Mississippi Supreme Court Opinions Hand Down Date 2/10/05




TOPIC(S): Contract - Counterclaim - Jurisdiction - Section 9-9-21 

TRIAL JUDGE: Hon. Billy Joe Landrum

TRIAL COURT: Jones County Circuit Court

ATTORNEY(S) FOR APPELLANT:  Marcus Douglas Evans, Robert D. Gholson, Thomas T. Buchanan

ATTORNEY(S) FOR APPELLEE: Lawrence E. Abernathy, III, Jeannene T. Pacific

AUTHOR: Justice Randolph

FACTS: As a result of a disputed vehicle sale, Hobbs Automotive, Inc. d/b/a Kim's Chrysler, Dodge, Jeep,Toyota, filed a complaint for replevin without bond in the County Court of Jones County against Shelia and James Dorsey.  The Dorseys filed a counterclaim alleging fraudulent misrepresentation, breach of contract and fraudulent inducement.  The Dealership moved to dismiss its complaint, which was granted.  The Dorseys did not dismiss their counterclaim.  Following a trial, the jury rendered a $100,000 verdict in the Dorseys' favor.  The Dealership appealed to circuit court which affirmed.  The Dealership appeals.

ANALYSIS: Section 9-9-21, the jurisdictional statute in effect at the time the counterclaim was filed, provided that the jurisdiction of the county court shall not be affected by any counterclaim where the amount sought to be recovered exceeds $75,000.  In their counterclaim, the Dorseys sought compensatory damages in an amount not to exceed $100,000 and punitive damages for an unspecified amount. These sums exceeded the jurisdictional limit of the county court.  Pursuant to section 9-9-21, the Dorseys were required to give notice to the Dealership, and both parties were required to make a motion, within twenty days after the filing of Dorseys' counterclaim, to transfer the case to the circuit or chancery court of the county in which the county court was located. No such notice was given, and the parties failed to make a motion within twenty days.  Since the parties did not follow these procedures and the counterclaim failed to comply with the then jurisdictional prerequisites, the counterclaim can not be adjudicated in county court.

HOLDING: Vacated and dismissed.




TOPIC(S): Contract - Consideration - Exercise of option - Counteroffers - Statute of frauds

TRIAL JUDGE: Hon. Jon M. Barnwell

TRIAL COURT: Leflore County Chancery Court


ATTORNEY(S) FOR APPELLEE: David W. Mockbee, Jason Edwin Weeks

AUTHOR: Justice Dickinson

FACTS:  Johnny Rayburn entered into a Contract and Agreement to purchase 1,142 acres of land from Dan O'Neal and E.C. Stewart, Jr.  Rayburn later assigned his interest to Andrew Creely, Sr.  Six days after the assignment to Creely, Danmar, Inc. and Stuart Company entered into a contract to sell Buck Ridge Hunting Club of Mississippi, Inc., the same property. The sole shareholder of Buck Ridge Hunting Club of Mississippi, Inc., was Delbert Hosemann.  When Creely learned of the Buck Ridge contract, he and Rayburn filed a Complaint for Temporary Restraining Order, Permanent Injunction and Specific Performance of Contract against Dan O'Neal; E.C. Stuart, Jr.; Danmar, Inc.; and Stuart Land and Timber, LLC, to prevent the sale.  Creely and Hosemann reached a compromise. In exchange for releasing his claim under theBuck Ridge contract, Hosemann received an option from Creely to purchase a one-half undivided interest in the portion of the 1,142 acres known as “The Scatters.”  The suit was dismissed, and Danmar, Inc., and Stuart Land and Timber, L.L.C., executed a release of real estate purchase and sale agreement in favor of Buck Ridge Hunting Club and Hosemann.  Sometime later, Creely wrote Hosemann a letter indicating that he did not want to sell the property.  Hosemann filed suit against Creely seeking specific performance of the option contract. Creely filed a counterclaim alleging misrepresentation and fraud.  The court entered a final judgment in favor of Hosemann on both the complaint and the counterclaim and ordered specific performance of the option contract.  Creely appeals.


Issue 1: Consideration

Creely argues that Hosemann provided no consideration for the option agreement, because Hosemann gave up nothing by settling the litigation.  It is not the potential recovery in the lawsuit that provides consideration in a settlement, but rather the right to pursue the recovery. In this case, Hosemann relinquished his right to pursue his claim that his contract for the purchase of the 1,142 acres was valid. This abandonment of the right to pursue a claim provides the necessary consideration.  Additionally, the option contract's recital of consideration creates a rebuttable presumption that consideration was provided.  Creely also argues he is entitled to set aside Hosemann's claim of consideration because it was based upon a misrepresentation.  However, the record shows that it was Creely who did not inform Hosemann of defects.  Creely argues that Hosemann should not be allowed to personally seek enforcement of the option contract because the buyer in the real estate contract was Buck Ridge Hunting Club, not Hosemann, and that if he had known that Hosemann did not personally have the contract, he would not have entered into the option agreement.  There is no question that Hosemann had the authority to sign the option agreement and bind Buck Ridge Hunting Club to the consideration that was given for the option.

Issue 2: Exercise of option

Creely argues that Hosemann failed to exercise the option.  Written notice to the seller of intent of the option holder to exercise an option has the effect of an acceptance, converting the option into an enforceable bilateral contract. It is not necessary for an option holder to tender the purchase price in order to exercise the option.  Here, the option contract provided a specific time in which Hosemann was required to exercise the option.  However, the contract failed to express a closing date.  Therefore, the date of closing was to be within a reasonable time from the date of exercising the option.  Because Creely and Hosemann engaged in numerous activities from the exercise of the option by Hosemann until he tendered payment, this issue has no merit.

Issue 3: Counteroffers

Creely argues that Hosemann's seven counter-offers extinguished the option.  Both parties made numerous attempts to prepare an acceptable deed and to negotiate missing or unclear terms, but these efforts do not rise to the level of counter-offers.  When the option to purchase the land was exercised by Hosemann, the option became a valid and binding contract and the option agreement no longer existed.

Issue 4: Statute of frauds

Creely argues that changes to the option contract were not in writing and violated the Statute of Frauds.  Because there were no material changes to the option contract, this assignment of error is without merit on its face.

HOLDING: Affirmed.



SEALY v. GODDARD, NO. 2003-IA-02144-SCT

TOPIC(S): Wrongful death - Personal jurisdiction - Long-arm statute - Section 13-3-57 - Individual heirs

TRIAL JUDGE: Hon. Michael J. Eubanks

TRIAL COURT: Lamar County Circuit Court

ATTORNEY(S) FOR APPELLANT: Lawrence Cary Gunn, Jr.

ATTORNEY(S) FOR APPELLEE: Morris Sweatt, James Coleman Rhoden

AUTHOR: Justice Carlson

FACTS:  George Sealy, a Louisiana resident, was driving his vehicle on a public road within the confines of Little Black Creek State Park in Lamar County, when he struck a pedestrian, eighteen-month-old Michael Goddard, III.  Michael's mother, Jeanie Danos, an adult resident citizen of Mississippi, filed suit in the Lamar County Circuit Court.  In the amended complaint, the named defendants were George Sealy and United Agents Insurance Company, In Receivership, and Louisiana Insurance Guaranty Association.  The Louisiana Insurance Guaranty Association filed a motion to dismiss and a suggestion of death with an attached certified copy of a death certificate revealing that George Sealy, age 79, died of natural causes. The plaintiffs conceded that the insurance carrier and LIGA should be dismissed as party defendants, and incorporated into their motion to dismiss, a motion to substitute party wherein the plaintiffs requested the circuit court to substitute the Estate of George Sealy in the stead of George Sealy.  The court dismissed LIGA and directed that an alias summons be issued for service upon the attorney of the Estate of George Sealy.  Although already dismissed as a party, LIGA filed an amicus curiae motion to dismiss alleging that the circuit court had not acquired jurisdiction.  The court entered an order in response to LIGA's amicus curiae motion to dismiss, but did not dismiss the lawsuit.  The court granted the plaintiffs leave to have alias process issued for Gloria Poche Sealy, Patrice Sealy Torres, Douglas Sealy, and Rachel Sealy Kimble Although these individuals were not parties to the litigation, each summons directed the named heir to file responsive pleadings to the attached amended complaint within thirty days of service of process, failing which the named individual would suffer a judgment by default.  LIGA once again appeared amicus curiae, over the plaintiffs' objection, and filed a motion to dismiss, requesting that the court dismiss with prejudice all claims against the estate, or alternatively, that the court quash process as to the Sealy heirs.  The court denied the motion and ordered that since the Sealy heirs had been served with process, they were to file responsive pleadings to the amended complaint within thirty days of the date of the order.  The Sealy heirs petitioned the Supreme Court for an interlocutory appeal, which was granted.

ANALYSIS:  The Sealy heirs argue that, although the court asserted personal jurisdiction over them pursuant to section 13-3-57, the long-arm statute, none of the grounds for exercising jurisdiction enumerated in the statute are met in this case.  The allegedly negligent non-resident Sealy died prior to the plaintiffs' commencement of this action. Sealy was sued individually and then after suit was commenced and the plaintiffs learned that Sealy was deceased, they started a series of actions which attempted to join as defendants insurance companies, Sealy's estate, and Sealy's heirs. Under the express language of section 13-3-57, once Sealy died, service of process could only be made upon the nonresident executor, administrator, receiver, trustee or any other selected or appointed representative of Sealy. Clearly, none of these statutory terms apply to the

individual Sealy heirs.  Therefore, the court erred in finding that the Sealy heirs could be served with process under section 13-3-57 and compelled to respond to the plaintiffs' complaint under penalty of a default judgment for money damages being entered against them if they failed to so respond.

HOLDING: Reversed and rendered.



TOPIC(S): Child custody - Jurisdiction - Section 43-21-105(k)

TRIAL JUDGE: Hon. Patricia Daniel Beckett

TRIAL COURT: Warren County Youth Court



AUTHOR: Chief Justice Smith

FACTS:  JMB filed a Petition for Adjudication alleging that she was unable to care for her 10-month-old child, LDM, who needed supervision. She requested that temporary custody be given to the child's great grandmother.  An order was entered granting custody of the child to the child's great grandmother.  Two years later, JMB requested and received a temporary order for visitation.  Later, JMB filed a motion to restore custody.  A guardian ad litem was appointed and recommended that the great grandmother be given permanent custody of the child.  The Youth Court ordered that the child be returned to her mother, and the great grandmother appealed.  The Supreme Court vacated the order and remanded the case to the Youth Court.  On remand, the judge ruled that the court did not have jurisdiction over the matter and transferred the entire case to the chancery court.  By the time this matter was remanded and ruled on by the Youth Court Judge, LDM had been placed in the physical custody of her maternal grandmother.  JMB had signed an affidavit for voluntary relinquishment of parental rights in connection with an adoption proceeding, in which the grandmother and her husband were trying to adopt the child.  The great grandmother intervened in the adoption proceeding and a district court in Texas entered an Order of Dismissal of the Original Petition to Terminate Parent-Child Relationship and of the Original Petition for Adoption of Grandchild filed by CB and her family. 

ANALYSIS: The Youth Court's jurisdiction was purportedly established since the child was alleged to be a “child in need of supervision” because the mother was unable to provide appropriate care. However, since a 10-month-old child does not meet the definition of a child in need of supervision as set forth in section 43-21-105(k) of the Mississippi Youth Court Act, the Youth Court did not have jurisdiction over this case. Instead, this is a child custody dispute that should be heard and disposed of in chancery court.  Therefore, the Warren County Youth Court did not err by transferring this case to the Warren County Chancery Court.

HOLDING: Affirmed.


BUSH v. STATE, NO. 2003-KA-01528-SCT

TOPIC(S): Capital murder - Suppression of statement - Sufficiency of evidence - Right of confrontation - M.R.E. 801(d)(2)(E) - Statement by co-conspirator - Prior convictions - Balancing test - M.R.E. 609(a)(1) - Prosecutorial misconduct

TRIAL JUDGE: Hon. Kosta N. Vlahos

TRIAL COURT: Harrison County Circuit Court


ATTORNEY(S) FOR APPELLEE: Office of the Attorney General: W. Daniel Hinchcliff

AUTHOR: Presiding Justice Waller

FACTS:  Kanynne Bush was convicted of capital murder with the underlying felony being armed robbery. He was sentenced to life in prison without probation or parole.  He appeals.


Issue 1: Suppression of statement

Bush argues that his confession to the crime was not the result of his free and rational choice. Bush argued before the trial court that any statements made to the officers during their interview with him were inadmissible because of the failure to comply with Miranda and because a warrant for Bush's arrest had not been issued. Bush's attorney explicitly stated that Bush had not confessed to the murder, and Bush told the court he had not even spoken to the officers about the murder.  Bush may not argue one defense in a motion to suppress and then, on appeal, use a completely different defense to cite the trial court for error.

Issue 2: Sufficiency of evidence

Bush argues that the evidence is insufficient.  Considering the evidence in the light most favorable to the State, there was sufficient evidence to convict Bush of capital murder with the underlying felony being armed robbery. Bush both confessed to and described the murder, giving the officers details about the incident, including the fact that the purpose of the robbery attempt was to rob the store's safe, that the cashier was pregnant, and that he shot the cashier's boyfriend after he refused to get on the floor, and that three females worked with him in committing the crime.  His description matched the accounts of both the cashier, who personally suffered through the ordeal, and a person who helped plan the robbery. 

Issue 3: Right of confrontation

Bush argues that a witness's testimony regarding anything one of the co-defendants may have said violated Bush's Sixth Amendment right to confrontation.  M.R.E. 801(d)(2)(E) provides that a statement is not hearsay if the statement is offered against a party and is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.  Because Bush cites no statements attributed to the co-defendant which she made outside the furtherance of the conspiracy, this issue is without merit.

Issue 4: Prior convictions

Bush argues that the court inappropriately allowed evidence of his prior convictions and failed to conduct an on-the-record balancing test before allowing the convictions into evidence.  Bush is procedurally barred from raising the issue of the trial court's alleged failure to conduct an on-the-record analysis, because he failed to object.  In addition, the trial judge considered the time of the prior bad acts, the similarity between one of the convictions and the current charge, and how allowing the prosecution to impeach Bush with his prior convictions was valuable in that it allowed the State to provide the jury with necessary information to help in its search for the truth.  It is apparent that the judge appropriately satisfied the requirements of M.R.E. 609(a)(1) by conducting a substantive balancing test.  Where an accused, on direct examination, seeks to exculpate himself, such testimony is subject to normal impeachment via cross-examination, and this is so though it would bring out that the accused may have committed another crime.  Here, Bush, on cross-examination, said that he didn't like guns, knives, or anything of that nature.  The State properly brought his credibility into question when it used his criminal history to demonstrate that contrary to his alleged fearful disposition towards weapons, he had previously been convicted of robbing a boy of his jacket, armed robbery, and armed kidnapping.

Issue 5: Prosecutorial misconduct

Bush argues that during closing arguments the court inappropriately allowed the State to refer to his veracity, criminal record, and danger of allowing him to live in society.  The State appropriately highlighted both the threat Bush has proven he poses to society and his apparent struggles with being completely forthright on the stand. In doing so, the State merely appealed to the jury based on facts that were a part of the record and the natural deductions and conclusions that the prosecution drew therefrom.

HOLDING: Affirmed.



Rule 22 of the Mississippi Rules of Appellate Procedure and the Comments thereto are amended.