simultaneous death benefit for both if the insureds died within thirty-one days of each other. No insured died during the terms of these policies; therefore, no claims were made by the Parkers for Horace Mann to deny. Horace Mann was granted summary judgment on October 15, 2004. Aggrieved by the trial court’s ruling, the Parkers appeal raising the following issue:

WHETHER OR NOT THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF HORACE MANN LIFE INSURANCE COMPANY AND LEO HAWKINS JR.

¶ 5. The Parkers assert that the trial court erred in holding that their claims were time-barred and moot. The Parkers claim that they presented evidence that the policies at issue are ambiguous, and that Horace Mann and Hawkins repeatedly misrepresented these policies. Horace Mann argues that no real controversy arose regarding this policy, because neither insured died during the terms of either the 1989 or the 1997 policy.

¶ 6. This Court follows a de novo standard of review of a trial court granting summary judgment. Mozingo v. Scharf, 828 So.2d 1246, 1249 (¶ 5) (Miss.2002); Owens v. Thomae, 904 So.2d 207, 208 (¶ 7) (Miss.Ct.App.2005). Summary judgment is proper when there are no issues of material fact and the movant is entitled to a judgment as a matter of law. Id.

¶ 7. The Mississippi Code Annotated § 15-1-49 (Rev.2003) imposes a three year statute of limitations on claims for fraud. “A fraud claim accrues upon the completion of the sale induced by false representation or upon the consummation of the fraud.” Dunn v. Dent, 169 Miss. 574, 153 So. 798 (Miss.1934). Therefore, the statute of limitations begins to run when a person, with reasonable diligence, first knew or should have known of the fraud. Miss.Code Ann. § 15-1-67 (Rev. 2003). The Parkers entered into the contract with Horace Mann on January 25, 1997. They had three years from that date to file suit; therefore, this claim should have been filed prior to January 25, 2000.

¶ 8. However, fraudulent concealment tolls the statute of limitations for a cause of action. Robinson v. Cobb, 763 So.2d 883, 887 (¶ 18) (Miss.2000). For the Parkers to establish fraudulent concealment they must show an act or some type of conduct designed to prevent the discovery of this claim. Reich v. Jesco, Inc., 526 So.2d 550, 552 (Miss.1988). The Parkers must prove that Horace Mann and Hawkins engaged in affirmative acts of concealment, and that even though the Parkers acted with due diligence they were unable to discover it prior to the running of the statute of limitations. Id. The terms were written into the policy so there was no affirmative act to prevent this discovery. Stephens v. Equitable Life Assur. Society of U.S., 850 So.2d 78, 84 (¶20) (Miss.2003).

¶ 9. The Mississippi Supreme Court has stated that a person is under an obligation to read a contract prior to signing it, and will not be heard to complain of an oral misrepresentation which would have been corrected by reading the contract. Godfrey, Bassett and Kuykendall Architects, Ltd. v. Huntington Lumber and Supply Co. Inc., 584 So.2d 1254, 1257 (Miss.1991). Both the “term life” insurance policy from 1989 and the “flexible premium- adjustable life insurance on two insureds” policy from 1997, explain the coverage. This explanation includes the option to change to a single life policy, that the insured is able to withdraw from the policy account, that the policy may accrue a cash value, and that if both insureds die within thirty-one days of one another they have simultaneous death coverage. Even if Hawkins had mislead the Parkers, everything was set forth in the policy, and it was easy to understand. Both Mr. Parker and Mrs. Parker admitted during their deposition that neither read the policy, because had they read this policy, the benefits of the policy would have been understood. Mississippi Case law provides that insureds are bound by the contents of a contract that they enter into as a matter of law even if they have not actually read it. Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss. 1987).

¶ 10. Since this Court finds that the Parkers’ claims are barred by the statute of limitations, we find no need to address the mootness issue.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF SHARKEY COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: ROBERTS, J.,

text:
    John Griffin BOWIE, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00345-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.
    Rehearing Denied Nov. 14, 2006.

      John Griffin Bowie, appellant, pro se.
    Office of the Attorney General by Charles W. Maris, Attorney for Appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. John Griffin Bowie, pro se, appeals a decision of the Circuit Court of Harrison County dismissing his successive motion for post-conviction relief.

¶ 2. Finding no error, we affirm.

PROCEDURAL HISTORY AND FACTS

¶ 3. Bowie was indicted as a habitual offender on September 2, 2002. The indictment itself listed three previous convictions detailing dates, cause numbers, crimes committed and sentences given. On September 15, 2003, Bowie entered his petition to enter an open plea of guilty to the charge of burglary of a dwelling. Within his petition, Bowie was advised of the minimum and maximum possible sentences, three years and twenty-five years, respectively, and the fact that he was pleading guilty as a habitual offender. Additionally, Bowie admitted to and listed his several previous convictions of burglary and attempted burglary, totaling six in all since 1981. Pursuant to his guilty plea, Bowie was sentenced to ten years in the custody of the Mississippi Department of Corrections.

¶ 4. Following sentencing, Bowie filed a petition for post-conviction collateral relief on November 19, 2003. His sole claim of fault was that he was not afforded a speedy trial, and, after explaining Bowie’s guilty plea waived his right to a speedy trial and satisfying itself that Bowie’s guilty plea was, in fact, voluntarily given, the Circuit Court of Harrison County denied his post-conviction petition on June 15, 2004. In turn, Bowie filed his “Motion for Second or Successive Petitions” on March 28, 2005. Said motion was summarily dismissed as a successive writ in accordance with Mississippi Code Annotated § 99-39-23. Aggrieved by this decision, Bowie now appeals.

STANDARD OF REVIEW

¶ 5. A trial court’s decision to deny a petition for post-conviction relief should only be overturned if the trial court’s decision was clearly erroneous. Kirksey v. State, 728 So.2d 565(¶8) (Miss.1999). However, the appropriate standard of review for questions of law is de novo. Rice v. State, 910 So.2d 1163(¶ 4) (Miss. Ct. App 2005).

ANALYSIS

¶ 6. Bowie’s arguments are that his habitual offender status was never proven in court and that new evidence has surfaced that would save his successive petition pursuant to Mississippi Code Annotated section 99-39-23(6). An order dismissing a prisoner’s post-conviction relief motion is a final judgment and is conclusive unless reversed. Mississippi Code Annotated Section 99-39-23(6) (Supp. 2004). Additionally, said order shall act as a bar to any successive motions governed by Chapter 39. Id. Several exceptions apply to this general bar on successive petitions. The first concerns the prisoner’s state of insanity prior to the execution of a death sentence. Id. Secondly, a successive motion is allowed if the prisoner can show an intervening decision of either the supreme court of Mississippi or the Supreme Court of the United States that would have adversely affected the outcome of his conviction or sentence. Id. The third exception requires the prisoner to show that either his sentence has expired or his parole, probation or conditional release has been unlawfully revoked. Id. Lastly, if the prisoner can bring to light “evidence, not reasonably discoverable at the time of trial, which is of such a nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.” Id.

¶ 7. These statutory rules have been echoed by this Court. A prisoner requesting post-conviction relief must place before the court all facts and issues that are known, or should be known, at the time of the petition. Rochell v. State, 913 So.2d 993(¶ 6) (Miss.Ct.App.2005). Failure to do so results in a loss of the claims. Id. Bowie’s first attempt at post-conviction relief was properly denied and not followed by any attempt to appeal the decision. As such, and in accordance with section 99-39-23(6), the June 15, 2004 order denying said motion is the final judgment. Subsequently, Bowie’s second attempt at post-conviction relief is barred unless one of the exceptions detailed above allows further consideration of Bowie’s post-conviction woes. Bowie argues several times throughout his brief, reply brief, and supplemental reply brief that the prosecution failed to introduce proper evidence of his prior convictions, and, as such, he was improperly sentenced as a habitual offender. Under these facts, the first three exceptions listed neither apply nor were plead by Bowie. The last exception, concerning new evidence not reasonably discoverable at trial, while plead, is not appropriate under the facts presented in the case at hand. All of the facts and evidence Bowie presents in support of his attempt to receive post-conviction relief under a successive petition were known at the time of his first petition for post-conviction relief. Accordingly, the final exception does not apply and Bowie’s successive petition was rightfully dismissed.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR.

      . We feel it is important to stress that the sentence Bowie received was not in accordance with the statutory requirements of Mississippi Code. Annotated section 99-19-81, but actually more lenient than it legally should have been. Bowie entered an open plea to burglary of a dwelling as a habitual offender under Mississippi Code Annotated section 99-19-81. As the language of section 99-19-81 makes clear, the trial court had no sentencing discretion because, as was clearly stated on Bowie’s open plea, the maximum sentence, which section 99-19-81 mandates must be given, for burglary of a dwelling was twenty-five (25) years. Additionally, we are at a loss concerning Bowie’s motivations and expectations surrounding his successive petition attempting to cast doubt on the habitual offender status he voluntarily plead guilty to, which, given the underlying offense, should have statutorily required a sentence of twenty-five (25) years.


author: SOUTHWICK, J.,

text:
    David MIRANDA, M.D., Appellant v. WESLEY HEALTH SYSTEM, LLC, d/b/a Wesley Medical Center, Appellee.
    No. 2005-CA-00925-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.
    Rehearing Denied Nov. 7, 2006.

      Ron L. Woodruff; Jim Waide, Tupelo, attorney for appellant,
    Thomas W. Tyner, Hattiesburg, attorney for appellee.
   SOUTHWICK, J.,

for the Court.

¶ 1. Wesley Medical Center was granted summary judgment by the Lamar County Circuit Court in an action brought by Dr. David Miranda for breach of his employment contract. Miranda argues that there were disputed issues of material fact. We disagree and affirm the judgment.

FACTS

¶ 2. Dr. Miranda signed an employment contract to work as an emergency room doctor with Wesley on July 1, 2001. A second contract began on July 1, 2002. Each contract was for a one-year term. The 2002 contract contained these two termination provisions:

3.2 Termination Without Cause. Either party may terminate Physician’s employment hereunder, without cause, at any time upon sixty (60) days prior written notice to the other party.
3.3 Termination by Employer. Employer may terminate Physician’s employment hereunder at any time for “cause.” In the event Physician is terminated for cause, termination shall be effective immediately upon notification by Employer. Employer shall have the sole discretion in determining if cause exists. Cause includes, but is not limited to, the following:....

Fourteen examples of cause are then listed, which we will review in a later section of our analysis.

¶ 3. In summary, one section of the contract allowed termination by either party simply upon giving sixty-days written notice. That right was not used. Another section allowed termination at any time for cause. Wesley had sole discretion in determining if cause existed. On February 17, 2003, Wesley’s CEO called Dr. Miranda into her office and told him that he was being fired due to numerous patient complaints. Dr. Miranda was provided with seven written complaints concerning his conduct on specific occasions as the basis for his employment termination. Generally, the complaints involved what patients described as “rude and obnoxious” behavior and a demeanor that was said to indicate insensitivity and disinterest toward patients.

¶ 4. Dr. Miranda brought this suit alleging a wrongful termination. The circuit court granted summary judgment to Wesley. Dr. Miranda has appealed.

DISCUSSION

¶ 5. Summary judgments are reviewed de novo. The appellate court examines the same materials as did the trial court in order to determine whether a dispute of material fact exists and whether the moving party is entitled to judgment as a matter of law. M.R.C.P. 56; Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005). Dr. Miranda argues that because his contract was for a one-year term, it was error to find as a matter of law that he was an at-will employee. A secondary argument is that a fact issue existed as to whether Wesley used good faith in exercising whatever rights it had to terminate Dr. Miranda. Finally, Dr. Miranda argues that public policy prevents his termination. We will discuss these issues separately.

ISSUE 1: At-Will Employment Contracts

¶ 6. The trial court held that even though the contract provided a one-year term of employment, Dr. Miranda was an at-will employee since he could be terminated “for cause” without having a right to contest the grounds. Several issues must be reviewed to determine whether to affirm.

¶ 7. In Mississippi, “an employment contract at will may be terminated by either party with or without justification.” HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1108 (Miss.2003) (quoting Kelly v. Miss. Valley Gas Co., 397 So.2d 874, 877 (Miss.1981)). Preliminarily, we note that it is almost beside the point whether to label Dr. Miranda’s contract “at-will.” The core issue is whether the contract provision allowing nonreviewable termination is enforceable. Absent illegality or public policy violations, contracts are to be enforced as written. Enforce is what the trial court did.

¶ 8. We will review the caselaw on at-will contracts. In many of the precedents, a phrase appears that employment is not at-will if there is a fixed-term contract. It will be helpful to examine the development of this frequently intoned but rarely applied part of the legal standard. In a recent decision, employment was found to be at-will, but this Court said that this would not be true under “a contract providing for a term of employment.” Senseney v. Miss. Power Co., 914 So.2d 1225, 1228 (Miss.Ct.App.2005) (citing Perry v. Sears, Roebuck & Co., 508 So.2d 1086, 1088 (Miss.1987)). The case we cited, Perry, was explaining general principles:

It is undisputed that there was no written employment contract specifying the length of Perry’s employment. Thus, on the face of it, Perry would seem to fall victim to Mississippi’s adherence to the common law rule that where there is no employment contract (or where there is a contract which does not specify the term of the worker’s employment), the relation may be terminated at will by either party. Mississippi has followed this rule since 1858.

Perry, 508 So.2d at 1088 (citing Butler v. Smith & Tharpe, 35 Miss. (6 Geo.) 457, 464 (1858)).

¶ 9. To gain understanding of the importance of a fixed term in a worker’s contract, we examine the precedent on which Perry relied, written in 1858 by Justice Alexander Hamilton Handy:

In its nature, it was an agreement constituting the plaintiff the agent of the defendants, to receive and store goods brought to the port for them by steamboats, without limitation of time; and for that service, they agreed to pay him at certain stipulated rates.
The plaintiffs wharf-boat had been previously established, and was engaged in the business of receiving and storing goods, so that he was not induced to build the boat, or to enter upon the business, by the consideration of the agreement with the defendants. Thus far it was merely the employment of an agent for an indefinite time, to perform certain services from time to time, at a stipulated price, and either party would have had the right to put an end to the agency.
There appears, therefore, to be nothing in the transaction to take it out of the general rule, that an agency to do particular services from time to time, to be paid for as the services are rendered, and without any agreement as to the time of its continuance, is determinable at the pleasure of either party.

Butler v. Smith & Tharpe, 35 Miss. at 464.

¶ 10. Butler involved a contract without a definite term. However, Justice Handy had earlier upheld damages to an employee who was hired for one year but was fired after three months. Prichard, v. Martin, 27 Miss. 305, 307 (1854) (cited in appellee’s brief in Butler, 35 Miss, at 460-61). If termination occurs “wantonly and without cause” at a time of year “when it is impracticable to get employment elsewhere,” the entire unpaid wage for the year is due. Prichard, 27 Miss, at 310-11 (citing precedents only from other states). In neither Butler nor Prichard was there, as here, a contract with both a fixed term and a provision allowing termination at the employer’s sole discretion. Thus neither opinion sheds much interpretative light on the issues before us.

¶ 11. Other cases state that “Mississippi follows the common law rule that a contract of employment for an indefinite term may be terminated at the will of either party.” Kelly, 397 So.2d at 874 (ease concerned whether public policy should block a discharge made for filing workers’ compensation claim); Starks v. City of Fayette, 911 So.2d 1030, 1032 (Miss.Ct.App.2005) (at-will employee, citing Perry)-, Hammons v. Fleetwood Homes of Miss., Inc., 907 So.2d 357, 360 (Miss.Ct.App.2004) (“contracts drafted with indefinite terms regarding duration may be terminated at the will of either party”; the court found the contract to be at-will). In none of these cases was there a contract for a fixed term, which means there was no analysis of variations in such contracts.

¶ 12. In the most analogous set of facts to our own, the Mississippi Supreme Court upheld a summary judgment which found employment at-will under three written contracts for management of the offices of three insurance companies in a county. Shaw v. Burchfield, 481 So.2d 247 (Miss. 1985). One contract provided for termination of manager Shaw on the date that he became seventy years of age, and the other two contracts at age sixty-five. Id. at 250. Shaw argued these created a definite term preventing his earlier dismissal without sufficient cause. The court examined the contracts and found several relevant clauses, including termination without reason on ten days’ notice, or for a serious act of dishonesty, or for disability. Id. at 252-53. Shaw was fifty-six when he was discharged because of ill health after being given ten days’ notice. Id. at 249 & 251. The court noted that the contracts might have been clearer if all the grounds for termination had been listed together with an “or” between them. Nonetheless, their independence and effectiveness were clear. Id. at 253. Similar to Dr. Miranda’s contract, whatever fixed term there may have been in Shaw’s contracts was subject to explicit discharge rights.

¶ 13. A few precedents involve dismissal under employment contracts with fixed terms. In the most recent we have discovered, a one-year term might be inferred from a letter from the employer that offered an annual salary, required the new employee to give up his existing job and move, and provided for payment of moving expenses. Rosen v. Gulf Shores, Inc., 610 So.2d 366 (Miss.1992). The letter — the only significant writing regarding the employment — did not set out any rules for termination. After three months, the employee was terminated based on allegedly poor performance. Id. at 367. Based on this letter, the Supreme Court found a fact issue of whether a one-year term was offered; summary judgment was reversed. Id. at 369-70.

¶ 14. Another precedent involved an oral contract to employ the plaintiff “for the term of one year beginning June 1, 1949, and ending May 31, 1950, with the understanding that if said manufacturing plant was efficiently managed and continued in operation that he would then be employed from year to year thereafter so long as his services were satisfactory.” Greer v. Crawford Corp., 220 Miss. 97, 103, 70 So.2d 69, 70 (1954). The issues in the case involved the statute of frauds and whether this oral contract was enforceable at all. The significance of Greer for us is that the contract provided “definitely for employment for one year.... ” Id., 220 Miss. at 105, 70 So.2d at 71. That definiteness was due to the absence of a right of discharge during the first year.

¶ 15. An older case in which the right to terminate during a definite term was the central question also concerned an oral contract. Lee v. Hampton, 79 Miss. 321, 30 So. 721 (1901). Hampton had been employed by Lee as a manager of a plantation for eight years under year-to-year oral contracts. On January 2, 1900, Hampton asked if he would be the manager for 1900. Lee replied, “You can stay if you wish.” Id., 79 Miss. at 325, 30 So. at 721. On January 13, Hampton was discharged. - The court found a legitimate jury issue of whether the brief conversation formed a one-year contract of employment that could not be terminated without proof of adequate cause. Id.

¶ 16. In these occasional precedents in which an employment contract for a definite term arguably existed, only in Shaw was there also a right to terminate at the sole discretion of the employer. A “definite term” self-evidently must be definite. A contract for a stated term removes employment from the at-will doctrine only if there is an enforceable right for the employee to remain for that length of time. The period of time must be definite legally; it must be a promise and not just a goal. If what the contract gives in one provision for a set term is taken back in another for discharge at the sole discretion of the employer, there is a legally indefinite term of employment. Almost the reverse of the principle that an employee may be dismissed at-will “absent an employment contract expressly providing to the contrary” (Burchfield, 481 So.2d at 253-54), an employee with a fixed term contract may be dismissed at-will only if his contract expressly so provides.

¶ 17. Here, Section 3.3 of the contract is the key provision, as it was the one under which Dr. Miranda was dismissed. It provides for termination for cause, reserving sole discretion to Wesley for assessing whether there is sufficient cause. The one-year term provided a maximum period for employment. Continuation for a longer period would require forbearance or a new contract. Since there was no limit on the reasons for which Wesley could end Dr. Miranda’s employment at any time, this was an at-will relationship. Dr. Miranda’s contract was for one year with incontestable exceptions. With an unfettered right to terminate, the contract’s length was irrelevant.

ISSUE 2: Good Faith Provision for Termination

¶ 18. Regardless of the at-will rules, Dr. Miranda argues that a fact issue exists as to whether Wesley exercised its rights in good faith. He relies on caselaw that indicates every contract in Mississippi imposes on the parties the obligation of good faith and fair dealing. See University of Southern Mississippi v. Williams, 891 So.2d 160, 170-71 (Miss.2004) (“every contract contains an implied covenant of good faith and fair dealing in performance and enforcement.”)

¶ 19. However, the Supreme Court has corrected its sometimes overly-broad statements that all contracts have implied covenants of good faith and fair dealing. While “[t]here are numerous Mississippi contract cases that state that all contracts contain an implied duty of good faith and fair dealing, [the Supreme Court] has never recognized a cause of action based on such a duty arising from an employment at-will relationship.” Young v. North Miss. Med. Ctr., 788 So.2d 661, 663-64 (Miss.2001) (emphasis removed). “[A]t-will employment relationships are not governed by a covenant of good faith and fair dealing which gives rise to a cause of action for wrongful termination.” Id.; see also Cothern v. Vickers, Inc., 759 So.2d 1241, 1248 (Miss.2000) (“there is no implied duty of good faith and fair dealing in employment contracts.”) Thus, the validity of terminations under at-will contracts are not to be viewed through a good faith lens. Otherwise, the language that an employer may validly fire for a good, bad, or no reason becomes a nullity. Harris v. Mississippi Valley State University, 873 So.2d 970, 986 (Miss.2004).

¶20. Alternatively, significance might be found in the fact that this contract actually refers to “good faith.” We again quote the general provision used for Dr. Miranda’s termination:

3.3 Termination by Employer. Employer may terminate Physician’s employment hereunder at any time for “cause.” In the event Physician is terminated for cause, termination shall be effective immediately upon notification by Employer. Employer shall have the sole discretion in determining if cause exists. Cause includes, but is not limited to, the following:....

The contract then lists fourteen specific examples of cause for termination, including this:

3.3.12 Upon the determination of Employer in good faith that Physician is not providing adequate patient care or that the health, safety, or welfare of patients is jeopardized by continuing the employment of Physician.

¶ 21. Even if employment at-will contracts do not have an implied good faith requirement, subparagraph 3.3.12 is an explicit reference to good faith. However, that subparagraph is not the one that explains Dr. Miranda’s dismissal. The Human Resource Director who recommended termination stated that the provisions relied upon were Sections 3.3.1-3.

3.3.1 Upon material violation by Physician of any provisions of this Agreement or the rules, policies, and/or procedures of Employer and/or Hospital.
3.3.2 Upon repeated failure by Physician to meet utilization perform-anee efficiency, or quality standards established by Employer.
3.3.3 Upon conduct by Physician which is considered by Employer to be unethical, unprofessional, fraudulent, unlawful, or adverse to the interest, reputation or business of Hospital or Employer.

¶ 22. Dr. Miranda’s actions, such as his alleged boorishness and rudeness, reasonably qualify as unprofessional conduct. Regardless of which specific subparagraph is the most apt, the reasons are contractually described in Section 3.3 as examples and not limitations. Every basis for dismissal is to be determined at the employer’s “sole discretion,” making that discretion control even when the specific reason contains “good faith” terminology. We conclude that section 3.3.12 is not sufficient to import the concept of good faith throughout the contract and overrule at-will principles.

ISSUE 3: Public Policy Exception to Atr-Will Employment Contracts

¶ 23. Dr. Miranda argues that his termination was against public policy because the true reason for his dismissal was his refusal to give narcotics to drug seekers or to over-prescribe antibiotics. He alleges that Wesley was more concerned with maximizing profits than with medical care.

¶ 24. In addition to unlawful discriminatory bases for discharge, there are two public policy prohibitions: at-will employment may not be terminated for reporting or for refusing to participate in illegal activity. HeartSouth, 865 So.2d at 1108, citing McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 607 (Miss.1993). The trial court found and the record reflects that Dr. Miranda never offered proof that he had been terminated on these grounds. To the extent recognition of another public policy exception is sought, we find no basis to pronounce one on these facts.

¶ 25. The trial court committed no error in granting summary judgment to Wesley.

¶ 26. THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. KING, C.J., AND MYERS, P.J., DISSENT WITHOUT SEPARATE WRITTEN OPINION. CHANDLER, J., NOT PARTICIPATING.