author: CARLSON, Presiding Justice,

text:
    R.W. WHITAKER and Monty Fletcher v. LIMECO CORPORATION and William Kidd.
    No. 2009-CA-00351-SCT.
    Supreme Court of Mississippi.
    April 8, 2010.

      Michael N. Watts, R. Bradley Best, attorneys for appellants.
    Margaret Sams Gratz, L.F. Sams, Jr., attorneys for appellees.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Failing in their efforts to collect more than $850,000 purportedly owed to them as a result of the trial court’s dismissal of their claims against Limeco Corporation and William Kidd, R.W. Whitaker and Monty Fletcher appeal to us for relief. Although we find that the trial court correctly dismissed some of the claims asserted by Whitaker and Fletcher, we likewise find error on the part of the trial court in dismissing in their entirety all claims asserted by Whitaker and Fletcher against Limeco and Kidd. Thus, the Lee County Circuit Court’s judgment of dismissal is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Some of the facts in today’s case are gleaned from our opinion in a related case, Fletcher v. Limeco Corporation, 996 So.2d 773 (Miss.2008). William Kidd served as managing director of Limeco Corporation. Beginning in 2001, negotiations began between Kidd/Limeco, the Defendants/Appel-lees, and R.W. Whitaker and Monty Fletcher, the Plaintiffs/Appellants, in connection with what later became a failed effort to purchase a hockey team in Tupe-lo. The Plaintiffs maintain that in the course of these 2001 negotiations, Kidd misrepresented to them that Limeco was a corporation with substantial assets. The Plaintiffs further allege that, as a result of Kidd’s misrepresentations, they were fraudulently induced by Kidd to lend Li-meco $750,000. According to the Plaintiffs, these loans were made based on Kidd’s misrepresentations to the Plaintiffs that, to the extent Kidd could not pay back the loans, Limeco had sufficient assets to repay the loans in full. The Plaintiffs claim Kidd concealed the fact that Limeco had no assets, and in doing so, shared with the Plaintiffs certain financial records and books which showed the corporation to be a solvent corporation possessing sufficient assets to repay the loans. See Fletcher, 996 So.2d at 774.

¶ 3. The Plaintiffs further allege that, on or about February 19, 2002, Kidd induced Whitaker to take out an additional $100,000 loan from Peoples Bank & Trust Company in Tupelo, and, in turn, to lend Kidd the full amount of this loan, which came due on April 19, 2002. This loan was extended by Whitaker in the form of a continuing guaranty with the understanding that the Defendants would be responsible to the bank for any and all indebtedness of Whitaker to the bank for an amount up to $100,000.

¶ 4. On July 1, 2002, the parties entered into what they referred to as promissory notes (referred to as the “Fletcher note” and the “Whitaker note”) to memorialize the terms of the loan agreements they had made in early 2002. Both Fletcher and Whitaker, in an effort to secure what they thought were promissory notes, were granted a continuing lien on Limeco’s monies, securities, and/or other property for the entire amount of the promissory notes (each in the amount of $375,000).

¶ 5. On December 11, 2003, Whitaker and Fletcher filed separate complaints against Limeco and Kidd. The Plaintiffs alleged that they had lent Kidd more than $850,000 that had never been repaid. Both complaints alleged claims of breach of promissory notes. Whitaker also alleged that he had been induced to lend Kidd an additional $100,000 and had allowed Kidd to enter into a continuing guaranty when the loan came due; thus, Whitaker’s complaint included both a breach-of-promissory-note claim and breaeh-of-continuing-guaranty claim. The Lee County Circuit Court dismissed both complaints due to defective service. The cases were consolidated, and the dismissal for lack of proper service was affirmed by this Court on appeal. Fletcher, 996 So.2d at 781.

¶ 6. However, on September 18, 2007, during the early stages of the Fletcher appeal, the Plaintiffs filed a complaint against Kidd and Limeco in the Lee County Chancery Court, alleging breach of promissory notes, breach of continuing guaranty, fraud, and fraudulent transfer of assets. Due to the alleged fraud, the Plaintiffs sought to pierce the corporate veil in order to include as defendants not only Limeco, but William Kidd, individually. The trial court ultimately found the suit to be time-barred. The breach-of-promissory-note claims were dismissed due to the trial court’s determination that the notes did not meet the statutory requirements to be considered instruments of negotiability; thus, according to the trial court, the claims were subject to a three-year breach-of-contract statute of limitations, as opposed to the six-year statute of limitations for a breach-of-promissory-note cause of action. The fraud claims were found to be time-barred because, according to the trial court, the Plaintiffs first had knowledge of the fraud in 2003 when they filed the original suit. As a result, according to the trial court, the three-year statute of limitations for fraud would have run in 2006. The trial court rejected the Plaintiffs’ argument that the factual basis for their fraud claims had been fraudulently concealed from them by Kidd until March 2007. The trial court found that, because the Plaintiffs had failed to establish a basis for a claim of fraud, there was no justification for piercing the corporate veil and holding Kidd responsible for Limeeo’s failure to repay the $850,000.

¶ 7. The Defendants, Limeeo and Kidd, filed separate answers and defenses to the complaint. Subsequently, the Defendants filed a motion to dismiss and a motion to stay discovery, to which the Plaintiffs responded. Finally, by mutual agreement, the parties agreed to transfer this case to the Circuit Court of Lee County on February 4, 2008.

¶ 8. Following an August 12, 2008, hearing on the Defendants’ motion to dismiss, Judge James L. Roberts, Jr., presiding, the trial court entered an order on January 30, 2009, dismissing the complaint on the grounds that the statute of limitations had expired for the breach-of-promissory-note claim, the breach-of-continuing-guaranty claim, and the fraud claim. The trial court rejected the argument made by the Plaintiffs that Kidd fraudulently had concealed the facts supporting their fraud claim. The trial court found the statute of limitations for fraud began running on December 11, 2003, when the Plaintiffs had filed their original claim; thus, according to the trial court, all claims were time-barred as of December 2006. The trial court concluded that, because their fraud claims were time-barred, the Plaintiffs were precluded from bringing a cause of action against Kidd in an individual capacity because, in order to pierce the corporate veil, the Plaintiffs were required to have a viable fraud claim. From the trial court’s judgment of dismissal, the Plaintiffs timely appealed to this Court.

DISCUSSION

¶ 9. The Plaintiffs raise the following issues in today’s appeal: (1) whether the trial court erred in dismissing the breach-of-promissory-notes claims based on a finding that the promissory notes were not negotiable instruments under Mississippi Code Section 75-3-104 (Rev.2002), and thus not subject to the six-year statute of limitations; (2) whether the trial court erred in dismissing the fraud and breach-of-eontinuing-guaranty claims based on its finding that the Plaintiffs did not allege any facts that would toll the three-year statute of limitations; and (3) whether the trial court erred in ruling that Limeeo had no corporate liability, and as a result, ruling that the Plaintiffs could not pierce Limeco’s corporate veil.

¶ 10. When considering issues of law, such as statutes of limitations, this Court employs a de novo review. Andrus v. Ellis, 887 So.2d 175, 179 (Miss.2004). When reviewing a trial court’s grant or denial of a motion to dismiss or a motion for summary judgment, this Court likewise applies a de novo standard of review. Burleson v. Lathem. 968 So.2d 930, 932 (Miss.2007) (citing Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006); Park on Lakeland Drive, Inc. v. Spence, 941 So.2d 203, 206 (Miss.2006); McLendon v. State, 945 So.2d 372, 382 (Miss. 2006); Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005)). “‘When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.’ ” Id. (quoting Scaggs, 931 So.2d at 1275).

I. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THE PROMISSORY NOTES WERE NOT NEGOTIABLE INSTRUMENTS AND THUS NOT SUBJECT TO THE SIX-YEAR STATUTE OF LIMITATIONS.

¶ 11. The Plaintiffs argue that the notes entered into by Kidd, each in the amount of $375,000, met all of the statutory requirements for negotiable instruments pursuant to Mississippi Code Section 75-3-104 (Rev.2002); thus, the complaint was timely filed within the six-year statute of limitations pursuant to Section 75-3-118(b).

¶ 12. The trial court dismissed the Plaintiffs’ complaint on the basis that neither of the promissory notes, each in the amount of $375,000, was a negotiable instrument under Section 75-3-104 because neither of the notes contained the required “words of negotiability.” As a result, the trial court found that the notes were not subject to the six-year statute of limitations applicable to negotiable instruments under Section 75-3-118(b). Instead, according to the trial court, the notes were subject to the three-year statute of limitations for breach-of-contract claims. Conversely, Kidd argues that the trial court correctly interpreted the provisions of Section 75-3-104.

¶ 13. Section 75-3-104(a) defines a negotiable instrument as follows:

Except as provided in subsections (c) and (d), “negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
(1) Is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
(2) Is payable on demand or at a definite time; and
(3) Does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obli-gor.

Miss.Code Ann. § 75-3-104(a) (Rev.2002).

¶ 14. The statutory definition of “payable to order” is found in Section 75-3-109(b), which states:

A promise or order that is not payable to bearer is payable to order if it is payable (i) to the order of an identified person or (ii) to an identified person or order. A promise or order that is payable to order is payable to the identified person.

Miss.Code Ann. § 75-3-109(b) (Rev.2002).

¶ 15. What the Plaintiffs identify as the “Whitaker note” reads as follows: “On demand, for value received, I promise to pay to R.W. Whitaker ... the sum of Three Hundred, Seventy-five Thousand Dollars ($375,000).” The written agreement identified as the “Fletcher note” contains identical language. The Plaintiffs argue that this meets the statutory definition of “payable to order” and urge this Court to interpret Section 75-3-109(b) as defining “payable to order” as follows: payable “to the order of an identified payee,” payable to an identified payee, or payable “to order.” In support of their argument, the Plaintiffs cite the canon of statutory construction that statutes written in the disjunctive set forth separate and distinct alternatives. See In re Branan, 419 So.2d 145, 146 (Miss.1982) (“The use of the disjunctive ‘or’ denotes a choice between alternatives.”).

¶ 16. However, interpreting Section 75-3-109(b)(ii) as defining “payable to order” as payable to an identified payee or payable to order is contrary to how the majority of jurisdictions interpret the Uniform Commercial Code’s statutory requirements for negotiable instruments. In order to meet the requirements of a negotiable instrument:

[A] paper or instrument generally must be payable to order or to bearer at the time it is issued or comes into the possession of a holder. This means that notes payable simply to a specific payee, and not to the order of the payee or to the payee or order, are not negotiable.

11 Am.Jur.2d Bills and Notes § 37 (2009) (footnotes omitted). Thus, the words “payable to the order of’ or payable “to [identified payee] or order” must appear within the instrument in order to qualify it as a negotiable instrument, and since the promissory notes in today’s case do not contain this language, they cannot be deemed to be negotiable instruments.

¶ 17. Arguing that the agreements met the statutory definition of negotiable instruments, the Plaintiffs contend that the six-year statute of limitations for negotiable instruments under Section 75-3-118 applies in this case and that the statute of limitations would not have expired until July 1, 2008, six years after the Whitaker and Fletcher notes were signed. However, having already found no error on the part of the trial court in declining to find that either of the notes met the statutory requirements for negotiable instruments, we find no error on the part of the trial court in applying the three-year statute of limitations pursuant to Section 15-1-49. See Miss.Code Ann. § 15-1-49 (Rev.2003). Accordingly, there was no error on the part of the trial court in dismissing the breach-of-promissory-notes claim as time-barred.

II. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE FRAUD AND BREACH-OF-CONTINUING-GUARANTY CLAIMS.

¶ 18. Negotiations between these parties began in 2001. The Plaintiffs’ complaint states that in early 2002, based on the fraudulent inducement by Kidd, they each lent Kidd/Limeco $375,000. On or about February 19, 2002, Kidd allegedly induced Whitaker to borrow from The Peoples Bank & Trust Company in Tupelo $100,000 for the benefit of Kidd, who in turn misrepresented to the Plaintiffs that, to the extent he could not personally repay the loans, Limeco had sufficient assets to satisfy the loan agreements. According to the Plaintiffs, Kidd concealed the fact that Limeco did not have sufficient assets to repay the loans by showing them false documentation in the form of financial books depicting Limeco as a corporation with substantial assets. On April 19, 2002, the bank loan came due and was extended with the understanding that Kidd would execute a continuing guaranty in which Kidd guaranteed that any and all indebtedness of Whitaker to the Bank would be paid by Kidd/Limeco for an amount up to $100,000 — a continuing guaranty which both Kidd and Limeco subsequently failed to honor. On July 1, 2002, Kidd entered into a promissory note with both Plaintiffs, with each note memorializing the agreement between Kidd and the Plaintiffs to repay each of them $375,000 with an interest rate of seven percent per year.

¶ 19. The trial court found that “the Plaintiffs have failed to allege any affirmative acts on the part of the Defendants designed to conceal the Plaintiffs’ causes of action. The facts alleged relate only to the original act of fraud by the Defendants.” As to when the three-year statute of limitations commenced running for the fraud claim, the trial court opined:

[T]he Plaintiffs’ complaint fails to state precisely when Kidd and Limeco Corporation committed these acts. However, it is certain that the Plaintiffs had knowledge of their claim for fraud at the very latest on December 11, 2003, when they filed their original complaint. As the present suit was filed in September, 2007, the Plaintiffs’ causes of action for fraud are clearly barred by the three-year statute of limitations.

Accordingly, the trial court granted Kidd’s Motion to Dismiss based upon the Plaintiffs’ failure to state a claim upon which relief could be granted pursuant to Mississippi Rule of Civil Procedure 12(b)(6).

¶ 20. “[Fraudulent concealment of a cause of action tolls its statute of limitations.” Channel v. Loyacono, 954 So.2d 415, 423 (Miss.2007) (quoting Robinson v. Cobb, 763 So.2d 883, 887 (Miss. 2000); Myers v. Guardian Life Ins. Co. of America, Inc., 5 F.Supp.2d 423, 431 (N.D.Miss.1998)). The fraudulent concealment doctrine “applies to any cause of action.” Robinson, 763 So.2d at 887 (quoting Myers, 5 F.Supp.2d at 431).

¶ 21. Mississippi Code Section 15-1-67 governs the tolling of statutes of limitations due to fraudulent concealment:

If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

Miss.Code Ann. § 15-1-67 (Rev.2003). The proper test is “whether a reasonable person similarly situated would have discovered potential claims.” Andrus, 887 So.2d at 180 (citing Am. Bankers’ Ins. Co. of Fla. v. Wells, 819 So.2d 1196, 1201 (Miss.2001)).

¶ 22. In alleging fraudulent concealment of a claim, a plaintiff must show: “(1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) due diligence was performed on their part to discover it.” Channel, 954 So.2d at 423 (quoting Stephens v. Equitable Life Assurance Soc. of U.S., 850 So.2d 78, 84 (Miss.2003)). The affirmative act must be designed to prevent discovery of the claim. Id. (citing Robinson v. Cobb, 763 So.2d 883, 887 (Miss.2000)). Both are questions of fact, not law, and should be left to a jury for determination. Robinson, 763 So.2d at 888-89.

¶ 23. The Defendants argue that the trial court was correct in its ruling inasmuch as the Plaintiffs assert the same facts to support both the fraud claim and the fraudulent-concealment claim, namely that Kidd produced false books showing Limeco to be solvent. According to the Defendants, the Plaintiffs failed to assert any subsequent affirmative act of concealment. The Defendants cite Andrus v. Ellis, 887 So.2d 175, 181 (Miss.2004), for the premise that a plaintiff must prove “some subsequent affirmative act by the defendant which was designed to prevent and which did prevent discovery of the claim.” Id. (citing Stephens, 850 So.2d at 83-84).

¶ 24. The facts at hand, however, are easily distinguished from those found in Andrus, which involved various plaintiffs who entered into loan agreements with Commercial Credit Corporation. Andrus, 887 So.2d at 176-78. The plaintiffs in Andrus filed suit against eight individual defendants, all employees of Commercial Credit, claiming that the defendants fraudulently induced them to purchase credit-insurance policies in connection with their loans. Id. at 176. The plaintiffs claimed that they either were not aware that they had purchased credit insurance, or they were aware, but thought the insurance was required in order to take out the loan. Id. This Court rejected the plaintiffs’ fraudulent-representation argument on the basis that the testimony reflected a general misunderstanding of the terms of their loans, not specific, affirmative acts of concealment. Id. at 181. Moreover, all plaintiffs were put on notice of the terms of the loans when they received copies of the loan documents. Id.

¶ 25. As to the first prong of fraudulent concealment, an affirmative act to prevent discovery of a claim, see Channel, 954 So.2d at 423, we find that the Plaintiffs have made a sufficient showing of affirmative acts by Kidd to conceal the Plaintiffs’ fraud claim to warrant a jury determination. Kidd made fraudulent misrepresentations regarding Limeco’s assets in the course of negotiations between the parties as early as 2001. These negotiations culminated in three separate loan agreements, wherein the Defendants received more than $850,000. Kidd presented the Plaintiffs "with financial records depicting Limeco as a solvent corporation. According to the Plaintiffs, in February 2002, Kidd induced Whitaker to take out a loan in the amount of $100,000, again with the understanding that Kidd and Limeco had sufficient assets to repay this loan. In April 2002, Kidd executed a continuing guaranty with the understanding that Kidd would be responsible for any and all indebtedness to the Bank up to $100,000. In July 2002, Kidd memorialized the two $375,000 loans with two written contracts (called “promissory notes” by the Plaintiffs), drafted and executed with the understanding that Kidd and Limeco had substantial assets to repay the loans.

¶26. Moreover, as to whether there were subsequent acts of concealment, the facts in this case are distinguishable from the case relied on by the trial court, Dunn v. Dent, 169 Miss. 574, 153 So. 798 (1934). Dunn involved a claim for alleged false representations made in a warranty deed as to the amount of land conveyed to the appellant. Dunn, 153 So. at 798. The suit was time-barred because it was not filed within the requisite six-year statute of limitations. Id. at 799. This Court rejected the appellant’s fraudulent-concealment claim based on the fact that, once the real estate transaction was complete and the six-year statute of limitations period began running, the parties had no subsequent communication or dealings. The Court stated, “[Ajfter the delivery of the deed, the appellant had no communication with the appellees, and it fails to show that they did anything that could be construed as a concealment of the falsity of the representation as to the amount of land conveyed, or a concealment of the cause of action.” Id. Unlike Dunn, the Plaintiffs’ complaint in today’s case alleged subsequent dealings and communication between the parties, such that a jury determination as to whether the Plaintiffs used due diligence in discovering their fraud claim is necessary.

¶27. The trial court aptly stated the law that an act cannot be both an act of fraud in the inducement and an act of fraudulent concealment. Thus, showing false financial records could not serve to have both fraudulently induced the Plaintiffs and fraudulently concealed from the Plaintiffs the underlying fraud claim. Regardless of whether the Plaintiffs were fraudulently induced to lend the money by the false financial records, the parties had subsequent dealings after the early 2002 fraudulent inducement, namely, inducing Whitaker to lend Kidd an additional $100,000 and to enter into the continuing guaranty, and then entering into the written agreements (referred to by the Plaintiffs as promissory notes) in July 2002. These subsequent agreements and dealings were predicated on the fact that Kidd continued to incur debt with the understanding that, to the extent he could not repay the loans, Limeco would repay the debts that he incurred on Limeco’s behalf.

¶ 28. As to the second prong, due diligence, the Plaintiffs deposed Kidd in March 2007, as part of the discovery in the original complaint for the breach-of-promissory-notes and breach-of-continuing-guaranty claims. During his deposition, Kidd admitted to fraudulently misrepresenting Limeco’s assets. The Plaintiffs argue that the trial court erred in finding that the statute of limitations on the fraud claim began running in December 2003, when they filed their original complaint, because they did not learn of the fraud until March 2007, during the course of Kidd’s deposition testimony. We find this argument compelling in that as of December 2003, the Plaintiffs had knowledge of the breach — the fact that Limeco had failed to repay the loans and had failed to honor the continuing guaranty. However, what the Plaintiffs did not know until March 2007 was that Limeco had never possessed the assets to repay the debt incurred by Kidd, nor did Kidd have any intention to repay the loans. Thus, we remand for a jury determination as to whether the Plaintiffs used reasonable diligence.

¶ 29. Because we are considering the propriety of a trial judge’s grant of a motion to dismiss, the allegations in the Plaintiffs’ complaint must be viewed as true, and Kidd/Limeco’s motion to dismiss should not have been granted by the trial court unless it appeared beyond doubt that the Plaintiffs would be unable to prove any set of facts that supported their claim. See Burleson, 968 So.2d at 932. Based on our discussion of this issue thus far, we find the trial court erred in dismissing the fraud claim on the basis that the Plaintiffs did not state a claim upon which relief could be granted under Mississippi Rule of Civil Procedure 12(b)(6). In other words, from the record before us, we are not prepared to state that it appears beyond doubt that the Plaintiffs are unable to prove any set of facts in support of their claim that Kidd committed subsequent, affirmative acts to prevent the Plaintiffs from discovering they were fraudulently induced to enter into the loan agreements. Accordingly, we reverse and remand this issue to the trial court for proceedings consistent with this opinion.

¶ 30. The Plaintiffs also raise as part of this issue whether the trial court erred in dismissing the breach-of-continuing-guaranty claim. Because the Plaintiffs were aware of the breach of the continuing guaranty as early as 2002 and at the latest in December 2003, when they originally filed suit, the trial court did not commit error in dismissing this claim as being time-barred by the three-year limitations period provided in Mississippi Code Section 15-1-49 (Rev.2002).

Ill WHETHER THE TRIAL COURT ERRED IN RULING THAT LIMECO HAD NO CORPORATE LIABILITY.

¶ 31. The Plaintiffs argue that Kidd’s fraudulent misrepresentations while acting as managing director of Limeco give them leeway to pierce the corporate veil and hold Kidd liable for the torts he committed when acting as managing director of Limeco. To this end, the Plaintiffs cite Turner v. Wilson, 620 So.2d 545 (Miss. 1993), for the general premise that “when a corporate officer directly participates in or authorizes the commission of a tort, even on behalf of the corporation, he may be held personally liable.” Id. at 548. Piercing the corporate veil is predicated on a showing of fraud. Id. at 548-49.

¶ 32. The trial court found that there were no viable claims against Limeco due to the statute of limitations having run as to all claims, including the fraud claim. As a result, because Limeco could not be held liable, there was no basis for piercing the corporate veil to hold Kidd personally liable.

¶ 33. Because this issue is conditioned upon a showing by the Plaintiffs that their fraud claim was fraudulently concealed from them until 2007, we decline to address this issue and remand this issue to the trial court for further proceedings in accordance with this opinion.

CONCLUSION

¶ 34. In sum, the Plaintiffs’ first assignment of error is without merit inasmuch as the trial court correctly interpreted the statutory requirements for negotiable instruments pursuant to Mississippi Code Section 75-3-104 (Rev.2002). As to the issue of whether the breach-of-continuing-guaranty claim was improperly dismissed, we find that it was properly dismissed as time-barred. As to the issue of whether the fraud claim was improperly dismissed, we reverse and remand this issue to the trial court, for the reasons stated, for the jury to consider whether the claim was fraudulently concealed from the Plaintiffs until discovered in March 2007. Also, the final issue must be remanded to the trial court, since piercing the corporate veil to hold Kidd personally liable would be contingent on the Plaintiffs proving their fraud claim. Therefore, the final judgment of dismissal entered against R.W. Whitaker and Monty Fletcher and in favor of Limeco Corporation and William Kidd is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

¶ 35. AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

WALLER C.J., GRAVES, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . Except when necessary to refer to William Kidd or Limeco Corporation, individually, they will be referred to collectively as the Defendants.

      . Except when necessary to refer to R.W. Whitaker or Monty Fletcher, individually, they will be referred to collectively as the Plaintiffs.

      .Actually, the first complaint filed was that of T-REX 2000, Inc., against Brett Kidd and Jamie Kidd for alleged breach of a stock-purchase agreement. This suit was the byproduct of 2001 contract negotiations for the purchase of a hockey team in Tupelo, the T-Rex 2000 team. It later was consolidated with subsequent causes of action. Fletcher, 996 So.2d at 774-75. T-REX 2000, Inc., Brett Kidd, and Jamie Kidd are not parties before this Court in the current appeal.

      . The Supreme Court Clerk’s docket in the Fletcher appeal reveals, inter alia, that a notice of appeal was filed on July 20, 2007, and that on September 27, 2007, the trial court record was filed and a briefing schedule notice was issued.

      . In addition to fraud in the inducement of the loan agreements, the Plaintiffs also alleged that Kidd caused Limeco’s assets to be fraudulently transferred to his own personal entities and entities owned by Kidd’s family members.


source: Caselaw Access Project

author: CHANDLER, Justice, DICKINSON, Justice,

license: Public Domain

text:
    O.W.O. INVESTMENTS, INC. v. STONE INVESTMENT COMPANY, INC.
    No. 2008-CA-01620-SCT.
    Supreme Court of Mississippi.
    April 8, 2010.

      Nicholas Van Wiser, Biloxi, attorney for appellant.
    Jack Parsons, Tadd Parsons, Wiggins, attorneys for appellee.
   CHANDLER, Justice,

for the Court:

¶ 1. O.W.O. Investments, Inc., commenced a lawsuit against Stone Investments, Inc. (Stone Investments); John Diamond, individually, John Diamond; d/b/a Stone Ready Mix, LLC; and Diamond Disposal, Inc. (collectively, “Diamond”). The action involved a contract and an amended contract providing for O.W.O.’s purchase from Diamond of three hundred acres of land for a landfill in Stone County. O.W.O. alleged that Diamond had misrepresented that he owned the entire three-hundred-acre parcel when, in fact, 40.05 acres of the land were owned by Stone Investments. O.W.O. alleged that attorney Jack Parsons had represented Diamond at the execution of the contract. O.W.O. further alleged that Parsons also was the attorney for Stone Investments, and that Parsons had known, when the contract and the amended contract were executed, that the 40.05 acres were owned by Stone Investments, not Diamond. O.W.O. asserted claims for seller’s breach of warranties and representations, misrepresentation and fraud, imposition of a construction lien, and damages in the amount of $115,034, plus punitive damages. O.W.O. later filed a second amended complaint asserting a claim for tortious interference with contract.

¶ 2. The Chancery Court of Stone County denied Diamond’s motion for summary judgment and granted Stone Investments’s motion for summary judgment. O.W.O. voluntarily dismissed Diamond and pursued this appeal against Stone Investments, arguing that summary judgment was improper. Stone Investments argues that summary judgment was appropriate because, prior to O.W.O.’s execution of the amended contract, O.W.O. was placed on notice by a November 9, 2006, title opinion that the 40.05 acres were not included in Diamond’s real estate holdings. Stone Investments also argues that O.W.O. incurred no damages because O.W.O. never elected to purchase the property pursuant to the amended contract.

FACTS

¶ 3. On September 20, 2006, O.W.O. and Diamond executed a statement of intent to enter into a contract to purchase real estate. On September 28, 2006, O.W.O. and Diamond entered into a “Preliminary Contract for Purchase and Sale of Real Estate, Personal Property <& Equipment.” The subject property included three hundred acres of real estate in Stone County, free and clear of all liens and encumbrances. In the contract, Diamond represented and warranted that he had title to the three hundred acres. The acreage included a sixty-acre landfill, only ten acres of which had been approved by the Mississippi Department of Environmental Quality (MDEQ). The contract placed the responsibility upon O.W.O. to obtain MDEQ approval. The purchase was to include all the assets of John Diamond’s two businesses, Stone County Mix, LLC, and Diamond Disposal, Inc. The contract provided for a nonrefundable earnest-money deposit of $50,000 payable from O.W.O. to Diamond on or before September 28, 2006, to be credited against the purchase price. Diamond represented that all permits, licenses, zoning, and other authorizations to conduct business as a concrete plant and disposal site were “fully and completely transferrable or assumable by Purchaser in their present form and condition and without condition or modification.”

¶ 4. On November 17, 2006, O.W.O.’s attorney, David Wheeler, sent Diamond’s attorney, Parsons, a letter concerning the transaction. Wheeler stated that his review of the title had revealed that Diamond actually had title to only 259.05 acres, not the full three hundred acres under contract. The missing acreage, consisting of a 40.05-acre parcel, was owned by Stone Investments. Wheeler believed that Stone Investments had agreed to sell Diamond the 40.05-acre parcel for $160,000 so that Diamond could include it in the sale to O.W.O. Wheeler further stated that title to the 40.05 acres was not insurable and that a title-confirmation suit would be required to satisfy the title insurance company. Wheeler proposed that the parties take the following steps: (1) Stone Investments convey the property to Diamond in exchange for a deed of trust on the property for $160,000, payable on demand within ninety days; (2) Stone Investments and Diamond provide a signed letter of instruction to Wheeler to disburse $160,000 from the closing proceeds to Stone Investments, and an executed release of the deed of trust; (3) Diamond and O.W.O. execute a modification to the contract providing for two closing dates, the first for the 259.05 acres, and the second for the 40.05 acres, to take place after resolution of the title issues; (4) Wheeler prepare a suit to confirm title to the 40.05 acres in the name of Diamond.

¶ 5. Accordingly, on November 20, 2006, the parties entered into an amended contract that superceded the September 28, 2006, contract. The amended contract provided for O.W.O.’s purchase of the three hundred acres in two parcels, Parcel A-l for $1,620,000, and Parcel A-2 for $80,000. Parcel A-2 comprised the 40.05-acre parcel. The amended contract stated that O.W.O. had paid Diamond the $50,000 nonrefundable earnest-money deposit on or before September 28, 2006, to be credited against the purchase price of Parcel Al. Diamond both represented and warranted he had merchantable title to the three hundred acres and that he would commence a suit to confirm title to Parcel A-2 “in order to obtain insurable and good and merchantable title to said Parcel A-2.” The amended contract provided for a closing date on Parcel A-l of on or before January 3, 2007, with O.W.O. to give Diamond seven days’ written notice of the time and place of closing. The contract provided for a closing date on Parcel A-2 to be within fourteen days of the entry of a final, nonappealable order of the chancery court confirming fee simple title to Parcel A-2 in John Diamond.

¶ 6. On December 28, 2006, Wheeler sent a letter to Parsons requesting an extension of the closing date due to two problems. First, O.W.O. had not been furnished any evidence that the 40.05 acres had been conveyed to Diamond by Stone Investments. Second, due to amendments to the MDEQ rules and regulations concerning the operation of landfills, O.W.O. had been unable to confirm that the existing permit to operate the ten-acre landfill could be assumed by O.W.O. Wheeler averred that these two problems constituted material misrepresentations under the amended contract. Therefore, he requested extension of the January 3, 2007, closing date by thirty days, assuming O.W.O. had received written verification that the permit was transferrable, and assuming O.W.O. had been furnished proof of the transfer of the 40.05 acres to Diamond and the initiation of a title-confirmation suit. In a January 2, 2007, letter from Wheeler to Parsons, Wheeler stated he had received no reply to the December 28, 2006, letter. Wheeler stated that O.W.O. was unwilling to close until the issues were resolved.

¶ 7. On January 4, 2007, O.W.O. filed a complaint for specific performance and damages. O.W.O. alleged that during due diligence, questions had arisen as to whether certain environmental permits, licenses, zoning, and other authorizations were transferrable, and that Diamond had misrepresented that he had title to the full three hundred acres of land, while in reality, 40.05 acres were titled in the name of Stone Investments. O.W.O. claimed that Diamond had refused its request for thirty days’ additional time prior to closing to address these problems. On April 23, 2007, O.W.O. filed its first amended complaint for damages, requesting a return of the $50,000 earnest-money deposit, $40,084.80 in due-diligence expenses for engineering services to determine whether there was compliance with MDEQ regulations, attorneys’ fees, and punitive damages.

¶ 8. On April 20, 2007, Stone Investments filed a motion to dismiss for lack of jurisdiction. A basis for the motion was that, on March 19, 2007, it had sold the 40.05 acres to E-Z Disposal, Inc. In a response to the motion to dismiss, O.W.O. contended that a lis pendens on the 40.05 acres had been filed with the original complaint, which rendered the sale to E-Z Disposal, Inc., a nullity. On May 24, 2007, O.W.O. moved to add E-Z Disposal, Inc., as a necessary party. On September 20, 2007, the trial court entered an agreed judgment providing that the defendants would withdraw the motion to dismiss, and authorizing O.W.O. to file an amended complaint within fifteen days.

¶ 9. Stone Investments answered and admitted its ownership of the 40.05 acres, and that Diamond had represented to O.W.O. that it had full title to and right to sell the three hundred acres, including the 40.05 acres owned by Stone Investments. Stone Investments denied that Parsons had represented Stone Investments in the matter. Stone Investments counterclaimed for fraud, alleging that O.W.O. had fraudulently entered into a contract to purchase property, because O.W.O. continually had requested extensions and orally had offered an amount lower than the contract price. Stone Investments requested specific performance of the contract, removal of the lis pendens, and $400,000 in damages caused by the placement of the lis pendens on the property.

¶ 10. On April 30, 2008, Diamond moved for summary judgment. On the same day, Stone Investments filed a motion for summary judgment, asserting that a contractual relationship between Stone Investments and O.W.O. had never existed, and that there was no legal basis for the court to hold Stone Investments liable to O.W.O. for misrepresentations. Stone Investments requested dismissal from the lawsuit and cancellation of the lis pendens. Stone attached a copy of an unexecuted deed signed by Dana Parsons, the president of Stone Investments, conveying the 40.05 acres to Diamond, dated December 29, 2006.

¶ 11. O.W.O. filed responses to both motions. Its claims against Diamond centered upon Diamond’s misrepresentations that the landfill was in compliance with MDEQ regulations. As to Stone Investments, O.W.O. asserted that there were genuine issues of material fact that: (1) Jack Parsons was an authorized agent for Stone Investments; (2) he was an active participant in the contract negotiations on behalf of Diamond; (3) he was aware that Diamond was unable to perform the terms of the contract because Stone Investments owned the 40.05 acres; and (4) Stone Investments had concealed its ownership of the 40.05 acres until after O.W.O. had paid the $50,000 nonrefundable earnest-money deposit to Diamond. O.W.O. argued that there was a genuine issue of material fact that Stone Investments, acting through Parsons, had fraudulently induced O.W.O. to pay Diamond the earnest-money deposit.

¶ 12. On May 22, 2008, O.W.O. filed a motion to disqualify Parsons due to his status as a necessary witness in his capacity as agent for Stone Investments. On August 13, 2008, O.W.O. filed a second amended complaint, adding a cause of action for tortious breach of contract and claiming an additional $110,000 in actual damages.

¶ 13. In his deposition, Parsons stated that he was the attorney for Stone Investments and had acted as its agent on some occasions. Parsons stated that Stone Investments had acquired the 40.05 acres from the First National Bank of Wiggins on August 29, 2006, after the bank had acquired it in a foreclosure sale on August 18, 2006. He had been aware of the transaction at the time. Parsons stated that, in his representation of Diamond, he had participated in contract negotiations. However, he stated, it was not until after the September 28, 2006, contract that he first had become aware that this same 40.05-acre parcel was part of the three-hundred-acre parcel that his client, Diamond, had agreed to sell to O.W.O.

¶ 14. Dana Parsons, the president of Stone Investments, testified that he had authorized Parsons to tell John Diamond that Stone Investments would sell the 40.05 acres to Diamond if needed for inclusion in the sale to O.W.O. He also had authorized Parsons to tell Diamond that Stone Investments would deliver a deed upon payment, and he had authorized Parsons to prepare a proposed deed conveying the 40.05 acres to Diamond. Dana Parsons testified that he would have executed the deed to Diamond upon receipt of the purchase price.

¶ 15. Robert Windham, the president of O.W.O., testified by affidavit that Parsons had held himself out as the agent of Stone Investments, who was authorized to negotiate on its behalf and bind the company. Windham testified that, after he had discovered that Diamond did not own the 40.05 acres, Parsons had told him Stone Investments would not enter into a contract with O.W.O. Instead, Parsons represented that Stone Investments would convey the 40.05 acres to Diamond if and when he had sold the property to O.W.O. O.W.O.’s attorney, Wheeler, found this plan unacceptable. Subsequently, Parsons told Windham he would prepare a deed conveying the 40.05 acres to Diamond.

¶ 16. Windham further testified that, on the closing date, O.W.O. had been prepared but unwilling to close due to Diamond’s misrepresentations about the assets to be included in the sale, missing tax returns, missing employee lists, and missing MDEQ reports. Windham testified that O.W.O. wanted to close after these problems were resolved. Windham testified that, on January 4, 2007, he had obtained a letter from MDEQ stating that the landfill was noncompliant and that any successor in interest would be liable for bringing it into compliance. Windham testified that O.W.O. subsequently had purchased another piece of land and was no longer ready, willing, and able to buy from Diamond.

¶ 17. The summary judgment hearing occurred on June 19, 2008. The chancellor reserved ruling on the motion to disqualify Parsons and denied Diamond’s motion for summary judgment. At an August 14, 2008, hearing, the chancellor granted Stone Investments’ motion for summary judgment. The chancellor also removed the lis pendens. The parties agreed that O.W.O. would dismiss all claims against Diamond and pursue an appeal as to Stone Investments. The chancellor entered a final judgment, dismissing Stone Investments on August 25, 2008, nunc pro tunc August 14, 2008.

STANDARD OF REVIEW

¶ 18. Our standard of review of the grant or denial of a summary judgment motion is de novo. Kuiper v. Tarnabine, 20 So.3d 658, 660-61 (Miss.2009). The trial court “shall” grant a summary judgment motion “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). Summary judgment is appropriate if the nonmoving party has not made a sufficient showing to “establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Kuiper, 20 So.3d at 661 (quoting Smith ex rel. Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 177, 180 (Miss.2007)).

DISCUSSION

I. DID THE CHANCELLOR ERR BY GRANTING SUMMARY JUDGMENT TO STONE INVESTMENTS?

II. DID THE CHANCELLOR ERR BY NOT FINDING THAT PARSONS HAD A DUTY OF DISCLOSURE TO O.W.O. AS THE DUAL DISCLOSED AGENT OF DIAMOND AND STONE INVESTMENTS?

¶ 19. Although O.W.O. raises two issues on appeal, it provides no argument pertaining to the second issue. Accordingly, we do not address it, as this Court does not consider unsupported assignments of error. Touchstone v. Touchstone, 682 So.2d 374, 380 (Miss.1996). We note that our review of the grant of summary judgment embraces all relevant legal issues.

¶ 20. O.W.O. argues that there were genuine issues of material fact because there was sufficient evidence that Parsons had made a material misrepresentation that Diamond owned the entire three hundred acres under contract, and his misrepresentation constituted fraud and tortious interference with contract. The elements of fraud include:

(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.

Mabus v. St. James Episcopal Church, 884 So.2d 747, 762 (Miss.2004) (quoting Franklin v. Lovitt Equip. Co., 420 So.2d 1370, 1373 (Miss.1982)). These elements must be proven by clear and convincing evidence. Id.

¶21. Stone Investments argues that there was no evidence on the element of damages because O.W.O. never elected to purchase the property by giving Diamond written notice within seven days of the time and place of closing. Because O.W.O. never elected to purchase, Stone Investments argues, it is not entitled to a return of earnest money. See Gunn v. Heggins, 964 So.2d 586, 594 (Miss.Ct.App.2007); Hamilton v. Hopkins, 834 So.2d 695, 705 (Miss.Ct.App.2003). Moreover, Stone Investments argues that, because O.W.O. knew the true state of the title to the 40.05 acres before it executed the November 20, 2006, contract, O.W.O. had actual knowledge, negating the element of fraud that requires the hearer to have been ignorant of the representation’s falsity.

¶ 22. This Court finds that this case must be resolved through the application of agency principles. O.W.O. sued Parsons’s client, Stone Investments, not Parsons individually. “The relationship between client and attorney, regardless of the variations in particular compensation agreements or the amount of skill and effort the attorney contributes, is a quintessential principal-agent relationship.” CIR v. Banks, 543 U.S. 426, 436, 125 S.Ct. 826, 832, 160 L.Ed.2d 859 (2005). For liability to attach to Stone Investments based on Parsons’s misrepresentation, there must have been sufficient evidence to enable a jury to find that Parsons was acting as Stone Investments’ agent at the time that he made the alleged misrepresentation. A principal-agent relationship is “the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” Butler v. Bunge Corp., 329 F.Supp. 47, 49 (N.D.Miss.1971). An agent may bind his or her principal through actual or apparent authority. Barnes, Broom, Dallas and McLeod, PLLC v. Estate of Cappaert, 991 So.2d 1209, 1211 (Miss.2008). “Apparent authority exists when a reasonably prudent person, having knowledge of the nature and the usages of the business involved, would be justified in supposing, based on the character of the duties entrusted to the agent, that the agent has the power he is assumed to have.” Id. The existence of apparent authority is a fact question for the jury. Id.

¶ 23. The crux of O.W.O.’s fraud claim is that it paid Diamond $50,000 in earnest money in reliance on Parsons’s misrepresentation during negotiation and execution of the original contract that Diamond owned the entire three hundred acres. Parsons denied having had any knowledge at that time that his other client, Stone Investments, owned a portion of the land under contract. However, Parsons’s status as the attorney for Stone Investments would have been sufficient to enable a jury to find that he had the requisite knowledge and was guilty of a misrepresentation. Nonetheless, even if Parsons committed a misrepresentation, viewing all of the evidence in the light most favorable to O.W.O., there was no evidence that Parsons was acting on behalf of Stone Investments at the relevant time. The evidence was that Parsons had represented Diamond during the negotiation and execution of the original contract; Stone Investments was not a party to that contract. No evidence tended to show that Stone Investments had cloaked Parsons with any authority to act on its behalf during the negotiation and execution of the original contract between Diamond and O.W.O. Rather, the evidence was that Stone Investments had authorized Parsons to negotiate with Diamond and to communicate with O.W.O. on its behalf only after O.W.O. had discovered that Stone Investments owned the 40.05 acres. Simply put, Stone Investments was not “at the bargaining table” during the negotiation and execution of the original contract. Because there was no evidence that Parsons was acting on behalf of Stone Investments at the relevant time, his alleged misrepresentation did not bind Stone Investments as a matter of law, and Stone Investments was entitled to summary judgment.

¶24. Additionally and alternatively, and viewing the evidence in the light most favorable to O.W.O., O.W.O. waived its claim to recover the earnest money by entering into a new contract which superceded the original contract. O.W.O. alleged that it had paid the earnest money in reliance on the fraudulent misrepresentation by Parsons during the negotiation and execution of the original contract. O.W.O. sought to recover the earnest money from Stone Investments as damages for Parsons’s alleged fraudulent misrepresentation. It is undisputed that, when O.W.O. discovered the misrepresentation, it did not seek recission of the contract. Instead, with full knowledge that Diamond did not own the 40.05 acres, O.W.O. executed an amended contract providing that O.W.O. would close on the 259.05 acres on the original closing date of January 3, 2007, and would close on the 40.05 acres in a separate transaction to take place fourteen days after a lawsuit confirmed Diamond’s merchantable title to that parcel.

¶ 25. It is well-established that “a buyer who has been deceived by material false representations in the procurement of a contract may elect to rescind and to be restored to the position he occupied at the time of sale.” Browder v. Williams, 765 So.2d 1281, 1285 (Miss. 2000). It also is well-established that:

Where the person defrauded after having knowledge of the fraud enters into a new contract concerning the same subject matter, or an agreement modifying the original contract, or renews the original contract for an additional term, or asks favors, as, for example, requesting an extension of time for performance, he will ordinarily be regarded as having waived the fraud in the original transaction. ...

Hines v. Hambrick, 210 Miss. 358, 368-69, 49 So.2d 690, 694 (1951); see Gardner v. Little, 755 So.2d 1273, 1276 (Miss.Ct.App. 2000) (stating that, “[i]f the Gardners felt that the Littles misrepresented the corporation’s net worth or acted in bad faith, then they were required to either promptly rescind the contract or affirm the contract and maintain an action in damages”). Instead of seeking recission of the contract or affirming the contract and suing for damages, O.W.O. elected to execute an amended contract that superceded the original contract. The amended contract provided a course of action by which the title problem with the 40.05 acres would be remedied before the parties closed on that parcel. Therefore, by entering into the amended contract, O.W.O. waived its claim for the return of earnest money based upon the alleged fraudulent misrepresentation.

¶ 26. We turn to O.W.O.’s tor-tious-interference-with-eontract claim. O.W.O. claims that Parsons’s misrepresentation as to Diamond’s landholdings during negotiation and execution of the original contract constituted tortious interference with contract. The elements of tortious interference with contract are:

(1) that the acts were intentional and willful; (2) that they were calculated to cause damage to the plaintiffs in their lawful business; (3) 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 constitutes malice); and (4) that actual damage and loss resulted.

Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 48 (Miss.1998). The plaintiff must prove that an enforceable obligation existed between itself and another party, and that, but for the defendant’s interference, the contract would have been performed. Id. Considering the evidence in the light most favorable to O.W.O., there was no evidence that Parsons was acting on behalf of Stone Investments during Diamond’s negotiation of the original contract with O.W.O. Additionally, there was no evidence from which it could be inferred that Parsons had concealed Stone Investments’s ownership of the land with the unlawful purpose of causing O.W.O. to suffer damage and loss, or that his conduct was calculated to cause damage to O.W.O. in its lawful business. We find that there was no genuine issue of material fact, and Stone Investments was entitled to a judgment as a matter of law.

CONCLUSION

¶ 27. Viewing the evidence in the light most favorable to O.W.O., Parsons was not acting on behalf of Stone Investments during the negotiation and execution of the original contract between Diamond and O.W.O., and any misrepresentation committed by Parsons during that time did not bind Stone Investments. Additionally and alternatively, O.W.O. waived any claim for the return of earnest money based upon fraud by executing the amended contract with full knowledge of the alleged misrepresentation. Accordingly, the trial court appropriately granted Stone Investments’ motion for summary judgment.

¶ 28. AFFIRMED.

GRAVES, P.J., RANDOLPH, KITCHENS AND PIERCE, JJ„ CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., CARLSON, P.J., AND LAMAR, J.

DICKINSON, Justice,

dissenting:

¶ 29. Because I cannot agree with majority’s decision to affirm the chancellor’s grant of summary judgment, I must respectfully dissent. The affidavit of Robert Windham, owner and CEO of O.W.O. Investments, Inc. states in pertinent part:

At all times during all negotiations which took place between myself and John Diamond, Jack Parsons represented to me that he was an authorized agent, (although not a principal) of Stone Investments and that he was authorized to negotiate for them and bind to said company. to
At all times during said negotiations, Jack Parsons and Stone Investment were aware and fully knowledgeable that the 40.5 acres included in the 300 acres John Diamond was negotiating to sell to us was not owned by John Diamond but was, in fact owned by Stone Investment. CO
O.W.O. was induced to sign the contract, first by John Diamond’s representation to O.W.O. that he owned the entire 300 acres that was the subject matter of the contract. This representation was made in spite of the fact and with the full knowledge and participation of Stone Investment by and through its agent, Jack Parsons, all the while knowing that 40.5 of the acres out of the total 300 was not, in fact, owned by John Diamond and Stone Investment, though its agent, Jack Parsons, did participate in this representation.

¶ 30. Parsons stated in his deposition that “people think that I am the, quote, master, end quote, of Stone Investment, which is quite erroneous.” He admitted to acting as an agent of Stone Investments on occasion. Jack Parsons’s son, Dana Parsons, is the president of Stone Investments. Viewing this evidence in the light most favorable to O.W.O., a question of material fact exists as to whether O.W.O. was induced to enter the contract and the later amended contract by the allegedly fraudulent representations of Stone Investments through its purported agent, Jack Parsons. And I respectfully disagree with the majority’s conclusion that “O.W.O. waived any claim of fraud by entering into an amended contract.” Indeed, fraudulent inducement to enter into the amended contract is part of the plaintiffs claim. I would reverse and remand this case for a trial on the merits, and therefore must respectfully dissent.

WALLER, C.J., CARLSON, P.J., AND LAMAR, J., JOIN THIS OPINION.

      . Parsons represented Diamond and Stone Investments before the chancery court and he represents Stone Investments on appeal.

      . The $50,000 was not held in escrow, but was paid directly to John Diamond.

      . E-Z disposal was never added.

      . Dana Parsons is Parsons’s son.

      . Even assuming the dissent’s argument is correct, and the evidence was sufficient to create a genuine issue of material fact that Parsons was acting as Stone Investments’s agent at the relevant time, O.W.O. waived any claim of fraud by entering into an amended contract.